End user engagement, restrictive clause on contract...

[Andy Hallett]

Noted.

My advice to the OP would be to have his client hammer out a deal with the agency. I suspect they’d get a good deal right now.

[iguy2008]

I'm not assuming anything. I'm telling you and the op what the solicitor I engaged to look into this said.

It's a petty that with all your experience that you cannot offer some useful advice to the op rather than provding curt and accurate statements.

I no longer work for an agency. I know from 20 years experience of enforcing this when I did......

PS Your assumption should be that most agencies would go after the client (they have money) not the contractor.

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[Andy Hallett]

I can understand why an agent would not want it be true, but it's likely s that if an extension was 3 month and the handcuff clause was 12 months then a court may consider this an unreasonable restriction amounting to restraint of trade.
I know this from having to go down the legal route with an agency due to this.

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I no longer work for an agency. I know from 20 years experience of enforcing this when I did......

PS Your assumption should be that most agencies would go after the client (they have money) not the contractor.

[iguy2008]

I can understand why an agent would not want it be true, but it's likely s that if an extension was 3 month and the handcuff clause was 12 months then a court may consider this an unreasonable restriction amounting to restraint of trade.
I know this from having to go down the legal route with an agency due to this.

This is just not true.....

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[LondonManc]

Basically, my end user is desperate to keep me on. Won't go into the politics of it.

However, on my contract with the recruiter it naturally has a clause that states there's a 12 month cool off period after the contract ends and when I could be employed or work in any capacity with the end user. It's pretty clear cut. But what if I if I were to setup a new Ltd? What if one of the end users contractors took me on and I invoiced them?

Flouting the law I know, but how's the recruiter even meant to know anything should stuff go under the radar.

Ah, the key bit here isn't necessarily the cooling off period.

A VERY key question for you:
Can the agency provide a service that enables you to carry on being engaged in the way that you would be if you returned to client as intended?

Scenario - client bins off all contractors and refuses to engage with "PSCs" via agencies. They do, however, want to take you on direct as a supplier. The agency is unable to provide a service any more for you to that client and therefore cannot demonstrate a loss.

You will have to be more open about your circumstances, i.e. you do have to go into the politics of it, to help us advise you properly.

[Paralytic]

If the client is that desperate to keep you on, get them to speak to the agency and work out a deal that removes you from the restrictive covenant. Get that in writing, then join the client.

If they won't do that, then they're not that keen and are expecting you to take all the risk, when its them that's making the savings. Or are they now going to increase your rate/salary by the current agency margin?

[jayn200]

You said you didn't want to get into the politics of it but they do matter.
I will tell you this. As a business owner sometimes you need to consciously choose to do something in violation of your contract and assume the risk that goes along with that. The important thing here is doing an analysis and finding out what other options you have. If you do this how likely are you to get caught and how much will that cost you and is it worth it?
No one here will tell you it's okay to violate your contract. You need to make that decision yourself. Just don't do it without understanding the full risk and making sure you are okay with the likely result and have factored in any consequences into your decision.

[northernladuk]

Absolutely. We've never suggested that at all.

This is just not true.....

[Andy Hallett]

The restrictive clause should not be longer than the duration of the extension, so 12 month extension = 12 month clause, if the extension is less than 12 months, I would ask them to reduce the handcuff to the same amount. There are a few threads on here about it.

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This is just not true.....

[ladymuck]

So I presume the politics involves the client not wanting to use the agency?

If they want you that badly, and are not cancelling the overarching contract with the agency, then they need to tell the agency what they want to do and pay up.

[iguy2008]

Basically, my end user is desperate to keep me on. Won't go into the politics of it.

However, on my contract with the recruiter it naturally has a clause that states there's a 12 month cool off period after the contract ends and when I could be employed or work in any capacity with the end user. It's pretty clear cut. But what if I if I were to setup a new Ltd? What if one of the end users contractors took me on and I invoiced them?

Flouting the law I know, but how's the recruiter even meant to know anything should stuff go under the radar.

The restrictive clause should not be longer than the duration of the extension, so 12 month extension = 12 month clause, if the extension is less than 12 months, I would ask them to reduce the handcuff to the same amount. There are a few threads on here about it.

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[northernladuk]

Nope. They can easily argue it is on the work provider, which is you. There is a term called piercing the corporate veil where they can dig beyond the sham of the company to look at the set up behind which is you again.

Pretty difficult to hide. The client isn't going to lie on your behalf and someone will likely let slip. Hoping the agent won't find out is pretty weak as you will have given him the evidence and losses he needs for a claim.

[ApeShape]

Basically, my end user is desperate to keep me on. Won't go into the politics of it.

However, on my contract with the recruiter it naturally has a clause that states there's a 12 month cool off period after the contract ends and when I could be employed or work in any capacity with the end user. It's pretty clear cut. But what if I if I were to setup a new Ltd? What if one of the end users contractors took me on and I invoiced them?

Flouting the law I know, but how's the recruiter even meant to know anything should stuff go under the radar.