Reply to: Going direct with client - Restrictions Clause by Agent

[SueEllen]

I signed to opt out.

Did you sign it before you were interviewed by the client?

If so, can you afford a couple of lawyers letters?

How do you say 8 weeks?! my contract says 12 months I'd have to wait.

If you are opted-in then you only have to wait 8 weeks before going direct with the client.

You are opted-in if you sent the opt-out to the agency after you were interviewed by the client. However you need to be able to afford to get a solicitor to write to the agent telling them this and that the clause isn't valid.

If you are opted-out (and I mean properly opted-out)then if you have the money, you threaten to take the agency to court due to the clause being a restrain of trade. Normally a 12 month clause is a restrain of trade however other factors would need to be taken into consideration like how big the agency is.

However you need to get a solicitor to verify that either:
1. The entire clause is extremely likely* to be invalid due to you being opted-in by default, OR
2. If sections of the clause were struck out with a pen it's extremely likely* that's what is left wouldn't make sense, meaning that the clause couldn't be enforced.


*"extremely likely = the solicitor would give their best judgement but it would be up to a judge to decide. You via your solicitor would need to make your arguments good enough so the agent won't want to bother with a court case. Refusing to discuss any issues with the agency and referring them to your solicitor would be a good start if you get caught.

[Dynamic]

Did you opt out of the agency regs?

If not then you can go direct after 8 weeks from the end of the contract, regardless of what the contract may say.

I signed to opt out.

How do you say 8 weeks?! my contract says 12 months I'd have to wait.

[swamp]

Did you opt out of the agency regs?

If not then you can go direct after 8 weeks from the end of the contract, regardless of what the contract may say.

[Wanderer]

Some usual rubbish posted by some here.
Most agencies do not include payment terms in their contracts. At best its a schedule. So, you'll be hard pushed to sue for breach of terms never mind material breach.

Huh? I have never and would never enter into a contract which didn't state payment terms, that's just not good business.

If they are not stated then it's presumed to be 30 days anyway.

[SueEllen]

I did but it also said "[save in the case of supply through an employment agency or recruitment consultancy with whom the Contractor was also registered at the date of commencement of the last assignment]"

What does that mean? supply? registration?

Well if you are like most people on here you will find various copies of your CV from over the years are on plenty of different agency databases..............

I've never registered with an agency as a contractor.

[Dynamic]

I did but it also said "[save in the case of supply through an employment agency or recruitment consultancy with whom the Contractor was also registered at the date of commencement of the last assignment]"

What does that mean? supply? registration?

[Ignis Fatuus]

If I don't go direct and instead through another Company or recruitment Consultancy, could they still sue me?

Didn't you say that your contract read "The contractor shall not supply services directly or through any other person, firm or company"?

[Dynamic]

The agency could well sue you for a 'finders' fee or lost commission.

If I don't go direct and instead through another Company or recruitment Consultancy, could they still sue me?

[BolshieBastard]

Some usual rubbish posted by some here.

Most agencies do not include payment terms in their contracts. At best its a schedule. So, you'll be hard pushed to sue for breach of terms never mind material breach.

The agency could well sue you for a 'finders' fee or lost commission. Doubt very much they'd take on the client as they'll hope for future business with them.

And the client wont care if the agency sues you either.

Bottom line, your call.

[NotAllThere]

When they didn't pay you on time - did you inform them, in anyway, of their failure? Do you have records.

In the contract - WHO is the contractor - you or your company? If the latter then there is no problem - set up a new company.

Only issue will then be the contract that the client had with the agency.

I hope you win. But you'll only do so, if you buck your ideas up a bit and start paying attention to CONTRACT LAW

[SueEllen]

Are you sure this is a material breach? I have read opinion on other sites that have indicated that breach of payment terms is probably NOT a material breach. It might be worth seeking professional opinion on this before relying on it.

The advice I've been given from a solicitor who deals with contracts, is that you need to notify the other party every time there is a breach of contract - preferably in writing so you have proof.

So if you then eventually turn around , say this is the final straw and it's a material breach of contract you have enough evidence to back you up.

This may not deter the other party for threatening court action, hiring a solicitor to write you nasty letters or starting court action against your company but would help you tell them where to go.

[Hex]

Are the payment terms written into the contract?
and if so, did the agent breach them?

if YES then you have a "material breach of contract" and the contract is null and void.

I am in that position with my agent

Are you sure this is a material breach? I have read opinion on other sites that have indicated that breach of payment terms is probably NOT a material breach. It might be worth seeking professional opinion on this before relying on it.

[pin00ch]

Just go for it.
The agent wont find out and if they did, why would they bother?
I did this and mas happier since it was easier to get payment directly through the client.

[FarmerPalmer]

I have been with this agency for the past year.. Have been very bad with thier payments and communication .

Are the payment terms written into the contract?
and if so, did the agent breach them?

if YES then you have a "material breach of contract" and the contract is null and void.

I am in that position with my agent

[northernladuk]

The contract is only as good as the lawyer/solicitor that has been hired to sue you for breach at the end of the day.........

Up until that point its a bit of paper.

Just a thought as well..

Have been very bad with thier payments and communication

Isn't there something in your contract about paying you in a certain timescale. Sounds like they didn't hold up their end of the bargain either so wouldn't worry.