Reply to: Contract Advice - Contractor to Supplier

[TheFaQQer]

My point this 6 months clause was not in my Contract, though I a told it is in the agreement between the agency and company X. So I was never aware or agreed to such.

If there is nothing in your contract that prevents this, then the agency cannot take any action against you.

If there is something in the contract between client and agency that prevents this, then the agency could take action against the client if they want to breach that contract.

If the client is aware of the contract clause that they agreed to, are you sure that they want to take you on direct?

[billybiro]

And that's where we differ greatly in opinion but indeed that is a valid option.

So you're going to perform the agent's "discovery" process, and provide the resulting evidence to them, by yourself, for free and without even being asked?

Do you also hand yourself in to the nearest police station whenever you catch yourself doing 2mph over the speed limit on an empty road?

[northernladuk]

It's even easier than this.

The first thing to do is not to tell the agent that you're going to work direct with the client.

Second thing to do is make sure the client doesn't tell the agent either.

Problem solved.

And that's where we differ greatly in opinion but indeed that is a valid option.

[billybiro]

First thing I would do would be to ask the agency for evidence as to why they believe this cannot happen. The onus will be on them to prove this exists. If they can't then fill your boots.

It's even easier than this.

The first thing to do is not to tell the agent that you're going to work direct with the client.

Second thing to do is make sure the client doesn't tell the agent either.

Problem solved.

[Cirrus]

I got involved from the client side in a dispute of this kind. The client got lawyers in for a short while then stopped arguing because of the cost.

As I recall, one of the factors was you might be deemed to have accepted overall terms of engagement for the agency concerned even if they are not in any specfic assignment contract. That may or may not apply in this particular case, depending on how everyone first engaged (eg via a web site or a call from an agent etc). You'd have to see what the agency said but as others will attest, they can turn nasty when you try to take juicy bones out of their kennels.

[northernladuk]

Based on your other thread, is this the same company as the one you walked away from?

Aww please please please let this be the case

[northernladuk]

Indeed, can accept that but the idea of an agent sticking in a 'by the way you're also bound by all of the terms in our upper contract with the client even though you have no idea what they are' sounds a tad suspect.

Agreed. An agent supplying a contract with no handcuff even more so.

[SlipTheJab]

There is the other angle that the client cannot take the OP on directly because of the upper contract. It could have no direct impact on the OP, nothing stopping him applying but the client/agent contract could stop the client accepting him.

Indeed, can accept that but the idea of an agent sticking in a 'by the way you're also bound by all of the terms in our upper contract with the client even though you have no idea what they are' sounds a tad suspect.

[WTFH]

Based on your other thread, is this the same company as the one you walked away from?


Have you discussed with the client about working directly with them?

[clearedforlanding]

The EU HATES NCC & CNC clauses. Talk to Lisa to make sure, but call their bluff.

In the UK, agencies can't enforce this tulip [simplified], courts are disinterested as it is EU law - AND if an agency wants to retain my business as a hirer, the opportunity cost is too high to high to argue over one contractor.

[northernladuk]

Can this be the case?. How can you agree to terms you've never been made explicitly aware of?

There is the other angle that the client cannot take the OP on directly because of the upper contract. It could have no direct impact on the OP, nothing stopping him applying but the client/agent contract could stop the client accepting him.

[SlipTheJab]

Welcome Tony

IANAL but if there is no mention of this restriction in your contract then you could not be held liable for a breach by the agency. However, if this is in the upper contract between the agency and the end client the agency could pursue the client for a fee based on the initial contract value - whether they would be prepared to follow this path would depend on the relationship that they had with the client i.e. how much business they did together.

The only other thing to check would be whether there was a clause in your contract which stated that all the terms applied to the upper contract between the agency/client also applied to you

Can this be the case?. How can you agree to terms you've never been made explicitly aware of?

[northernladuk]

A contract from an agent with no handcuff in? I find that very hard to believe and if there isn't it's a major cockup on the agents part. They are pretty good on making sure they don't lose out in any way even though most handcuffs aren't enforceable.

Did you get the contract checked with the likes of QDOS before starting?

First thing I would do would be to ask the agency for evidence as to why they believe this cannot happen. The onus will be on them to prove this exists. If they can't then fill your boots. As I said above agents normally have this covered so they should be able to provide clear guidance if there is some kind of handcuff in place. Don't accept their word, ask them for the evidence.

The thing that jumps out to me here is the fact you 'want to'. Are you sure the client will accept this? Most clients that use an agency don't want to take suppliers on directly. The agency route free's them up from dealing direct. Are you sure the client is going to accept this first or are you just toying with the idea of cutting the agent out? We've all thought about it but very very few of us have managed it. Don't expect to get a higher rate if you do. If the client is paying a premium for the agents services and the agent is no longer in the loop they shouldn't be paying it. All you might save is the difference is the agent has been screwing you hard.

I'd make sure it's even possible to do what you would 'like' to do before getting embroiled in a complex argument with the agent.

Also... legalities aside if the agent kicks up a stink the client may not want to touch you even if the agent can't evidence it. Clients aren't normally in the habit of risking legal issues just for a single contractor whatever the paperwork says.

[SimonMac]

What does/did your contract say? And did you have it reviewed? 6 months is not unreasonable as a period of restriction?

If something was missed in your contract and you are in the clear, any bun fighting between agent and client could go badly for you as you are deemed to much hassle especially if agency is on clients PSL

[LisaContractorUmbrella]

Welcome Tony

IANAL but if there is no mention of this restriction in your contract then you could not be held liable for a breach by the agency. However, if this is in the upper contract between the agency and the end client the agency could pursue the client for a fee based on the initial contract value - whether they would be prepared to follow this path would depend on the relationship that they had with the client i.e. how much business they did together.

The only other thing to check would be whether there was a clause in your contract which stated that all the terms applied to the upper contract between the agency/client also applied to you