Restriction of trade?

[SueEllen]

Yet again you guys miss the point.

The agency is not seeking to restrict the worker. As you point out (correctly) they would be on sticky ground and it would be potentially unenforceable due to regs and restraint of trade etc.

What the agency CAN do is have a clause in the contract for a pre-agreed transfer fee that will be payable should the client engage the services within the restriction period.

It's the outsourcer NOT the client who wants the worker's services.

The agency has no contract with the outsourcer in any shape or form.

[Andy Hallett]

the agency said I couldn't as i had a 12 month clause in my contract and the outsourcing company looked into buying me out for the remaining 3 months.

Would guess that this clause covers suppliers and clients, the client has probably reflected this in their agreement with outsourcer - hence restriction.

[TheFaQQer]

But doesn't the correct opt in/out option negate this? Or is that just to take him on as perm?

Opt in / out only applies to any restriction between contractor and agency.

If there is a restriction between client and agency (probable, if not definite) then it's not restraint of trade at all. Client needs to negotiate with the agency.

If there is a restriction between agency and contractor then opt out becomes relevant. If the contractor was opted in then they can go direct quicker than if not. Agency needs to negotiate with contractor to resolve, if contractor was opted out correctly.

If there's both then everyone needs to negotiate with everyone else.

[GB9]

I reiterate.

I have been there and done it. I had a very nice (expensive) legal firm point out the error of the agency's ways. Eventually the agency got some proper legal advice (rather than just saying the contract says .....) and backed down pretty sharpish.

Opt-in / opt-out is completely irrelevant here. I had opted out but that wasn't even a consideration. What they are asking is completely unrealistic. It sounds like an attempt has been made to compromise and that has been declined.

If you are serious then ask someone in the Commercial team here Brethertons It will cost a few quid but you will get a much better opinion relevant to your own circumstances than asking a forum.

[Wanderer]

If you are serious then ask someone in the Commercial team here Brethertons It will cost a few quid but you will get a much better opinion relevant to your own circumstances than asking a forum.

Interesting to hear that someone has taken them on and won. Can we be so bold as to ask how much these guys charged to review your case and slap the agency down?

[Andy Hallett]

Interesting to hear that someone has taken them on and won. Can we be so bold as to ask how much these guys charged to review your case and slap the agency down?

This is the problem for you guys.

1) Legal advice costs money
2) No guarentee agency will back down
3) Client seeks easy life and engages baggage free contractor

[GB9]

This is the problem for you guys.

1) Legal advice costs money
2) No guarentee agency will back down
3) Client seeks easy life and engages baggage free contractor

1) Yes, agree, but in my case I was insured against such eventualities.
2) Also possible. If both side believe they are in the right.
3) Both existing and future client removes agency from supplier list.

In my case the agency in question was offered a cut-in by both myself and future client and declined as it wasn't large enough, so a fair argument might be that it was a bad commercial decision on the part of the agency.

I would suggest all contractors have insurance against such eventualities.

[Wanderer]

This is the problem for you guys.

1) Legal advice costs money
2) No guarentee agency will back down
3) Client seeks easy life and engages baggage free contractor

Yep, agency bluff and bluster tactics often wins the day and if that fails then they adopt the position of the dog in the manger.

It's a bit of a tulipty business model to have though isn't it....

[SueEllen]

This is the problem for you guys.

1) Legal advice costs money
2) No guarentee agency will back down
3) Client seeks easy life and engages baggage free contractor

Getting the legal advice up front is cheaper and actually doesn't cost that much.

Also agencies tend to behave themselves once they realise they are dealing with a real solicitor and so silly clauses like that aren't left in as they are told they will be ignored because they are unenforceable.

[stebain3258]

Steve

Not much of a leg to stand on here.
Spoke to Agency and was told that every extension on my contract was a 'new' contract and that the clause was for 12 months AFTER i complete the contract, so the 12 months starts again after each extension and remain when i finish there.
Another querie is that I wasn't given the option to OPT IN and was automatically put into OPT OUT, that from what I've read is illegal as the agency has to give me that option to choose. I have never seen a contract regardless of signing one as it was between them and the client. I know that I don't have to as once i start the job it is binding as I accepted it.