Reply to: Returning to work via a diff agent

[Mailman]

You should find out just what they did. It could actually be mere coincidence thats all.

Re your opted status. If you have NEVER signed anything then you are automatically opted in under the agency regs.

Mailman

[Mindomoo]

Well........

Are you opted in or out geez?

Whats PCG going to do that your own lawyer cant do, and much quicker I would imagine?

Mailman

Dunno.

But I have have a CHAPS payment going through tomorrow.

Several solicitors letters, me walking off site and other threats achieved nothing.

Payment was confirmed 12 hours after someone in the PCG talked to someone in Atsco who talked to (I believe according to my contact at the agency) someone at the agency.

Whether or not I would have been paid the same day, I dont know, but.........

[Mailman]

No, you cannot with hold payment for a contract because the contractor has gone direct. The would be a penalty clause and penalty clauses are unenforceable.

If they really want to recover the cost of losing that client then they will have to take you to court. The only reason they would have with held the money is that its a lot easier for them to do so than to waste tens of thousands on a course of action they are more than likely to lose.

The funny thing when I was dealing with my dodgy f*ckers was they wanted to have "our" issue dealt with under the old regulations but when they were informed that if they did this then their actions become criminal, and not merely civil, they had a change of heart

But I digress.

Mailman

[tim123]

No, but a 12 month restraint on a 4 month contract is highly likely to be thrown out anyway if they tried to sue me under it.

A 12 month restraint perhaps, but the (short) length of the original contract is irrelevent. If it wasn't you could sign a 1 day contract and then ditch the agent on the basis that a restraint period longer than 1 day is disproportionate.

But the amount of original billing isn't the thing that the restraint has to be proportional to, it's the cost of acquiring a new client that is being recovered here. Arguablty the restraint should be shorter, the longer the original contract lasts, not the other way round.

tim

[Mailman]

Are you opted in or out geez?

Whats PCG going to do that your own lawyer cant do, and much quicker I would imagine?

Mailman

[Mindomoo]

How can the client have been shafted if they have had work done and not paid anything for it?



You have to be careful here. A breach of contract does not void the other terms in it.

tim

No, but a 12 month restraint on a 4 month contract is highly likely to be thrown out anyway if they tried to sue me under it.

I have it from a director of the agency in question that they know they should pay me even before the client pays but thats not the way they work so "what am I going to do about it"

So now not only do I want my money, I want blood.

Whether it will help or not, I believe the PCG and Atsco are now involved

[Mailman]

I am currently suing a well known agency for 23K in unpaid invoices - because the agency never had a client contract in place and refuses to pay myco until the client has paid them.

Are you opted in our out?

Mailman

[swamp]

Or you could just opt-in with the second agency. Would probably mean one hell of a legal mess should the first agency sue for breach of contract...

[swamp]

Just go with the other agency and keep things quiet. I've seen this done before.

If the original agency finds out what are they going to do? Nothing because any action would involve taking your Ltd to court and ultimately upsetting the client, resulting in no more placements.

[tim123]

I am currently suing a well known agency for 23K in unpaid invoices - because the agency never had a client contract in place and refuses to pay myco until the client has paid them.

The client however wants me back and have been as shafted by agency as I have.

How can the client have been shafted if they have had work done and not paid anything for it?

I am going back via a different agencyt despite a restraint clause - primarily because the agency are in breach of their contract with me.

You have to be careful here. A breach of contract does not void the other terms in it.

tim

[Mindomoo]

Has the original agency breached in anyway?

I am currently suing a well known agency for 23K in unpaid invoices - because the agency never had a client contract in place and refuses to pay myco until the client has paid them.

The client however wants me back and have been as shafted by agency as I have.

I am going back via a different agencyt despite a restraint clause - primarily because the agency are in breach of their contract with me.

[Mailman]

Apologies for the basic question, but I keep seeing the phrase "allows for the agents to be managed out of the business relationship". What exactly does "managed out of the business relationship" mean?

It means that they can be dropped from the contract and you can go to another agent or direct with the client without any problems.

Mailman

[Fleetwood]

It means that they're not allowed to "add value" any more.
hth

[BillHicksRIP]

Apologies for the basic question, but I keep seeing the phrase "allows for the agents to be managed out of the business relationship". What exactly does "managed out of the business relationship" mean?

[Mailman]

If this person is OPTED IN then the agents cannot include exclusion clauses in their contract. These clauses are unenforceable now.

The only way around this is if there is a clause in your contract that allows for the agents to be managed out of the business relationship (probably through a further extension). If no such clause exists then you can do what ever you like at the end of the contract.

EVEN if you are opted out then the original exclusion clause is likely to be so poorly worded that its unenforceable. A good indicator is if you are specifically excluded from a certain site OR, more likely, you are excluded from the client full stop. Unless the agent knows what its doing it most likely has included a blanket exclusion clause with the aim of stopping you working for that client regardless of location.

For example, if you are working for Credit Swiss in Canary Wharf a poorly written clause will be interpreted by the courts as saying you cannot work for Credit Swiss in Switzerland or America or Hong Kong etc. However, if the clauses has been written correctly it will only say you cannot work for Credit Swiss in Canary Wharf.

Then again you have to look at this a bit closer. If the agents tried to sue you, just how much money are they going to get out of you AND how much are they going to have to spend to get that blood from a stone (because they are going to have to go through the High Court to seek remedy for the breach of contract).

Unless you are some super duper chief exec in most cases it wont be worth the time or effort or money of the agents to chase you AND they certainly wont be wanting to hurt any future contracts with the client by going after them (there are exceptions to this but I wont go in to that here).

Mailman