Reply to: Same client new agency

[NigelJK]

White flag, agency database more important (according to the Agency 'legal dept') to the client. I pointed out that my CV was on all of the S3 agency databases and every other agency that had ever put my CV forward. Still you can't win 'em all.

[LondonManc]

No they did the French/Italian thing.

Should have added 'when faced with a litigant'.

Surrendered? Changed sides?

[NigelJK]

No they did the French/Italian thing.

Should have added 'when faced with a litigant'.

[LondonManc]

Unhappily when it happened to me it was a US based outfit and they reacted as only the yanks can.

Started a war?

[NigelJK]

Unhappily when it happened to me it was a US based outfit and they reacted as only the yanks can.

[SueEllen]

If you 'opt out' that's exactly what they will do (it's one of the reasons the legislation was drafted in the first place), it would probably fail the 'reasonable clause' test in court, but as stated I don't know of anyone that's had it go that far (in 30 years of contracting). In practice you would get the left hook of the Agency 'legal dept' ringing you and giving you 'both barrels'. The 'legal dept' would also ring the client with the subtle right hook of 'we'll drag you through the courts' if you do this. (p.s. this is from experience, and there are ways around it if needs be and depending on the client).

I've been with other contractors who found themselves in a similar situation. In their cases it was the clients who set the agency straight. Only one of the contractors knew the agency had no legs to stand on before the client got involved because he had sought legal advice.

[SueEllen]

Hi SE,

Not contradicting you but can you (or anyone) provide an authoratitive link sunstantiating that statement ?

Thanks,

Boo

Look it up yourself on Google another poster managed to. I think he looked under "blue pencil test" or "blue pen test".

[LondonManc]

He didn't want to. The agent approached him so the agent will have dibs on the gig now. It's highly likely with at least two agents in site going direct won't be an option either.

I also consider debt/payment terms; if an agent is offering weekly pay versus a client taking over a month and sometimes longer (work from January getting paid in March not being uncommon when direct) then it takes a lot of risk out of the process.

[northernladuk]

If you 'opt out' that's exactly what they will do (it's one of the reasons the legislation was drafted in the first place), it would probably fail the 'reasonable clause' test in court, but as stated I don't know of anyone that's had it go that far (in 30 years of contracting). In practice you would get the left hook of the Agency 'legal dept' ringing you and giving you 'both barrels'. The 'legal dept' would also ring the client with the subtle right hook of 'we'll drag you through the courts' if you do this. (p.s. this is from experience, and there are ways around it if needs be and depending on the client).

Why do you want to go back through another agency, surely you'd be better off direct?

He didn't want to. The agent approached him so the agent will have dibs on the gig now. It's highly likely with at least two agents in site going direct won't be an option either.

[NigelJK]

If you 'opt out' that's exactly what they will do (it's one of the reasons the legislation was drafted in the first place), it would probably fail the 'reasonable clause' test in court, but as stated I don't know of anyone that's had it go that far (in 30 years of contracting). In practice you would get the left hook of the Agency 'legal dept' ringing you and giving you 'both barrels'. The 'legal dept' would also ring the client with the subtle right hook of 'we'll drag you through the courts' if you do this. (p.s. this is from experience, and there are ways around it if needs be and depending on the client).

Why do you want to go back through another agency, surely you'd be better off direct?

[Boo]

As the 12 month clause is written into the contract and unenforceable you can ignore it. You, the agency and even a judge are now not allowed to replace 12 months with 6 months.

Hi SE,

Not contradicting you but can you (or anyone) provide an authoratitive link sunstantiating that statement ?

Thanks,

Boo

[LondonManc]

I am confused as to why you mentioned the first client and Agent A? Are the relevant to this at all? I'm assuming you have contracted with Client 2 with Agency B and now want to contract with Client 2 via Agency C? That contract extract is the one you are just finishing? Or are you wanting to go back to Client 1??

Either way.... I think there is a bit of risk here as it's a bit close for comfort.

12 months handcuffs are generally unenforceable as they are too long. If you are talking going back to client 1 you are talking less than 6 months which is easily enforceable. So... The timescales are enforceable. The only get out you have here is if the previous agent has no chance of placing you in the position advertised. If they are not contending for the business then there can be no proven loss by you starting so they cannot invoke the handcuff. They could just be complete arses and block your application but it wouldn't stand up. They have to prove tangible loss for it to stand up.

Problem is you do not know if they have a shot at this. They could say they have it on their books but haven't advertised it as they are resourcing internally. If that is the case they the handcuff would stand and things could get very ugly for you.

Is it not possible to go back to previous agent and say you hear on the grapevine there are some gigs at the client in <general terms> area. Try not to give too much details. If they say yes and put you forward then happy days. Problem solved. If they say no, nothing on their books and no visibility of anything coming then get that in writing and go with Agency C. The previous agent just admitted they are not contending for the role so cannot prove loss if you start.

It's not a situation I'd be comfortable in messing about with handcuffs though. Although they may not stand up it will very rarely go legal. It's most likely the agents will kick up a fuss and argue at which point the client won't want to know and drop you to get rid of the issue.

HTH

This is the case in some organisations, who have three agencies on a business PSL and three different ones on an IT PSL. If you sometimes are based in the business, sometimes in IT, and this is a crossover, then you're right, it could get OP out of any trouble that they land in. Maybe asking the client if Agency 1 were ever in the running for the current role would be a good idea as a starter for ten in the backside-covering exercise.

[NigelJK]

12 months handcuffs are generally unenforceable as they are too long. If you are talking going back to client 1 you are talking less than 6 months which is easily enforceable. So... The timescales are enforceable.

For contracts where you have a water tight 'opt out' agreement in place. I can't remember this ever being tested for real as usually the Agency get very heavy handed with the client and the contractor and one usually backs down.

By watertight I mean that the Agency did EVERYTHING they were supposed to regarding the initial contract to make it watertight. Did they inform you about the opt out BEFORE introducing you to the client? Did you specifically state that you wanted to opt out (usually enforce by making sign a specific term in the contract, or there being a contract where it is stated that your ltd co opts out)?

Read the thread on opting out for more detail.

[SueEllen]

Hmmm, but if it's within 4 months of that 12 months it is still a reasonable time so should be considered. Saying your 4 month claim is invalid just because the paperwork says 12 is skating on thin ice surely? If they tried pulling you up about it at anything 6 months plus yes, its too long but not just because the paperwork has a 12 on it... If that makes sense?

The law doesn't work like that.

It was explained to me by a barrister than a solicitor a few years ago.

If the agency decided to challenge it and it went to court for a variety of reasons, the judge isn't allowed to insert an alternative clause. S/he is only allowed to interpret the clause's meaning if it's not clear and then say whether it's enforceable.

In this case unless the OP is a specialist so there is only 5 people in the country who can do their job or they are revenue earning like a salesman, then then the clause is very likely enforceable due to the time period. As the clause makes no sense if the time period is crossed out then the entire clause can be ignored.

It's up to the OP to get a solicitor to give their opinion on the contract then if the agency finds out and threatens them to , get that solicitor to send a letter pointing out if their client faces any detriment they will be take action against them.

Obviously if the OP was sensible in the first place they would have got the contract looked at and the agency would have been told to alter the handcuff clause. If the agency had then decided not to alter the handcuff clause again the OP could have ignored it unless of cause they only one of the 5 people in the country or revenue earning etc etc.

[SlipTheJab]

Unless they have a crystal ball or are stalking you they'll never find out, fill yer boots HTH.