Reply to: Transfer Restrictions

[TheVoice]

However, I've just received a solicitor's letter and invoice for DataSource's supposed loss of earnings because I went with the new agency.

Take copies for your records then send the originals back with "B***ocks" written on them in big black letters.

It's obvious things are slow financially for the agency & they are deperate for cash. They probably dont even have enough cash to follow through on their stupid empty threat.

[TykeMerc]

Hi What was the outcome. I am going through a similar situation.
The Agency I am currently working for are having a dispute with the company's recruitment dept and are threatening that I can not work for the company for 12 months afterwards, even though the company has said they will honour the contract.

Origionally I did opt out over 2 years ago. nothiing was signed but i did send a reply to an email about EAA regulations

I believe that I'm right in saying that an Opt Out has to be in writing with a "wet" i.e. in ink signature.

[BlasterBates]

I personally would never jump agencies for this precise reason. If you are an employee it isn`t a problem if you are a company and the MD is in a bad mood expect a court case. Some agencies won't chase this because it costs money.

[tonik]

Hi What was the outcome. I am going through a similar situation.
The Agency I am currently working for are having a dispute with the company's recruitment dept and are threatening that I can not work for the company for 12 months afterwards, even though the company has said they will honour the contract.

Origionally I did opt out over 2 years ago. nothiing was signed but i did send a reply to an email about EAA regulations

[Emily]

I'm getting legal advice on this area as we speak, so I will let you know what happens.

[NotAllThere]

I have no knowledge of the agency, so I can't comment there. Your client may also be technically in breach. I'd do what the others advise - nothing until a threat of action becomes real.

And find out whether you were opted in or out. Even if you signed an opt out form, you may find that legally, you're opted in. And, as Ardesco said, that's your get out of jail free card.

[pelican1]

seems pretty straight to me

How exactly did you get it? Was it in someway connected with you already being at the client?

I got the new contract by going through a selection process with the new agency, just as any contractor would - it had nothing to do with where I worked previously. DataSource could have put me through the same process 6mths earlier but they couldnt be bothered.

What makes it extra annoying is that a week before the contract ended I had the director on the phone shouting abuse at me, but not once did he mention the transfer restriction. Instead he told me that he would not pay me, for "doing the dirty on them". He did pay me - 6 weeks late!

The first I heard that he thought this clause applied was nearly 4mths after I finished. It's all a bit bizarre. I dont know whether he's really serious or whether he just came in after the New Year with a bad head. I am looking into the legal details of such restrictions, but I would be interested if anyone's had dealings with this particular company?

[NotAllThere]

I know you never said 99.99%, but it does seem that way, doesn't it.

[Ardesco]

Who is it who regularly contends that 99.99% of us are opted in, since you can't choose to opt out once you've met the client, or suchwise?

Well it would be me regulary saying that you can't opt out once you have met the client, I don't think I have ever said that 99.99% of us are opted in though. I'm sure a lot of people have opted out by checking the out box when they applied for a gig and there will be some agents who have a clue.

This being said there are also a hell of a lot of poeple who haven't specifically opted out, if the OP is one of these people he can use it as a get out of jail free card in this case.

[XLMonkey]

Presuming the OP has a Ltd company and a contract with an Agency could you not use this argument if you substitute Accenture and CSC with the 2 agencies and the end client being the same?

you could - which is rather the point. Accenture could sue CSC for damages if Joe moved from one to the other (assuming that there was ever a contract between Accenture and CSC that had a restraint clause in it). The courts would see that as a contract between two companies that should know better.

However, Accenture couldn't sue Joe personally, since that would be a restraint of his right to earn a living.

The problem with one-person contracting companies is that you and yourco are a lot more difficult to separate than CSC and Joe!

[NotAllThere]

Were you opted in with your original contract. If so they can't enforce a handcuff clause. A quick phone call to remind them of thier faux pas will should sort everything out if this is the case.

Who is it who regularly contends that 99.99% of us are opted in, since you can't choose to opt out once you've met the client, or suchwise?

[oracleslave]

Restriction of trade clauses are difficult to enforce on an individual who is moving from one employer to another (e.g. Joe moves from working for Accenture to working for CSC, and then delivers services to the same end client). The courts don't generally think its fair to restrict someone's right to earn a living.

Presuming the OP has a Ltd company and a contract with an Agency could you not use this argument if you substitute Accenture and CSC with the 2 agencies and the end client being the same?

[NotAllThere]

Was the original restrictive contract with your personally or with your company? Likewise, who is the letter threatening - you or your company?

...My contract did have a Transfer Restriction clause indicating that I should not take a new contract for the same or similar work with the client for up to 6mths after contract completion...

Would it be obvious that the new work is not the "same or similar"?

and is one that DataSource could not have put me into,

How exactly did you get it? Was it in someway connected with you already being at the client?

[Ardesco]

Were you opted in with your original contract. If so they can't enforce a handcuff clause. A quick phone call to remind them of thier faux pas will should sort everything out if this is the case.

[XLMonkey]

unfortunately, it looks like you have been badly advised (particularly by DataSource).

Restriction of trade clauses are difficult to enforce on an individual who is moving from one employer to another (e.g. Joe moves from working for Accenture to working for CSC, and then delivers services to the same end client). The courts don't generally think its fair to restrict someone's right to earn a living.

However, they are generally enforceable on a company. The courts think a company should be able look after itself (or go bust trying).

I assume that you were not a permie for the original client? In which case, the odds are reasonably high that DataSource have a case against yourco (or the umbrella that you are operating through).

You would be well advised to get some legal advice on it before doing anything else. I also know a few people who have come unstuck on this, to their cost.