Issue with a non-paying agent.

[SueEllen]

FWIW I opted out and I've always felt that agents would consider me somewhat differently as a candidate if I didn't, and in the current climate I have felt that it might not be too smart to make too many waves for the agent.

I don't opt-out now and refuse to do so particularly as 95% of agency opt-outs are done in an invalid way.

I've not been screwed when I did opt-out properly but it's not to my advantage to as your case illustrates.

I was totally aware of the clause when I signed the contract, but couldn't see any issues because the sheer scale of the client and the nature of their business. In fact, I'm pretty sure they've been paid even though the client is known to be a bad payer.

Some large companies don't pay their small suppliers ever.

I know many people who run different small businesses and work in medium and large enterprises who have dealt and do deal with different large and multi-national companies including UK government agencies and the NHS. They all have tales of how these large companies who are well known refuse to pay, or take nearly a year to pay up in the case of the government and NHS.

I've also worked for 2 companies as a permie who had large clients just take stuff and refuse to pay.

I've worked for 2 companies direct as a contractor including one very well known company, and had issues getting payment out of them. With a middle man in-between if I had legally opted-out they would have been impossible to deal with.

I'm currently seeking an assurance from the client directly who have in the past provided me with this kind of information but if it turns out that the agent has not been paid is there a route via which I can chase the client to ensure the agent has been paid?

It means I'm doing the agents job but what if the agent is just too lazy to chase payment themselves? This is why I question the legallity of the clause - surely it can't be right that someone can withhold payment on the basis that they're just too bone-idle or scared to chase their client? Surely the line has to be drawn somewhere.

The agent needs to chase the debt as they have the contract with the client.

You need to chase your debt with the agent as that's who your contract is with. The agent will need to prove (if it gets that far) that they haven't been paid.


You need to cause them hassle to pay you.

I suggest you work out if you are truly opted-out to save yourself money and give yourself more clout. So work out if you opted-out before the client got your CV with your name on it and before you had any sort of interview with them.

If you aren't properly opted-out then take the first part of the action you were advised to do by Wanderer, and in addition report them to the Department of Business Employment Agency Inspectorate (EAI) for breaching the agency regulations. This is due to their pretence in stating you were opted-out and the fact they are now refusing to pay you due to their contract clause. They can raid the agency premises plus take direct legal action against the agency directors which includes fining them, banning them from being directors and banning them from running or being involved in a employment agencies/businesses. However most agencies pay up when they get involved.

If you were opt-out properly then you are going to have to follow all the advise given by Wanderer. As if you take the agency to court they are going to have to prove that they haven't got paid to a judge. Though you have to be willing to stick with it and cause them more grief than they will try and cause as it's likely they will do things like move the hearing place then not turn up then try and get a default judgement set aside. So you need to know about getting the bailiffs in, winding up orders and be willing to report them to the EAI.

[Old Greg]

FWIW I opted out and I've always felt that agents would consider me somewhat differently as a candidate if I didn't, and in the current climate I have felt that it might not be too smart to make too many waves for the agent.

I was totally aware of the clause when I signed the contract, but couldn't see any issues because the sheer scale of the client and the nature of their business. In fact, I'm pretty sure they've been paid even though the client is known to be a bad payer.

I'm currently seeking an assurance from the client directly who have in the past provided me with this kind of information but if it turns out that the agent has not been paid is there a route via which I can chase the client to ensure the agent has been paid?

It means I'm doing the agents job but what if the agent is just too lazy to chase payment themselves? This is why I question the legallity of the clause - surely it can't be right that someone can withhold payment on the basis that they're just too bone-idle or scared to chase their client? Surely the line has to be drawn somewhere.

Wintelftw

When did you opt out?

Before your CV went to the client?
Before you met the client at interview?
Before you started?
After you started?

Apparently it makes a difference but I ain't no expert.

[Wintelftw]

Why are you still turning up if you're not getting paid?

I'm not !

I moved on 3 months ago but I still have invoices outstanding from this agent.

[v8gaz]

Why are you still turning up if you're not getting paid?

[Wintelftw]

Agreed - it also depends on what you are paying the review for. An IR35 review won't pick that up, whereas a full contract review might.

FWIW I opted out and I've always felt that agents would consider me somewhat differently as a candidate if I didn't, and in the current climate I have felt that it might not be too smart to make too many waves for the agent.

I was totally aware of the clause when I signed the contract, but couldn't see any issues because the sheer scale of the client and the nature of their business. In fact, I'm pretty sure they've been paid even though the client is known to be a bad payer.

I'm currently seeking an assurance from the client directly who have in the past provided me with this kind of information but if it turns out that the agent has not been paid is there a route via which I can chase the client to ensure the agent has been paid?

It means I'm doing the agents job but what if the agent is just too lazy to chase payment themselves? This is why I question the legallity of the clause - surely it can't be right that someone can withhold payment on the basis that they're just too bone-idle or scared to chase their client? Surely the line has to be drawn somewhere.

Wintelftw

[TheFaQQer]

Clauses like that are for people who don't read their contracts.

Even if you get your contract reviewed by someone they will not neccessarily point a clause like that out to you as it's in plain English.

Agreed - it also depends on what you are paying the review for. An IR35 review won't pick that up, whereas a full contract review might.

[SueEllen]

. I can understand why they operate that way, but I can't see why anyone would go with an agency that does nothing for their money once they have found you.

Clauses like that are for people who don't read their contracts.

Even if you get your contract reviewed by someone they will not neccessarily point a clause like that out to you as it's in plain English.

[TheFaQQer]

Therefore, All umbrellas are nasty?

Sorry, I'll rephrase.

An umbrella will not pay without receiving funds from the agency. I can understand why they operate that way, but I can't see why anyone would go with an agency that does nothing for their money once they have found you.

[prozak]

That's a nasty trick.

It's standard practice if going via an umbrella.

Therefore, All umbrellas are nasty?

[TheFaQQer]

That's a nasty trick.

It's standard practice if going via an umbrella.

[TheFaQQer]

“The contractor shall invoice the agent, which shall be paid once the agent has received payment from the client.”

so what value does the agency provide here? I trust you won't be making the same mistake again.

had to wait to invoice at the end of the billing period (30 days) and then wait for the agent to bill the client and wait a further 30 days for the invoice to be paid – which doesn’t sound too horrible

Sounds like an absolute nightmare - no way would I consider giving anyone 60+ days credit as a routine matter

The aforementioned agent still has outstanding invoices to pay which are now due almost 120 days and I’m rather tired of chasing them.

120 days after you invoiced, or 120 days after they received payment from the client? From the earlier clause, they don't become due until the client has paid them.

Does that clause that I’ve listed above actually affect my legal right to be paid for services that I’ve provided?

No.

Can they legally do this and does it stack up in law? Yes I’ve signed the contract but on the basis of what I’ve described, can this be considered to be legally binding?

Yes, and yes.

Have I really just waived away my right to be paid for work I’ve done?

No - you have the right to be paid when the agency gets paid.

Is that even possible?

Yes, you could waive the right to be paid. Plenty of companies do it to deal with bad debt.

What I want to do is just register a small claim against them, but I don’t want to do that if it transpires I’ve effectively waived that right in signing this contract.

Without proving that the agency has been paid, then there isn't much you can do. If you can prove that the agency has been paid, then there are legal avenues that can be pursued. But since no money is due to you until they have been paid, then there's no point in a court case yet.

Have a look at www.payontime.co.uk for advice as well.

[Wanderer]

“The contractor shall invoice the agent, which shall be paid once the agent has received payment from the client.”

That's a nasty trick. Who was the agency?

Did you opt out of the agency regulations? Read this sticky and understand that you should NEVER opt out.

Do a search here for "dunning" and there is lots of advice but really it boils down to this:

Send them a copy of the unpaid invoice with a covering letter saying it's well over due, plus an invoice for Interest and penalties. Send it "Signed for" and address it to the director of the agency.

Make it clear to them that they have 7 days to pay up or face court action to recover the debt and that no further delays will be tolerated. Be polite but firm, don't get into a load of details just tell them you want the money. Now.

If they don't pay, send them a final warning headed "notice before action" then start action in the small claims court.

[pmeswani]

Hi All,

Last summer I started a new contract with an agent, via which I was providing IT engineering services to their client. The engagement model was the usual arrangement although I was aware of a clause in the contract which I had not seen in previous engagements. This isn’t exactly what was written, I can go and verify this for all, but this is basically the length of it :-

“The contractor shall invoice the agent, which shall be paid once the agent has received payment from the client.”

Now, for anyone working through a factored agent then this might not raise any eyebrows, however it transpires that this particular agent is not factored at all and so a number of contractors were engaged at the same time, all of which had to wait to invoice at the end of the billing period (30 days) and then wait for the agent to bill the client and wait a further 30 days for the invoice to be paid – which doesn’t sound too horrible until you discover that the client, despite being a multi-billion-dollar turnover organisation, turns out to be one of the worst payers out there.

I’m not engaged with this agent any more and I’m enjoying working for a more reputable agent that is 100% factored and pays my invoices weekly, on the dot.

The question is this. The aforementioned agent still has outstanding invoices to pay which are now due almost 120 days and I’m rather tired of chasing them. Does that clause that I’ve listed above actually affect my legal right to be paid for services that I’ve provided? Can they legally do this and does it stack up in law? Yes I’ve signed the contract but on the basis of what I’ve described, can this be considered to be legally binding? Have I really just waived away my right to be paid for work I’ve done? Is that even possible?

What I want to do is just register a small claim against them, but I don’t want to do that if it transpires I’ve effectively waived that right in signing this contract.

Thanks,
Wintelftw

This has been covered a few times, I believe. However, unless you can prove the agent has been paid, I am unsure if you have a leg to stand on. If you are on good terms with ClientCo, you can ask your Hiring Manager to find out if the Agent has been paid. If you can collate evidence to prove they have been paid, then you may have a case against the old agent.

HTH.

[TestMangler]

Have you 'opted out' ?

[Wintelftw]

Hi All,

Last summer I started a new contract with an agent, via which I was providing IT engineering services to their client. The engagement model was the usual arrangement although I was aware of a clause in the contract which I had not seen in previous engagements. This isn’t exactly what was written, I can go and verify this for all, but this is basically the length of it :-

“The contractor shall invoice the agent, which shall be paid once the agent has received payment from the client.”

Now, for anyone working through a factored agent then this might not raise any eyebrows, however it transpires that this particular agent is not factored at all and so a number of contractors were engaged at the same time, all of which had to wait to invoice at the end of the billing period (30 days) and then wait for the agent to bill the client and wait a further 30 days for the invoice to be paid – which doesn’t sound too horrible until you discover that the client, despite being a multi-billion-dollar turnover organisation, turns out to be one of the worst payers out there.

I’m not engaged with this agent any more and I’m enjoying working for a more reputable agent that is 100% factored and pays my invoices weekly, on the dot.

The question is this. The aforementioned agent still has outstanding invoices to pay which are now due almost 120 days and I’m rather tired of chasing them. Does that clause that I’ve listed above actually affect my legal right to be paid for services that I’ve provided? Can they legally do this and does it stack up in law? Yes I’ve signed the contract but on the basis of what I’ve described, can this be considered to be legally binding? Have I really just waived away my right to be paid for work I’ve done? Is that even possible?

What I want to do is just register a small claim against them, but I don’t want to do that if it transpires I’ve effectively waived that right in signing this contract.

Thanks,
Wintelftw