Reply to: Contract Restriction Covenant Terms

[BigDataPro]

+1 It would usually be a different piece of paper as they need your personal signature on the opt-out not your company's signature.

So if you don't remember signing a separate opt-out you probably haven't opted out.

Correct. Usually it would be a single piece of paper but some agents include it in the terms of engagement. For e.g. in my current role the Terms of Engagement says

...both the Consultancy and the Consultancy Personnel have agreed to opt out (or will,
prior to Assignment, ...) of the Conduct of Employment Agencies and
Employment Businesses Regulations 2003 (Conduct Regulations) such that those
regulations will not apply to this agreement ...

[bbp]

Is the above an extract from your contract that has been supplied to you by the client to go direct?

It's from my previous contract with the agency. Sounds like I did not opt-out of agency conduct regulations. Why is that useless?

[eek]

Read this Opt in or opt out - Agency Conduct Regs - Qdos Contractor

I'm not up to speed of late on it, so could be talking tulip. But agents I have dealt with a few years back had a separate form to sign to say 'I opt out of the agency regs'. My understanding is if you haven't signed something to that effect then you are covered by the agency regulations which limits your exclusion clause to 8 weeks from the end of your last contract.

+1 It would usually be a different piece of paper as they need your personal signature on the opt-out not your company's signature.

So if you don't remember signing a separate opt-out you probably haven't opted out.

[rootsnall]

What does it mean if I haven't opted out?

Read this Opt in or opt out - Agency Conduct Regs - Qdos Contractor

I'm not up to speed of late on it, so could be talking tulip. But agents I have dealt with a few years back had a separate form to sign to say 'I opt out of the agency regs'. My understanding is if you haven't signed something to that effect then you are covered by the agency regulations which limits your exclusion clause to 8 weeks from the end of your last contract.

[northernladuk]

What does it mean if I haven't opted out?

Nothing. It's utterly useless.

Is the above an extract from your contract that has been supplied to you by the client to go direct?

[bbp]

you probably haven't.
The agency opinion might be different but evidence is what matters.

What does it mean if I haven't opted out?

[Lance]

It is a solid offer from the client, everything is set to start if this is sorted. I'll be honest, have no idea about opting out of agency conduct regulations. I signed only the contract & below is the only relevant clause I can find. I guess I did not opt-out then?

he/she will at all times comply with all relevant laws, regulations,
guidance and codes applicable to the provision of the Services and the
performance of work by the Contractor, in particular where applicable
the code of practice of the Recruitment and Employment
Confederation, and the Employment Agencies Act 1973, the Conduct of
Employment Agencies and Employment Businesses Regulations 2003,
the Data Protection Act 1998, the AWR, the Immigration, Asylum and
Nationality Act 2006, Income Tax (Earnings and Pensions) Act 2003, the
Working Time Regulations 1998, the National Minimum Wage
Regulations 2015 and all statutory requirements from time to time in
place in respect of equality and diversity;

you probably haven't.
The agency opinion might be different but evidence is what matters. Similarly if they have no evidence of you working there they can't do anything anyway.
It's not like you're going to be on site till at least summer anyway is it?

[bbp]

It is a solid offer from the client, everything is set to start if this is sorted. I'll be honest, have no idea about opting out of agency conduct regulations. I signed only the contract & below is the only relevant clause I can find. I guess I did not opt-out then?

he/she will at all times comply with all relevant laws, regulations,
guidance and codes applicable to the provision of the Services and the
performance of work by the Contractor, in particular where applicable
the code of practice of the Recruitment and Employment
Confederation, and the Employment Agencies Act 1973, the Conduct of
Employment Agencies and Employment Businesses Regulations 2003,
the Data Protection Act 1998, the AWR, the Immigration, Asylum and
Nationality Act 2006, Income Tax (Earnings and Pensions) Act 2003, the
Working Time Regulations 1998, the National Minimum Wage
Regulations 2015 and all statutory requirements from time to time in
place in respect of equality and diversity;

[northernladuk]

Actually. When you say opportunity...is this anything beyond a client manager speaking to you? Do you have the rate? Can you bypass PSL? Will they go direct even?

Or is all this wishful thinking?

[northernladuk]

It's me who wants to go direct as the last contract through them was a nightmare. Was given a lot of false promises and always cornered me into situations where I had to agree to lower than expected rates or risk going out of work for a few months. I work in a niche area and is not as easy to just leave and find something else.

Been out of contract for 4 months now. Can't afford to wait for 2 more months. The client won't wait for me either. If I go through them it'll be me taking the substantial cut as their budget is limited due to COVID. I understand going through them will be the last resort for me, but was hoping the terms are not enforceable due to their ambiguity.

If you know what the client is paying and it's easy work for the agency can you not just approach them and say you've got work at the client and only need the agency for the paperwork therefore you want it at 10% less than what the client budget is.

If things are as tight as you say I'd be very tempted to go back through an agency at the lower rate for a smooth transition. Don't get greedy over what the client budget is. It's always more with agencies taking their cut, but know the figures this time you can negotiate.

Actually, thinking about it. If the agency is on site how come they are not on a fixed percentage? IF they are then you can't get screwed.

You 100% sure you've got this wrong and the agency hasn't screwed you? They are a pain in the ass at the best of times but are a necessary evil. Can you get over that and go in through the agency again?

[Lance]

This ^

If you did not opt-out (correctly) the maximum handcuff clause is only 14 weeks

whilst true. It's still option 2 for me as you could well end up arguing about whether it's been done correctly or not. This will still be an agency with the hump, and whether they have a case or not, they do still have a right to seek redress.

[SimonMac]

Did you opt out of the agency conduct regulations ?

This ^

If you did not opt-out (correctly) the maximum handcuff clause is only 14 weeks

[Lance]

You missed option 4 of holding back the 20% and then negotiating with the agency if/when they start threatening you. Not one for those who like a quiet life but I bet the agency would accept 10%.

sort of.
I'd count that as option 2 though. I wouldn't want to be negotiating over a contract breach without legal assistance.

[rootsnall]

the only real way to find out if it's enforceable is in a court of law.
It seems to me that unless the client develops a backbone there are three possible outcomes.

1) You go via the agency
2) you go direct and end up in legal dispute with a cost of around £1500 to start, and maybe more if it gets to court and you lose
3) you don't get the gig as it's too much like hard work

You missed option 4 of holding back the 20% and then negotiating with the agency if/when they start threatening you. Not one for those who like a quiet life but I bet the agency would accept 10%.

[Lance]

It's me who wants to go direct as the last contract through them was a nightmare. Was given a lot of false promises and always cornered me into situations where I had to agree to lower than expected rates or risk going out of work for a few months. I work in a niche area and is not as easy to just leave and find something else.

Been out of contract for 4 months now. Can't afford to wait for 2 more months. The client won't wait for me either. If I go through them it'll be me taking the substantial cut as their budget is limited due to COVID. I understand going through them will be the last resort for me, but was hoping the terms are not enforceable due to their ambiguity.

the only real way to find out if it's enforceable is in a court of law.
It seems to me that unless the client develops a backbone there are three possible outcomes.

1) You go via the agency
2) you go direct and end up in legal dispute with a cost of around £1500 to start, and maybe more if it gets to court and you lose
3) you don't get the gig as it's too much like hard work