Restrictive clause (or non solicitation clause) in previous contract

[Incognito]

I have below clause in my previous contract.

The Associate Company agrees that it and its Staff will not solicit or accept an offer of employment or engagement as a contractor or subcontractor, either permanent or temporary, with the Client during the continuance in force of this Agreement and for a period of six months after the termination of any agreement covering the provision of their Consultancy Services to that Client. For the purpose of this Clause 13.1 employment or engagement of the Staff with a firm or company which during such time in turn is engaged or seeks to be engaged in a contract with such a Client for the provision of services similar to those provided or capable of provision by us shall be deemed to be a breach by the Associate Company of its obligations hereunder if such Staff become(s) or is to become actively engaged directly or indirectly with such Client.

I have asked for the old agency but they are not issuing me the waiver.

1- Can my old agency say no to me for the waiver?
2- What should I do in such case, any option for me?

The company is a big firm having 4-5 agencies supplying the contractors. And each job is advertise by one agency and they are responsible for taking interview and bringing contractor on board.

My old contract is finished and this new contract is only available with agency-2. And agency-1 is not even aware about this new position.

Technically you could go in as a new Ltd and as agency-1 is not capable of proving these services they couldn't enforce the non-dealing clause. However, as you have the below:

Taking a no objection letter/email is mandatory. And this is been put in place by the client so that two agencies won't fight for same candidate.

I'm guessing this is done for any individual that is identified as having contracted their before? Your only real option is to try and speak to someone senior at agency-1 (other than your agent), explain that the role isn't available through them, the end client has asked you to obtain the no objection letter. If they say no ask them why as you will have to pass this feedback back to them. The chances are the end client won't really care, but it's a bit of bluff with agency-1. You can ask agency-2 to escalate this to the end client if agency-1 refuse, but dependant upon how many applicants he has he might not be bothered.

The regulations (regulation 10) in this matter only count for transfer fees, going 'temp to perm' or 'temp to temp' (going through a new agency). Where either of the above happens within 14 weeks of your start date or 8 weeks of your end date (whichever is later) then agency-1 can claim a transfer fee from the end client (unless offered an alternative of an extended period of hire). So what this means is that (if you were opted in) even though agency-1 could try and enforce the non-dealing clause, the likelihood is that a court wouldn't enforce it within the regulation timelines as you aren't damaging their commercial relationship (they can claim the fee) and anything outside the regulation time lines I.e five months after end date will again most likely be deemed to be unreasonable as the regulations had already provided a period of protection. This obviously could be different in different circumstances.

So what I suspect the non objection letter here is really doing is letting the client know that agency-1 isn't going to try and claim a transfer fee and therefore if agency-1 doesn't play ball just take it on the chin and move on. There is no point in expending emotion or energy.

[PrinceJohn]

Um... Why does Agency 2 know anything about the specifics of your previous contract with Agency 1? You didn't tell them did you?

Your contract between your Ltd and Agency 1 is a confidential business arrangement to which Agency 2 have no right to know anything about.

In the future, keep your mouth shut, ignore such silly restrictive clauses, and proceed with Agency 2 as normal. Maybe it's technically breach of contract, but remember that like everything else in life that is "illegal", it's only illegal if you get caught.

What Agency 1 doesn't know about your new arrangement with Agency 2 is not going to hurt them. And you're not going to tell them, are you?

Taking a no objection letter/email is mandatory. And this is been put in place by the client so that two agencies won't fight for same candidate.

[SlipTheJab]

Um... Why does Agency 2 know anything about the specifics of your previous contract with Agency 1? You didn't tell them did you?

Your contract between your Ltd and Agency 1 is a confidential business arrangement to which Agency 2 have no right to know anything about.

In the future, keep your mouth shut, ignore such silly restrictive clauses, and proceed with Agency 2 as normal. Maybe it's technically breach of contract, but remember that like everything else in life that is "illegal", it's only illegal if you get caught.

What Agency 1 doesn't know about your new arrangement with Agency 2 is not going to hurt them. And you're not going to tell them, are you?

^^^ This, keep schtum and fill yer boots!!

[billybiro]

I have below clause in my previous contract.



Now I would like to apply for another contract in the same company via another agency. But they are asking for a waiver from previous agency for the above clause Or I need to wait for 6 months.
I have asked for the old agency but they are not issuing me the waiver.

1- Can my old agency say no to me for the waiver?
2- What should I do in such case, any option for me?

Um... Why does Agency 2 know anything about the specifics of your previous contract with Agency 1? You didn't tell them did you?

Your contract between your Ltd and Agency 1 is a confidential business arrangement to which Agency 2 have no right to know anything about.

In the future, keep your mouth shut, ignore such silly restrictive clauses, and proceed with Agency 2 as normal. Maybe it's technically breach of contract, but remember that like everything else in life that is "illegal", it's only illegal if you get caught.

What Agency 1 doesn't know about your new arrangement with Agency 2 is not going to hurt them. And you're not going to tell them, are you?

[sharky]

That looks like a standard Umbrella not solicitation Clause to me.

the Sort answer is its a Gamble

Some "Umbrella company's and agents (Not all) only Care about its margin / commission and would happily sell their own Much loved relative to people smugglers to make that commission.
and it normal from them to under cut and do each other over all day long.

Willing to bet not many will/have lawyered up to sue ex employees for simply taken a other Job at the end of a contract that's the game we play.

End clients on the other hand may well do if you do not part on good terms and just left them in the do do mid project.

[northernladuk]

Only if you 'opted out' (and that's lower than normal IME).

If the regulations apply 8 weeks is recommended, with (IIRC) 12 weeks the legal maximum.

Still will be too much for most clients to suffer so just as terminal to the gig.

[NigelJK]

6 months is a fair clause

Only if you 'opted out' (and that's lower than normal IME).

If the regulations apply 8 weeks is recommended, with (IIRC) 12 weeks the legal maximum.

[SueEllen]

By myself. I am new to contracting and last contract was my first contract.

Ok then you need to do as the agent 2 says.

If you got the contract reviewed by a lawyer or someone with legal knowledge you may have had a chance of telling agency 1 to foxtrot oscar.

[PrinceJohn]

Did you get your original contract reviewed? And who by?

By myself. I am new to contracting and last contract was my first contract.

[SueEllen]

The company is a big firm having 4-5 agencies supplying the contractors. And each job is advertise by one agency and they are responsible for taking interview and bringing contractor on board.

My old contract is finished and this new contract is only available with agency-2. And agency-1 is not even aware about this new position.

Did you get your original contract reviewed? And who by?

[PrinceJohn]

You can't. These clauses are specifically designed so you can't just fob off your existing agency and go with someone else doing the same job.
asd
Your best hope is finding out if your original agency can pitch for the work instead, let them know a job is going and you are interested and your agent should be on the phone in milliseconds trying to catch a sniff.

If it's an exclusive deal between new agency and client then you are tulip out of luck.

The company is a big firm having 4-5 agencies supplying the contractors. And each job is advertise by one agency and they are responsible for taking interview and bringing contractor on board.

My old contract is finished and this new contract is only available with agency-2. And agency-1 is not even aware about this new position.

[SueEllen]

6 months is a fair clause if the role and/or skills required are the same. Particularly if the client is an SME, or it's a large client and the same location.

[dogzilla]

Now I would like to apply for another contract in the same company via another agency.

You can't. These clauses are specifically designed so you can't just fob off your existing agency and go with someone else doing the same job.
asd
Your best hope is finding out if your original agency can pitch for the work instead, let them know a job is going and you are interested and your agent should be on the phone in milliseconds trying to catch a sniff.

If it's an exclusive deal between new agency and client then you are tulip out of luck.

[PrinceJohn]

I have below clause in my previous contract.

The Associate Company agrees that it and its Staff will not solicit or accept an offer of employment or engagement as a contractor or subcontractor, either permanent or temporary, with the Client during the continuance in force of this Agreement and for a period of six months after the termination of any agreement covering the provision of their Consultancy Services to that Client. For the purpose of this Clause 13.1 employment or engagement of the Staff with a firm or company which during such time in turn is engaged or seeks to be engaged in a contract with such a Client for the provision of services similar to those provided or capable of provision by us shall be deemed to be a breach by the Associate Company of its obligations hereunder if such Staff become(s) or is to become actively engaged directly or indirectly with such Client.

Now I would like to apply for another contract in the same company via another agency. But they are asking for a waiver from previous agency for the above clause Or I need to wait for 6 months.
I have asked for the old agency but they are not issuing me the waiver.

1- Can my old agency say no to me for the waiver?
2- What should I do in such case, any option for me?