Reply to: Trying to understand handcuff clause details / Consultancy

[Andy Hallett]

Trying to understand handcuff clause details / Consultancy

Just because Ann says it is naughty doesn’t make it unenforceable.

He won’t contact those lawyers either, legal advice on CUK is much cheaper...

[BlasterBates]

Their rights are unaffected, its enforceable whether they offer an extension or not

!

What is absolutely not legal and justifiable is the abuse of these clauses by recruitment consultants at agencies,'' says Ann Swain, chief executive of the London-based Association of Technology Staffing Companies which joins and regulates 80 recruitment agencies in the UK.

So if, when contract renewal time comes up, an agency says that you must accept a lower fee to do the same job for the same client, or that you should do two jobs for the same money, just say that you will go work directly for the client if the agency insists. When the recruitment consultant at the agency threatens you with the restrictive covenant, just cite this article and warn that the consultant is out of line.

If the agency is getting a replacement in and threatening the contractor to back off, that is clearly an abuse of the handcuff clause and I would advise contacting the law firm Jones Day and they will get the Agency to back down.

[Andy Hallett]

If the current agency is not offering an extension or a cut then they have a very weak case. The handcuff clause is not there to stop fair competition.

Their rights are unaffected, its enforceable whether they offer an extension or not

Not to ask a very stupid question, but how will they find out?

They will likely check everyone who has finished....

Perhaps I missed it, but is "Client" in the contract clause you cited defined as the end client or the consultancy you are currently with?

As I read it, the 'Client' is the Consultancy. The clause does not prohibit 'Client of the Client' although unless you read all the definitions and the full clause then we are guessing.

Then you need to get the end client to do the talking to make sure their multiple consultancies don't get the hump. They have the contractual relationship with the consultancies and should be managing your transition to another one.

And we have a winner!!!

[eek]

I read this is all his idea purely to avoid the handcuff.

The OP only revealed that the consultancy he currently works through wishes to replace him in his fourth post.

So if he's trying to escape a handcuff clause that's the OP's problem and will create the turf war I mentioned earlier.

if the poster has not received a renewal from the consultancy then while I can see the consultancy would be annoyed I don't think there is anything they can do about it.

[northernladuk]

From what I understand the consultancy is looking to replace him. The client has evidence of this, so I think the case would be weak. I presume that due to this there is no offer for an extension.

Anyway, my plan is to jump to one of them AFTER my contract ends. The old one will still be around.

I read this is all his idea purely to avoid the handcuff.

[BlasterBates]

This is very true but looking at his terminology he says he's switching when contract lapses. He's also providing thr same services to the client so it's highly likely the agent isn't losing rh contract. He will know better though.

From what I understand the consultancy is looking to replace him. The client has evidence of this, so I think the case would be weak. I presume that due to this there is no offer for an extension.

[northernladuk]

If the current agency is not offering an extension or a cut then they have a very weak case. The handcuff clause is not there to stop fair competition.

This is very true but looking at his terminology he says he's switching when contract lapses. He's also providing thr same services to the client so it's highly likely the agent isn't losing rh contract. He will know better though.

[BlasterBates]

If the current agency is not offering an extension or a cut then they have a very weak case. The handcuff clause is not there to stop fair competition.

[northernladuk]

Another contractor on site with the agency tells them.

[Drei]

Not to ask a very stupid question, but how will they find out?

Are you going to tell them? is the client going to tell them, is anyone going to tell them willingly? Do they have other people working there that could inform them? Will they be visiting the office and could see you?
Most other contractors you work with have absolutely no idea through which agency you are working there, doubt they even care. No one likes their agency, just means to an end. Seriously, what are they going to do, get a rep in the office or outside the office and ID you? You gonna update your LinkedIn and say where you are for tulips and giggles?

I never saw any of the above, if by chance their account manager pops in, they won't even know you worked through them, nor will they step inside the working area, most likely a meeting room somewhere or Starbucks down the road.

Won't they need a court order or such to request that kind of personal information? Besides, as you pointed it out, the Client would just give them tier 1 info, as in the Consultancy you work through.
If I was to play devil's advocate, I would ask, so how do you know X person that you engaged via Y Ltd is now working for one of your clients? We saw them there. How do you know they were working there and not visiting since they worked there? We think that he must be.... OK, you find the definite proof that they are working there and come back to me.

If this stuff was enforced, no one would work anywhere ever. Especially in a specific industry, ie Public Sector)) If you worked for 1 NHS trust, you wouldn't be able to work for any other trust since there could be a link. Communication and Information in the UK is amazing, the Left Hand hardly ever knows what the Right Hand is doing.

[WordIsBond]

Then you need to get the end client to do the talking to make sure their multiple consultancies don't get the hump. They have the contractual relationship with the consultancies and should be managing your transition to another one.

This, mostly. The end client is the one who has the power to make this happen, if they want it, ask them to make it happen.

Perhaps I missed it, but is "Client" in the contract clause you cited defined as the end client or the consultancy you are currently with?

[ladymuck]

Yeah, so end client wants me to keep me long term. Old consultancy is trying to replace me with cheaper staff, annoying the end client.

Obviously the safest would be take a 6 month break, join new one. But it's a long gap.

Then you need to get the end client to do the talking to make sure their multiple consultancies don't get the hump. They have the contractual relationship with the consultancies and should be managing your transition to another one.

[cyborg1337]

If that's the case you are about to be the piggy in the middle of an all out turf war - which won't work out for you unless it's the end client insisting you move consultancy and thus agency.

Yeah, so end client wants me to keep me long term. Old consultancy is trying to replace me with cheaper staff, annoying the end client.

Obviously the safest would be take a 6 month break, join new one. But it's a long gap.

[eek]

Almost there! There are multiple consultancies that provide the same services to the client! Anyway, my plan is to jump to one to one of them AFTER my contract ends.

If that's the case you are about to be the piggy in the middle of an all out turf war - which won't work out for you unless it's the end client insisting you move consultancy and thus agency.

[cyborg1337]

The out of context snippet was not clear as to which entity fulfils which role in the chain.

So the client in the contract is not the client in the chain. Ok, so the client is the third party and has no idea who you are as you're just a body dropped in by any old consultancy (who is the client in the contract).

The consultancy that did have the work to deliver project X is no longer delivering that work and the End Client (who you call a third party) has awarded that work to a new consultancy and, despite it being a packaged service they bought, they know who all the staff are and have asked you to move to the new consultancy to continue delivering the product that the old consultancy couldn't deliver?

Almost there! There are multiple consultancies that provide the same services to the end client! Anyway, my plan is to jump to one of them AFTER my contract ends. The old one will still be around.

Because work is always done indirectly for the third party (end client), and the terms are not crystal clear, I'm not sure what situation that puts me in legally. Perhaps I need to get professional advice.