End of contract

[richy]

Advice

I've been in exactly the same situation... unlike you I;ve never got close to escaping the agency.

tips:

0) don't refer to yourself being "employed" by company x unless you are PAYE, i expect you are a ltd company like the rest of us.

1) don't inform the agency what you are doing, they may never find out. Tell them you have got a permie job and hang up.

2) those clauses are unenforceable. Until you get a Letter Before Action or Court Request don't even bother to communicate or negotiate. They'll settle out of court if it did come to that.

and of cause, don't worry, it's not worth getting stressed about when you're already moving jobs!

Cheers, rich.

[TheBigD]

I was in an almost identical situation a couple of months ago. The only difference was that the client where I was based, was happy use my agency. From reading this, and from reading other posts at the time, I knew that I probably didn't need to go through the agency as they're "3rd Party" clauses are often unenforcable, but I got what I wanted out of the agent and so wasn't to bothered if he was making a bit on the side.

A previous colleuge of mine was also in the same situation, and went direct. The agency huffed and puffed, but a couple of soliciters letters brought them to their senses and they dropped any action. Still, he said it was a nervy couple f months for him while it was going on.

[ASB]

BGG,

Get your cojones out. The basic legal premise with any restraint is that it is uneforceable. It is then down to the restrainer to sue. It is then down to a judge to decide in the restraint is reasonable enough to be enforced. Ther judge is not empowered to amend it. So he can't say for example "well 6 months would be OK".

Further dameages are restricted to actual loss. In order for this to be non zero the retrainer must have some sort of protectable interest. It's highly debatable whether there is one given the circumstances.

So, take the contract, risk getting sued and see what happen. Sure they'll probably try and frighten you. At this point tell them to stuff off, or get your lawyer to tell them to stuff off. It's put up or shut up.

By all means take legal advice as to the risk of the clause being enforcable. It will cost you a couple of hundred.

Another issue is that they may have contract with the end client which they might try and enforce. If the end client are making you the offer you can be pretty sure that they have cleared it with thier lawyers.

[Beefy198]

If you run as a business you shouldn't allow your client to insert such an uncompetitive clause that affects your work.

[EchoSierra]

But he isn't a member of staff. He's a contractor who just so happened to be on the client site when they were dealing with each other.

But surely Company X would have a clause with Company Y to prevent poaching in general.

It could be that Company Y hires Company X for a job.
Company X goes out and body-shops a load of contractors onto the team.
Company Y sees this and decides to get rid of Company X and take on the contractors directly and more cheaply.

Company X would seriously consider their contractual options.

It would be different if Company X had 10 staff and 1 contractor and they were "fired". In this case I would think that Company X would be less likely to enforce their contract clauses with Company Y.

[Beefy198]

The concern I would have would be the contract between Company Y and Company X.

I would have thought that Company Y would have ensured that their customers cannot just poach their staff and cut them out of the picture, and if Company X is no longer a customer then there is no incentive for Company Y to stay on amicable terms and not go legal. I don't think that that would have direct implications for you, only indirect ones.

But he isn't a member of staff. He's a contractor who just so happened to be on the client site when they were dealing with each other.

[pleomax]

Also in future dont be so free with information to the agency. Once your contract expires it has sod allt o do with them what you do next!
My 2 p!

[Board Game Geek]

Thank you very much folks from the benefit of your shared experiences. Some excellent observations, thank you.

[deckster]

Also, as the agency cannot place you in Company X (by your own statement), the agency cannot have a hold on you, and therefore the clause would effectively be invalid.

This is the key. These clauses are enforceable only so far as they allow companies to 'protect their legitimate business interests'. There is no existing relationship between the agency and company X, therefore no business interest, therefore they can take a hike.

[pmeswani]

I am employed by the End Client (Company Y), and they have chosen not to renew because Company X, who they hire me out to, has ditched Company Y. Hence, my contract has naturally ended.

Now Company X want to employ me direct.

The agency are hassling Company X to employ me via themselves. However, Company X have never dealt with the agency, don't like them, and prefer to deal direct with their contractors instead of use agencies.

The agency is telling me "you can't work for Company X, because of various clauses, blah blah blah."

Whilst Company Y was the intermediary who hired me, and who employed me via the agency, Company X were not mentioned in the contract T&C apart from coming under the vague catch all of "other 3rd parties".

Am I within my rights to tell the agency, sorry, but company X want me, and they have no contract with you, and your "end user" clause is bollox, since company X have severed with company Y, who ended my contract, making me redundant.

Any suggestions please ?

Thank you muchlies....

contracted
take me on

(sorry for being picky here. )

I have only quoted extracts from the original post.... so apologies for doing that.

As far as I can see, the 3rd party clause is only valid if the 3rd party has an existing relationship with the client you are working for. An I wonder how successful the agency will be in defending their clause. Would it be retrospective?

Effectively, the clause is too restrictive as it could apply to literally any company in the UK (depending on the nature of the work being carried out).

Also, as the agency cannot place you in Company X (by your own statement), the agency cannot have a hold on you, and therefore the clause would effectively be invalid.

[Gonzo]

I personally cannot see any legal issues for you taking the position with Company X with the situation as you have described.

The trickery attempted by the agency suggests to me that they know their position is weak and I don't think they have much of a case. But that is only one part of the story.

The concern I would have would be the contract between Company Y and Company X.

I would have thought that Company Y would have ensured that their customers cannot just poach their staff and cut them out of the picture, and if Company X is no longer a customer then there is no incentive for Company Y to stay on amicable terms and not go legal. I don't think that that would have direct implications for you, only indirect ones.

These are just my thoughts, not the benefits of any expertise.

[TykeMerc]

In my opinion while the Agency are trying all sorts of trickery (the contract to your umbrella was really cute and debatable on the legal front) it's a sign that they know that they really can't do much with your old handcuff clause.
They could take you to court and argue it out, but if Client X don't want to deal with them that would massively weaken their already fragile hand.

Personally I would take a direct contract with Client X, not tell the Agency, tell your Umbrella to ignore them and simply don't take their calls. They have no right to find out where you're working, you can always tell them that you've taken another contract from a seperate agency (which is factually correct) and let them know that you're not on the market.

I very much doubt that the Agency will take you to court as it will cost them time and money with very little chance of them profiting.

[Board Game Geek]

As you may know, I'm not a noobie to the forums and have had a dig around for a hour, looking for something akin to my question, to no avail.

A brief explanation of the existing setup.

My contract has naturally expired with the agency.

This is because the End Client (Company Y) have been "fired" by Company X.

I am employed by the End Client (Company Y), and they have chosen not to renew because Company X, who they hire me out to, has ditched Company Y. Hence, my contract has naturally ended.

Now Company X want to employ me direct.

The agency are hassling Company X to employ me via themselves. However, Company X have never dealt with the agency, don't like them, and prefer to deal direct with their contractors instead of use agencies.

The agency is telling me "you can't work for Company X, because of various clauses, blah blah blah."

Whilst Company Y was the intermediary who hired me, and who employed me via the agency, Company X were not mentioned in the contract T&C apart from coming under the vague catch all of "other 3rd parties".

Whilst I agree, that asking for a job with Company Y would potentially be problematical, Company Y let my contract expire naturally, when they lost their contract with Company X.

Am I within my rights to tell the agency, sorry, but company X want me, and they have no contract with you, and your "end user" clause is bollox, since company X have severed with company Y, who ended my contract, making me redundant.

I sense the agent is desperate to get her foot in the door with the new company X, and also to continue earning a rake from me, when she had no right.

Even more interesting is the fact that the agent has sent a new contract to my umbrella, stating her as the agency, me as the representative, and Company X as the End User, when I have spoken to the Contracts Team at Company X and they said "WTF ? We haven't set anything up with her. How can she name us on a contract without our permission ?"

Any suggestions please ?

Thank you muchlies....