Help - 1st contract - being held to ransom

[Wanderer]

While true, is it not usually the case they have the same clause in their contract with the end client?

Yes. I have never heard of a contractor paying an agency off it has always been the agency doing a deal with the client to release the contractor from their restraint of trade.

Most of this is just bluster though, I'd be inclined to call their bluff on it.

[Boney M]

Hi

I am employed by a recruitment agency and work as a contractor for one of their clients. The client supplies some IT services to a large site. The end customer also has their own IT services which are run independently.

My current contract ends 1st November. I have applied for a permanent post direct with the end customer.

My recruitment agency is saying I cannot work for the end customer for 6 months after leaving them. But their contract is between them and the client not the end customer.

The recruitment agency sent out this email:
"""""
Following recent meetings it has been brought to my attention that some contractors are being approached directly to apply for roles on the same site. Whilst any application or interview is not a breach of any agreed contract there are breeches that could be seen as a result of excepting any offer made and I must politely remind you of the restrictive covenants that is in your agreed contract currently.

“RESTRICTION

The Intermediary shall not (and shall procure that the Agency Worker shall not) for a period of 6 months following the termination of the Assignment supply the services of the Agency Worker directly, or through any other person, firm or Employment Business, to any Hirer for which s/he has carried out Assignments at any time during the previous 6 months “

"""""

So currently I am employed by A that supplies services to B. B provides support to C. I have not been approached by anyone - I am searching myself. I have not been 'Hired' by C.

They also stated:
"""""

Any breech of an agreed contract will result in immediate remedial action and may affect your security (SC/DV) status.

""""

HELP Please. Can I work for C if I get the permanent post with no worries.

Cheers

Mark

The spelling does not fill me with confidence

[DirtyDog]

“RESTRICTION

The Intermediary shall not (and shall procure that the Agency Worker shall not) for a period of 6 months following the termination of the Assignment supply the services of the Agency Worker directly, or through any other person, firm or Employment Business, to any Hirer for which s/he has carried out Assignments at any time during the previous 6 months “

How does the contract define "Intermediary", "Agency Worker" and "Hirer". If Hirer can be extended to include clients of the client, then you would be caught by the clause (assuming that it is a valid contract clause). If Hirer is limited to the client, rather than the client of the client, then you wouldn't be caught by the clause (so don't need to determine whether it's valid or not).

Any breech of an agreed contract will result in immediate remedial action and may affect your security (SC/DV) status.

That's rubbish for two reasons.

Firstly, it won;t have any impact on your SC/DV status, although you may find that your clearance needs to be ported from your current employer to the new one.

Secondly, and more importantly, it's "breach", not "breech"

[northernladuk]

That's not the case for this scenario, if I've read it correctly. Contractor is employed by agency who contracts with client who contracts with end customer. If contractor wants to work for end customer then the contract restriction mentioned doesn't cover that. Even if it were worded to cover that, I can see most courts throwing it out as an unreasonable restraint of trade.

The "employed" bit has me confused though...

I think it is just a mistake by the OP who doesn't understand his business properly. He does say he works as a contractor in the line.

I think you are correct in saying it is unreasonable. If the agent does not, and cannot represent people in to the part of the business this new job is in then there is no loss of trade. If there is no loss then the handcuff won't stand up. I would, however, go back to my other point that the agent can stir it up to the point no one in the chain will touch him as they don't want a legal battle over him.

[northernladuk]

It's funny they are mentioning the handcuff in your contract. I would have thought there would be a poaching clause in the contracts further up the chain. I seem to remember when I was working for an IT provider there were clauses in the agreement between the client and the supplier not to poach staff either way. The only way to do it was to TUPE the staff from the customer in to the supplier with no chance to go the other way because of this poaching/handcuff clause.

Problem is whatever it says in your contract they could start slinging the muck until it became too much of a liability for the end client to even consider you. They don't want to get in to a legal fight and just pass you over.

[craig1]

While true, is it not usually the case they have the same clause in their contract with the end client?

That's not the case for this scenario, if I've read it correctly. Contractor is employed by agency who contracts with client who contracts with end customer. If contractor wants to work for end customer then the contract restriction mentioned doesn't cover that. Even if it were worded to cover that, I can see most courts throwing it out as an unreasonable restraint of trade.

The "employed" bit has me confused though...

[jmo21]

How are you employed. Via your own Ltd or via a Umbrella?

If your closing your Ltd down when you go Perm I'm not sure who they would sue and I'd be astonished if it went that far. It would be a lot of work for a few grand.

While true, is it not usually the case they have the same clause in their contract with the end client?

[Sockpuppet]

How are you employed. Via your own Ltd or via a Umbrella?

If your closing your Ltd down when you go Perm I'm not sure who they would sue and I'd be astonished if it went that far. It would be a lot of work for a few grand.

[Wanderer]

HELP Please. Can I work for C if I get the permanent post with no worries.

This is their opening shot which means they are after a payoff to allow you to go and work for this other company. I would wait and see if you get the job offer and see if your new employer will deal with the agency for you because they will have a lot more clout than you will and their lawyers won't take any nonsense from the agency either.

As Claire says, it depends if you signed the opt out or not. If you didn't sign the opt out then there is nothing they can do.

Also, if you are a LTD company contractor then you can withdraw all the money from your company and then pay your corporation tax so the agency will get nothing then they try to take legal action against your company.

You should probably get professional advice on this one though....

[Clare@InTouch]

But you may have only heard of C because of the agency, and that's why they want to be paid oft it.

Did you Opt Out of the Employment Regulations? If not, they can only restrict you for 12 weeks.

[Neelix087]

Hi

I am employed by a recruitment agency and work as a contractor for one of their clients. The client supplies some IT services to a large site. The end customer also has their own IT services which are run independently.

My current contract ends 1st November. I have applied for a permanent post direct with the end customer.

My recruitment agency is saying I cannot work for the end customer for 6 months after leaving them. But their contract is between them and the client not the end customer.

The recruitment agency sent out this email:
"""""
Following recent meetings it has been brought to my attention that some contractors are being approached directly to apply for roles on the same site. Whilst any application or interview is not a breach of any agreed contract there are breeches that could be seen as a result of excepting any offer made and I must politely remind you of the restrictive covenants that is in your agreed contract currently.

“RESTRICTION

The Intermediary shall not (and shall procure that the Agency Worker shall not) for a period of 6 months following the termination of the Assignment supply the services of the Agency Worker directly, or through any other person, firm or Employment Business, to any Hirer for which s/he has carried out Assignments at any time during the previous 6 months “

"""""

So currently I am employed by A that supplies services to B. B provides support to C. I have not been approached by anyone - I am searching myself. I have not been 'Hired' by C.

They also stated:
"""""

Any breech of an agreed contract will result in immediate remedial action and may affect your security (SC/DV) status.

""""

HELP Please. Can I work for C if I get the permanent post with no worries.

Cheers

Mark