Reply to: 12 Months Restriction Rule (new)

[BolshieBastard]

Also any agency who still uses a 12 month restraint of trade clause in their contract is trying it on.

This.

[SueEllen]

I think it would be more likely for the agency to go after the client.

That depends on how foolish the client is who signs the agency contract.

I've had clients' who have dumped agencies but kept the contractors they want. Plus others who have ensured they can easily get out of their agency contract and keep the contractors they want.

Also any agency who still uses a 12 month restraint of trade clause in their contract is trying it on.

[BlasterBates]

I would think it very likely.

What are restraint of trade clauses and will they ever be legal?

Restraint of trade clauses are usually contractual clauses that go too far in limiting competition on the market. Under the proper functioning of competition law it is the policy of the law to ensure that all traders are free to select with whom they contract.

The general rule regarding restraint of trade clauses is that they are unenforceable at common law. However, a Court may decide to enforce such clauses if they are considered to be reasonable with the reference to the interests of both of the parties and do not breach the public interest in free trade.

In other words in this particular instance the OP should have no qualms in extending with the client, and probably best ignore the agency.

[Batcher]

We endeavor to monitor all our contractors before, during and after assignment - yes.

Creepy !!

[Andy Hallett]

Obviously you mean S3 does.

We endeavor to monitor all our contractors before, during and after assignment - yes.

[Andy Hallett]

It would be up to the agency to prove they have sufferred a loss not, the contractor so any 'test case' would have to be brought by the agency.

Seeing as the client has terminated the agency's ability to proved contract resources by removing them from the PSL, I think any agency would have a hard job convincing any court they had sufferred a loss on the contractor remaining at the client.

I also think it would be piss poor of any agency to persue a contractor in any such circumstances. obviously, Im not a lawyer.

I think it would be more likely for the agency to go after the client.

[BolshieBastard]

I would think it very likely.

Obviously you mean S3 does.

[BolshieBastard]

I would urge the OP to take proper legal advice as the above is simply not correct. Unfortunately (for contractors) the Bosman ruling does not apply.

My personal advice would be to cut a deal with both the agencies to split the commission and continue to supply.

It would be up to the agency to prove they have sufferred a loss not, the contractor so any 'test case' would have to be brought by the agency.

Seeing as the client has terminated the agency's ability to proved contract resources by removing them from the PSL, I think any agency would have a hard job convincing any court they had sufferred a loss on the contractor remaining at the client.

I also think it would be piss poor of any agency to persue a contractor in any such circumstances. obviously, Im not a lawyer.

[Andy Hallett]

I think it would be highly unlikely indeed that an agency thrown off the PSL is going to monitor all the contractors, and start some expensive rather pointless legal action. I've often seen contractors move agencies on renewal, and I've done it myself, though the agent said he wouldn't chase.

What I wouldn't do is jump ship mid contract, that would be a very strong case for the agency.

I don't see this as particularly risky, but no harm in getting a legal opinion.

I would think it very likely.

[BlasterBates]

"But there is, unfortunately, no specific case law involving contractors and restrictive covenants when the clauses are used in ways for which they were not intended"

Not sure if the OP wants to be the one to stump up for the test case?

I think it would be highly unlikely indeed that an agency thrown off the PSL is going to monitor all the contractors, and start some expensive rather pointless legal action. I've often seen contractors move agencies on renewal, and I've done it myself, though the agent said he wouldn't chase.

What I wouldn't do is jump ship mid contract, that would be a very strong case for the agency.

I don't see this as particularly risky, but no harm in getting a legal opinion.

[eek]

"But there is, unfortunately, no specific case law involving contractors and restrictive covenants when the clauses are used in ways for which they were not intended"

Not sure if the OP wants to be the one to stump up for the test case?

Would you be so confident if say IPSE were willing to pay for the rules to become clear cut....

[Andy Hallett]

[QUOTE=BlasterBates;2047943]

I'm basing my opinion on this article, i.e. that agency has to be fair about how he exercises the restrictive clause:

"But there is, unfortunately, no specific case law involving contractors and restrictive covenants when the clauses are used in ways for which they were not intended"

Not sure if the OP wants to be the one to stump up for the test case?

[BlasterBates]

I would urge the OP to take proper legal advice as the above is simply not correct. Unfortunately (for contractors) the Bosman ruling does not apply.

My personal advice would be to cut a deal with both the agencies to split the commission and continue to supply.

I think it's good advice to get a legal opinion.

Effectively though the agent has been taken off the PSL and is no longer offering the OP work.

Judges apparently take a dim view when an agent is wielding a stick to prevent someone from working, i.e. if the OP does not have a reasonable alternative. It would be a different matter if the agent was offering an extension.

But agreed a grey area, and no harm in trying for an agreement. The principle is basically to prevent the contractor doing the "dirty" on the agent, which would not be the case here.

I'm basing my opinion on this article, i.e. that agency has to be fair about how he exercises the restrictive clause:

So if, when contract renewal time comes up, an agency says that you must accept a lower fee to do the same job for the same client, or that you should do two jobs for the same money, just say that you will go work directly for the client if the agency insists. When the recruitment consultant at the agency threatens you with the restrictive covenant, just cite this article and warn that the consultant is out of line.

I like the idea of offering to split the commission for a few months.

[northernladuk]

I would urge the OP to take proper legal advice as the above is simply not correct. Unfortunately (for contractors) the Bosman ruling does not apply.

My personal advice would be to cut a deal with both the agencies to split the commission and continue to supply.

Why is that? The handcuff ceases to be fair and just as there is no longer any loss that can be proven?

[Andy Hallett]

Agree with the above the restriction clause can only be used to protect a legitimate interest. Since the agency won't be offering an extension. Once the contract has expired you'll no longer be bound by the restriction clause.

From a strict legal point you can't arrange any new contract, which breaks the contract i.e. whilst your contract is running, once the contract has expired the conditions of the contract no longer apply, after all it's expired. After expiration you can do whatever you like.

I would just inform the client you will be going with the new agency and perhaps try and sign it after your current contract has expired.

I would urge the OP to take proper legal advice as the above is simply not correct. Unfortunately (for contractors) the Bosman ruling does not apply.

My personal advice would be to cut a deal with both the agencies to split the commission and continue to supply.