Reply to: Breach of Contract

[Ardesco]

If they are taking your company to court it shouldn't really affect your personal finances (that is why we run through Limited Liability Companies).

It sounds like they are trying to hold you personally responsible, rather than your company. You may want to check the wording on your contract and see if they can do this, they should not be able to.

Overall it sounds like a bit of a sham.

[fzbucks]

If they want under £5000 it will go to small claims court. I don't think you can claim much back when going to small claims court.

on their letter they said they were taking it to county court and a resulting CCJ would result in me finding it difficult to obtain a mortgage and credit in the future.

It was those words which made me believe the whole letter was to just scare me into opening my wallet for them.

[Ardesco]

If they want under £5000 it will go to small claims court. I don't think you can claim much back when going to small claims court.

[fzbucks]

In all cases get professional legal advice as I am not a lawyer. However IMHO a 5 year old could win this case as it is open and shut. The regulations are very clear and the agency can stick its fingers in its ears and scream "I'M NOT LISTENING" as much as they like, but in a court of law they will still loose.

and presumably if it went to court and they lost they would have to pay my legal fees and costs?

I am going to get legal advice in the event of it going any further - as it stands I have not received anything from them in the last couple of weeks so am just expecting court papers or whatever arrives in the post in the event of it going to court.

[Ardesco]

I'd seen that nugget of information on here before, probably posted by your goodself, and was going to save it for if they actually took me to court - quite fancy it actually - obviously only if I win though

In all cases get professional legal advice as I am not a lawyer. However IMHO a 5 year old could win this case as it is open and shut. The regulations are very clear and the agency can stick its fingers in its ears and scream "I'M NOT LISTENING" as much as they like, but in a court of law they will still loose.

[fzbucks]

A bit of FUD knocking about here.

You do not have to opt in, you are automatically opted in unless you specifically sign something opting out before you meet the client. Because you had an interview before you signed the opt out clause it is worthless and will not stand up in court. Legally you were unable to opt out no matter how much you wanted to.

The regulations are very clear they do not say "introduced, or started", they say "either introduced or started". The either is the key and means that if you have had an interview you cannot legally opt out no matter what you sign.

You are opted in and as a result the agency cannot enforce a handcuff clause and they will loose if this goes to court.

I would suggest talking to the PCG legal helpline and drafting a letter highlighting the relevant section of the regulations, and telling them to bring it on if they want to waste thier time and money in court and open themselves up to counter sue.

[/LEFT]

I'd seen that nugget of information on here before, probably posted by your goodself, and was going to save it for if they actually took me to court - quite fancy it actually - obviously only if I win though

[TheFaQQer]

What apout 1p coins?

Yes, there is a limit on 1p coins.

1p and 2p are legal only up to 20p
5p and 10p are legal only up to £5
20p and 50p are legal only up to £10
£1 and above have no legal limit.

Strictly speaking, anyone can refuse to accept more than 20p in 1 or 2p coins.

[someone has my name]

There's no limit on £1 or £2 coins.

What apout 1p coins?

[Ardesco]

A bit of FUD knocking about here.

You do not have to opt in, you are automatically opted in unless you specifically sign something opting out before you meet the client. Because you had an interview before you signed the opt out clause it is worthless and will not stand up in court. Legally you were unable to opt out no matter how much you wanted to.

The regulations are very clear they do not say "introduced, or started", they say "either introduced or started". The either is the key and means that if you have had an interview you cannot legally opt out no matter what you sign.

You are opted in and as a result the agency cannot enforce a handcuff clause and they will loose if this goes to court.

I would suggest talking to the PCG legal helpline and drafting a letter highlighting the relevant section of the regulations, and telling them to bring it on if they want to waste thier time and money in court and open themselves up to counter sue.

Regulation 32(9) provides that limited companies and those persons whose services they supply can choose not to be covered by the provisions of these Regulations. If they do exercise the choice not to be covered by the Regulations, then both the limited company and the worker to be supplied must give notice, to the employment agency or employment business that this is the case, before they are either introduced or supplied to a hirer.

[fzbucks]

I sent them a letter back asking if they could detail how myco or it's personell's actions have resulted in them losing any money

they replied within a couple of days saying that if I had not gone with the other agency to the end client then they would still be making that money off me
they calculated the 2.8k on two months worth of margin

I have left it at that at the moment and haven'y heard anything from them - I just wanted their justification in writing - I'm glad they sent it as they have it wrong, there is no way they would be making money still as my contract with the client ended
then the outsourcing company that places staff at the client site in a joint service placed me there on a different contract - different working hours and different role - the outsourcing company do not use the old agency so they couldn't get in on that.

So in any case I could not have sytayed by choice with the oringinal contract - it ended - the contract is with a different client who placed me there and have no dealing with tinpotagency.

The next thing I expect to hear from them is court papers but in a way I'm looking forward to it - we might also then have a clear indication of how being introduced to the client before opting out stands as I was intervied before opting out.

I will post back on here with the developments.

[richy]

update?

So how did it all pan out?

Did they give up when they realised you weren't a walk-over?
cheers. rich

[TheFaQQer]

Thanks for pointing that out Mal, I will definately join them - was planning on doing then this all kicked off and I thought like other insurance companies they wouldn't offer any help on existing issues.

They aren't an insurance company though! Much better...

[fzbucks]

Of course they would help, what else are they there for? Also, with all due respect to the guys on here, the informed expertise on their fora is about as good as it gets.

The only thing that isn't covered is a pre-existing IR35 investigation, which makes sense when you think about it.

Thanks for pointing that out Mal, I will definately join them - was planning on doing then this all kicked off and I thought like other insurance companies they wouldn't offer any help on existing issues.

[ASB]

I'm not a member - thought about joining but did not think they would assist me with this as it is already an existing issue - or do they not work like that?

Another possible avenue is any household insurance you have. Quite a number of household policies also have free legal helpline. Might be worth checking out.

[malvolio]

I'm not a member - thought about joining but did not think they would assist me with this as it is already an existing issue - or do they not work like that?

Of course they would help, what else are they there for? Also, with all due respect to the guys on here, the informed expertise on their fora is about as good as it gets.

The only thing that isn't covered is a pre-existing IR35 investigation, which makes sense when you think about it.