Reply to: Client not paying

[Safe Collections]

It sounds like a nasty situation. The scumbag agency has taken no risk at all and they want you to bear the brunt of this.

Agreed, the agent has made an extremely poor credit decision.

Given the status of the opt-out it may well be worth checking with a solicitor that has experience in commercial litigation, preferably one familiar with contracting.

But you will need to credit check the agent, if it is a tin pot start up with no history or assets you will need to think carefully before spending money on legal action. It's entirely possible to run up huge legal bills only for the agency to go under at the last minute.

[psychocandy]

Then it may not be valid. You'll have to go to court to prove it though, and you may lose. It all depends on how you define "introduction", which has never been established.

PM Sent...

As malvy says, grey area and no-one knows for sure. Agency will define introduction to suit them.

[psychocandy]

It sounds like a nasty situation. The scumbag agency has taken no risk at all and they want you to bear the brunt of this.



Did you sign the opt out BEFORE you were introduced to the client?

If not, I would try it on with the agency by claiming that the opt out wasn't valid and therefore their clause saying they don't have to pay if the client doesn't pay should be struck out.

Wanderer has a point here. I'd be checking that.

Looks agency were trying to throw all the risk onto you here. And so far its worked.
You're the one who's going to be out of pocket not them.

Sounds like maybe the client had this planned though and knows the system.

But remember your contract is with agent not the client. If it was me I'd be concentrating on what I could get from the agent and let them worry about the money from the client.

[Wanderer]

I signed the opt out after a second telephone conversation and several emails/texts with the client.

As malvolio and others say, the opt out might not be valid. See the Agency Conduct Regulations section 32(9) which says the opt out is only valid provided that such notice is given before the introduction or supply of the work-seeker ... to the hirer.

It's been discussed quite a bit here and the consensus is that it's a grey area because the law is ambiguous.

Our view is this:

Skilled contractors would typically be "introduced" to the client to be interviewed for suitability and the opt out would have to happen before this introduction.

Office temps, cleaners, kitchen porters, security guards etc are different in that they are "supplied" to the client by the agency without being "introduced" or interviewed first and in this case the opt out would have to be done before the supply.

Our argument is that the opt out must happen before the introduction or supply, which ever comes first.

Agencies will argue that the wording is that the opt out can be done any time before the supply of the worker even if they have been introduced. If this was true then the point of introduction would be irrelevant so why would the law even talk about opting out before the introduction?

It would be very interesting to see someone challenge the agency's view on this point. Ask your legal advisers if they are willing to argue the opt out is invalid.

I'd give it a shot - most likely the agency wouldn't let it get to court, there are too many implications for them losing a case, even if it doesn't set a precedent. I reckon they would come up with a settlement at very least but hold out for the full amount because there is an important point of principle at stake here...

[malvolio]

Oh dear (for the agency). You're not actually legally opted out as you need to be opted out prior to being introduced (and from memory even then you can opt back in prior to starting)

Its not that black and white. You can interpret "introduced to the client" various ways, as I keep saying.

[eek]

Hi,

I signed the opt out after a second telephone conversation and several emails/texts with the client.

Oh dear (for the agency). You're not actually legally opted out as you need to be opted out prior to being introduced (and from memory even then you can opt back in prior to starting)

[malvolio]

Hi,

I signed the opt out after a second telephone conversation and several emails/texts with the client.

Then it may not be valid. You'll have to go to court to prove it though, and you may lose. It all depends on how you define "introduction", which has never been established.

PM Sent...

[barabis]

It sounds like a nasty situation. The scumbag agency has taken no risk at all and they want you to bear the brunt of this.



Did you sign the opt out BEFORE you were introduced to the client?

If not, I would try it on with the agency by claiming that the opt out wasn't valid and therefore their clause saying they don't have to pay if the client doesn't pay should be struck out.

Hi,

I signed the opt out after a second telephone conversation and several emails/texts with the client.

[Zippy]

How would you know if the agent got his money...

I guess you'd have to sue to find out (and see what their defence was)? Nasty, messy etc (but inexpensive).

[JoJoGabor]

THis i s an interesting scenario that I haven't considered before. What options do you actually have to recover the money if you are opted out? You can't take legal action against the client as you dont have a contract with them, and the agency are meeting their contractual terms.

If you are legally opted out, is there ways to avoid this scenario? The only action I can suggest is to not turn up on site until you are paid your monies, but it sounds like the work is now complete.

[northernladuk]

I'd also be seeking written confirmation from the agency that they have received no monies for all your work. If they have received even a weeks worth you'll be entitled to your cut..

That is a good point. How would you know if the agent got his money... I would hope as devious as they are I would hope they wouldn't stoop to lying about getting paid.

[Zippy]

It sounds like a nasty situation.
Did you sign the opt out BEFORE you were introduced to the client?

If not, I would try it on with the agency by claiming that the opt out wasn't valid and therefore their clause saying they don't have to pay if the client doesn't pay should be struck out.

I agree with Wanderer. The opt-out question is very important.

I'd also be seeking written confirmation from the agency that they have received no monies for all your work. If they have received even a weeks worth you'll be entitled to your cut.

Hope it works out for you.

[Wanderer]

It sounds like a nasty situation. The scumbag agency has taken no risk at all and they want you to bear the brunt of this.

• I did sign the opt-out form
• My contract does state the agency will only pay if the client does

Did you sign the opt out BEFORE you were introduced to the client?

If not, I would try it on with the agency by claiming that the opt out wasn't valid and therefore their clause saying they don't have to pay if the client doesn't pay should be struck out.

[barabis]

Thanks for all the responses guys, it's the first time something like this has happened to me so I really appreciate getting other views.

The client has actually returned the signed timesheets since I posted, obviously that on it's own means bog all but here's hoping.

[SimonMac]

It seems your anger is with the Client but directed at the agent, I can't believe I am going to say this, but they are in the same boat as you, as they would have lost money too, so you want to be working with them to recover any funds from the end Client than working against