Exclusion Clause - How tight are they?

[ellisj01]

Has anyone experience of having a contract lapse then go through another agency but at the same client. What is the position of the original agency in terms of the new contract and can they pursue for lost earnings? Does anyone have a similar experience?

Regards, John.

[Mailman]

Generally these clauses are toothless. Generally its accepted that for these clauses to be effective they must be specific to where you cannot work.

For example, a toothless clause would say something like "cannot work for x-client". The problem with this is that the clause itself is far to general and would most likely be struck down in a court of law.

However, if that clause said "cannot work at location y of client x" then you most likely will get your arse handed to you in a court (if you were sued).

Also with the new agency regulations, if you have opted in, there must be the opportunity for you to go direct with the client after either a set period (so they can be managed out of the relationship) or after a set amount of time 12-14, weeks I believe. If no such clause exists then you are perfectly able to go direct with the client at the end of your contract and be safe from any legal proceedings (including financial penalty).

If an agent does get giggy with you after you go direct and they threaten to with hold any money owed OR threaten to take legal action then its best you got proper legal adice.

The above is from my experience when an agent made the mistake of with holding several thousand pounds from me (and then demanded even more on top). The end result for them was a defeat in court, payment of interest and expenses and them having to rewrite all their contracts with their "clients".

Mailman

[IT contract agent]

the agency will likely have a non-solicitation clause in their contract meaning you can;t go back to work for the client whithout going through them for 3/6/12 months after you last worked on that client site. If you do go back to work for them the agency can chase the client. They can't really chase the contractor because of restriction of trade 'n' all that. Come work through me and I'll look after you! lol

[Mailman]

If you are opted in then these non-solicitation clauses are pointless since the regs clearly allow for contractors to go direct at the end of the contract.

Also, it is up to the agents to prove that you approached the client in the first place. If you are an excellent worker then I would expect the client would be asking you to stay on near the completion of the contract.

Mailman

[IT contract agent]

if you have opted in then it is different (why anybody but a factory worker or a receptionist would opt in is beyond me though.)

It’s not up to the agency to prove you contacted the client - it has nothing to do with who contacted who. If the agency finds you're back on site then, depending on their contract, they can take action against the client.

[BillHicksRIP]

if you have opted in then it is different (why anybody but a factory worker or a receptionist would opt in is beyond me though.)

Can you explain why you think this for us slow ones at the back please?

[VectraMan]

My contract (between the agency and umbrella) has a similar clause, but what really worries me is the "guarantee" which I've personally signed which says:

"he shall not for a period of six months following the termination of the assignment supply services directly, or through another Limited Company, save for through (agency name), to the client identified in the agreement".

Seems to me that if I were to try to do this, the client, my umbrella company and me would all be fair game.

My question is, what does "supply services" mean? That sounds very vague.

And to me "through another limited company" in that context means through another agency, whereas if I was using my own limited company rather than the umbrella I'm currently with, that would not be the same thing. And for that matter, I've signed the agreement as an individual. My own limited company has signed no such agreement.

[Mordac]

What you're forgetting is that the agency also has a contract with the client, which includes the same clause (i.e. thou shalt not poach our contractors without paying us a hefty fee). It's meant to cover contract-to-permie situations, but easily covers against the client taking contractors directly. The client won't risk getting sued, so if you're going to try it, make sure you don't advertise the fact to the agency. At the very least, take a couple of weeks off and tell them you got a contract elsewhere.

[boredsenseless]

And to me "through another limited company" in that context means through another agency, whereas if I was using my own limited company rather than the umbrella I'm currently with, that would not be the same thing. And for that matter, I've signed the agreement as an individual. My own limited company has signed no such agreement.

So why is a ltd cmpany agency different in your eyes to a ltd company VectraMan tax shell?

Oh yeah thats right your a disguised employee bitter at agents taking a cut for doing the hard work and finding you a job.

FFS a contract is there for a reason if you don't like don't ******* sign it in the first place - its d1ckheaded morals like this that give us a bad reputation. Behave like a business and maybe one day businesses will start to engage with us like a business.

[Mailman]

The law over rides any contract, as long as you have opted in then you can go direct with the client at the end of your contract.

The only way around this for the agent is if they included a clause that allowed for them to be managed out of the relationship at the end of the contract. This would most likely take the form of an extended contract (for say 3 months) which at the end means you can change agents or contract direct.

if you have opted in then it is different (why anybody but a factory worker or a receptionist would opt in is beyond me though.)

Seems a common statement from various contractors but the reality is...if you want to protect yourself then opt in to the regulations. It makes no difference to your tax status to the IR (because they are going to come after you regardless if you are opted in or out or shake it all about).

I like the extra "protection" you receive from the regulations when it comes to being paid. Sure, if you are a business you can use the system to get money if an agent stiffs you BUT its going to be a heck of a lot harder to get that money out of the scum if you dont have something like the agency regs to back you up (since agents can not force you to stay with them and they must pay you regardless of whether they have been paid, amongst other things).

In fact when some agent pond scum tried to stiff me out of several thousand pounds my solicitors told me that the only reason I got my case resolved so quickly was because of the agency regulations.

I like to look at this from a different pov. As a business its in my interest (and the interest of my shareholders) to ensure that I minimise the risk from not being paid for work carried out for my company. The Agency Regs helps me minimise this exposure.

Mailman