Reply to: HELP – Working for a Big Client through another agency and “Restraint of Trade”

[2uk]

I think the best bet would be to find another job somewhere else, unless you can get them to wait until 8 weeks is up.

Yeah I got offered a gig elsewhere. The market is very funny. For a month nobody wants me , and suddenly they are tearing me apart.

I won't dig further into this. But one day it is likely to reoccur.

[TheFaQQer]

But then Agent B will get shirty because they introduced you to the role and will want some money.

It's a dificult situation, and I would not like to be in it.

I would trust the PCG lawyers though

I think the best bet would be to find another job somewhere else, unless you can get them to wait until 8 weeks is up.

[r0bly0ns]

You might be better going to A and saying "There's a job going - can you get me in for it..." and negotiate a better rate / cut in their commission since you are doing most of the work for them.

But then Agent B will get shirty because they introduced you to the role and will want some money.

It's a dificult situation, and I would not like to be in it.

I would trust the PCG lawyers though

[TheFaQQer]

good point.

no harm in trying to shaft an agent !!!

I'm in for a role at the moment - client approached me, but I need to go through an agency. It was nice ringing them and being able to say "why should I pick you over all the others? What can you do for me that they can't?"

[Bluebird]

Unless the restriction means that the company and any representative that they send...

You might be better going to A and saying "There's a job going - can you get me in for it..." and negotiate a better rate / cut in their commission since you are doing most of the work for them.

good point.

no harm in trying to shaft an agent !!!

[TheFaQQer]

If you really want the gig, couldn't you open a new company £70 - £125 approx and go through that?

You would of course need to shut the first one at some point (if you didn't want to be maintaining 2 Ltd co's), so is the rate worth the hassle?

Unless the restriction means that the company and any representative that they send...

You might be better going to A and saying "There's a job going - can you get me in for it..." and negotiate a better rate / cut in their commission since you are doing most of the work for them.

[Bluebird]

If you really want the gig, couldn't you open a new company £70 - £125 approx and go through that?

You would of course need to shut the first one at some point (if you didn't want to be maintaining 2 Ltd co's), so is the rate worth the hassle?

normally the handcuff clause relates to the "named representative" rather than the business entity....

[Ruprect]

If you really want the gig, couldn't you open a new company £70 - £125 approx and go through that?

You would of course need to shut the first one at some point (if you didn't want to be maintaining 2 Ltd co's), so is the rate worth the hassle?

[2uk]

What would be interesting would be the PCG opinion of whether they think you would lose if you were sued - it would put an end to the speculation here about whether people should just say "bring it on" as they won't and those that err on the side of caution because they believe that you would lose.

First of all the PCG opinion is 10 minutes advice. They won't go very deep , looking over contracts , etc. There are many points that were brought up in relation to "Restraint of trade" on the PCG forums.

Since you did not opt out, then you can go back direct or through another agency. There may be something to stop the client taking you through a different agency, though - that's something that they would have to check in their contract with agency A.
.

People (PCG) say , when opted in , you still need 8 weeks after contract end or 14 weeks after contract start - to have a case. In my case it was only 5 weeks after contract end - so I am not risking.

I would also question how reliable agency B are - they have given you advice that the PCG lawyers have said they have never heard of. They have also refused to put their money where their mouth is by providing an indemnity. Only you can answer whether you really want to work through them after this.

I think the agent had spoken to a solicitor and the solicitor had told him whatever the agent needed to hear. Or the agent was telling me what I needed to hear. Different cases will have different outcomes.





One thing to take out of all this is that " restraint of trade" need not to be overlooked. At least for 6 months after contract end.


And it is good to have the PCG for quick advice.

[TheFaQQer]

Hi guys ,

The PCG legal adviser ( seemed like a confident guy ) is saying that He has never heard of what agent B is saying – which is that with BIG clients – you can safely work in separate offices /departments with high degree of confidence that you are safe against “restraint of trade” claims from previous agents.

He also did confirm that not being opted-in renders “restraint of trade” unenforceable. ( probably after 8 weeks after project end)

He also suggested that seeking an indemnity from Agent B is an option. ( In my case Agent B told me that he was not going to do that )

So when opted out , "Restraint of trade" is not solely to scarecrow .

What would be interesting would be the PCG opinion of whether they think you would lose if you were sued - it would put an end to the speculation here about whether people should just say "bring it on" as they won't and those that err on the side of caution because they believe that you would lose.

Since you did not opt out, then you can go back direct or through another agency. There may be something to stop the client taking you through a different agency, though - that's something that they would have to check in their contract with agency A.

I would also question how reliable agency B are - they have given you advice that the PCG lawyers have said they have never heard of. They have also refused to put their money where their mouth is by providing an indemnity. Only you can answer whether you really want to work through them after this.

[2uk]

Hi guys ,

The PCG legal adviser ( seemed like a confident guy ) is saying that He has never heard of what agent B is saying – which is that with BIG clients – you can safely work in separate offices /departments with high degree of confidence that you are safe against “restraint of trade” claims from previous agents.

He also did confirm that being opted-in renders “restraint of trade” unenforceable. ( probably after 8 weeks after project end)

He also suggested that seeking an indemnity from Agent B is an option. ( In my case Agent B told me that he was not going to do that )

So when opted out , "Restraint of trade" is not solely to scarecrow .

[XLMonkey]

Not sure that the case is quite that straightforward, dude. These clauses can be enforced on a company to company basis.

But, I do agree on the first point
(a) They would have to prove they have suffered an actual financial loss

In this case, since the OP wasn't offered the opportunity through agent A, it seems unlikely that the courts would accept that there was any business loss involved.

So, the OP could be in technical breach of contract, but that doesn't mean that there would be any penalty to pay.

[dude69]

Brave advice - this is an open and shut case that they are guaranteed to win. They could easily get £5k just be going to small claims court - and it would inconvenience them a lot less than it would inconvenience the OP, and have no impact on the client.

Easily?

Firstly:

(a) They would have to prove they have suffered an actual financial loss (b) They have to prove the clause has been breached
(c) They have to prove the clause is enforceable

And also they would have to engage a lawyer, which will cost them quite a lot of money, and also take staff off the actual business of making money while managing it, whereas the OP can defend the case himself.

No judge is going to just hand out £5k - you can only claim what you can prove you have lost.

A clause that says that your company cannot deal directly with another company means that you would be left sucking off the money in your company, not the public teat.

Nonsense, you stand up in court, explain how the company is your only source of income, and that they are putting a one-man business out of work. The starting presumption is NOT to enforce these clauses.

There are plenty of precedents of companies having this kind of clause, which have been upheld in the courts. If the courts deem it reasonable, then you can't go direct without breaching your contract.

In which case they have to get an injunction, which is expensive.

Just call their bluff, tell them that you will defend any action vigorously in the courts, and don't worry further until they do anything, which is IMO unlikely.

[TheFaQQer]

Agent B is telling me that he is dealing with cases like that all the time. So he is saying that he had confirmed this with solicitors , etc .

However , I will do what the PCG says.

That's good news - if he's so confident, and has had it confirmed, then he'll have no problem with guaranteeing that they will cover any costs and damages incurred if the other agency sue you.

[TheFaQQer]

take the job and tell them to bring it on. They won't sue you, they have better things to do, plus they don't want to upset their client.

Brave advice - this is an open and shut case that they are guaranteed to win. They could easily get £5k just be going to small claims court - and it would inconvenience them a lot less than it would inconvenience the OP, and have no impact on the client.

Bottom line is restraint of trade clauses are contrary to public policy because they leave you unemployed and potentially sucking off the public teat.

A clause that says that your company cannot deal directly with another company means that you would be left sucking off the money in your company, not the public teat.

There are plenty of precedents of companies having this kind of clause, which have been upheld in the courts. If the courts deem it reasonable, then you can't go direct without breaching your contract.