Reply to: Agency restriction quistion

[SueEllen]

I've checked the history and they didnt even make the introduction, it was a former colleague of mine who works at the client.

At no time was I asked to opt out and it is not specifically mentioned in the contract.

I'm worrying less now

I hope you sent them the email telling them to do one.

BTW don't explain yourself to them i.e. it's a someone else who introduced you to the client, just keep all written communication short and concise.

[Wanderer]

Whether you "opt in" or "opt out" makes no difference as really the fundamental question is would they be prepared to go to court? - I doubt it

Don't try and pay down the importance of the opt out. While it's true that contract disputes rarely come to court, they are often settled by negotiation.

So if the contractor does not opt out then it is absolutely clear that the 6 month restraint of trade is unlawful and unenforceable.

If the contractor DOES opt out then it's a grey area so there may be a case to argue (in court or otherwise) and the parties may agree to come to a settlement which wouldn't have been made if the contractor hadn't opted out.

[scot]

I've checked the history and they didnt even make the introduction, it was a former colleague of mine who works at the client.

At no time was I asked to opt out and it is not specifically mentioned in the contract.

I'm worrying less now

[Not So Wise]

They have a clause stating that I can't work at the client for 12 months. I didnt opt out before interview etc but the contract is entitled Opt out Contract.

The contract can be titled whatever it wants, the devil is in the actual text...does it specifically say something like "you agree to opt out of the agency regulations"? If not you are opted in

If it does say something like that, then next question is, did you meet client (face to face, tel interview) before signing contract? (HIGHLY likely)
Then you are opted in because from point you meet client it is too late to opt out even if you really wanted to

Reality that most agency’s don't want to admit is that 99.999% of contractors are opted in, even though many have signed opt out declarations/contracts because agency’s do not get them to sign the paperwork before the interview, because it is too much hassle for the agency’s

[DodgyAgent]

Listen to the man. He's the worst of the worst. If he wouldn't do it, nobody would.

I always enjoy an opportunity to "spout off"

[Old Greg]

I am not a legal expert but there are a couple of things here you should consider:

1. That no agency has ever as far as I know been stupid enough to take a client or a contractor to court over this clause unless the contractor takes the pi** and say goes direct on day 2 of the contract.
2. The agency would have to show loss or gain an injunction to stop the contractor from working - again very costly. I think you might find that they also need to specify what their recourse is should you breach this clause. For example they should probably say that for each day you work direct within the 6 months they will charge you say £100.
3. Any restrictive clause is unlikely to hold up anyway beyond 6 months. Any longer may well be considered a restrictive practice.

It is a question of whether you would want to call their bluff, and bluff they will because their egos demand it.

Whether you "opt in" or "opt out" makes no difference as really the fundamental question is would they be prepared to go to court? - I doubt it

Listen to the man. He's the worst of the worst. If he wouldn't do it, nobody would.

[DodgyAgent]

I am not a legal expert but there are a couple of things here you should consider:

1. That no agency has ever as far as I know been stupid enough to take a client or a contractor to court over this clause unless the contractor takes the pi** and say goes direct on day 2 of the contract.
2. The agency would have to show loss or gain an injunction to stop the contractor from working - again very costly. I think you might find that they also need to specify what their recourse is should you breach this clause. For example they should probably say that for each day you work direct within the 6 months they will charge you say £100.
3. Any restrictive clause is unlikely to hold up anyway beyond 6 months. Any longer may well be considered a restrictive practice.

It is a question of whether you would want to call their bluff, and bluff they will because their egos demand it.

Whether you "opt in" or "opt out" makes no difference as really the fundamental question is would they be prepared to go to court? - I doubt it

[scot]

Well put

[Wanderer]

They have a clause stating that I can't work at the client for 12 months. I didnt opt out before interview etc but the contract is entitled Opt out Contract.

Yeah, tell them this:

1. The heading "opt out contract" doesn't amount to an opt out as required by The Conduct of Employment Agencies and Employment Businesses Regulations 2003.
2. You didn't opt out of the agency regulations before your introduction to the client so it's not valid
3. Your legal council says that this has never been tested in court and you are quite willing to take it on as a test case to set a precedent .
4. Cease and desist. Either bring the case to court of bugger off and leave me alone.

[scot]

Ok. I get the message, cheers folks.

[Old Greg]

OK, I've had another thought. What exactly is the "usual restriction clause" you mention? If it's more than 14 weeks from the start or 8 weeks from the end then it's not valid as you didn't opt out of the agency regulations so tell them to shove it.

Remember that they can only take legal action against your LTD company, not you personally and if it came to court then your LTD can cease trading and they will get nothing.

I wonder if going via an Umbrella is an answer (of sorts). Close down the Ltd with Entrepreneurs Relief (if there's cash in there) and take it from there.

IANAA or L or indeed expert at all.

[SueEllen]

They have a clause stating that I can't work at the client for 12 months. I didnt opt out before interview etc but the contract is entitled Opt out Contract.

That's why we are all telling you that the contract won't stand up to legal scrutiny.

As suggest do a Data Subject Access request now. (Make sure you send a cheque with the letter and put the cheque number in the letter, as this gives them no excuse not to send you the information.)

The reason to do so is if they are stupid enough to go all the way to court they will have to falsify documents to prove their case.

Oh and it's a common trick for limited companies to disappear before, during or even after they have lost a court case.

[scot]

They have a clause stating that I can't work at the client for 12 months. I didnt opt out before interview etc but the contract is entitled Opt out Contract.

[Wanderer]

Agent A is attempting to stop me taking the contract with Agent B quoting the usual restriction clause.

At no time did I or was I asked to opt out.

OK, I've had another thought. What exactly is the "usual restriction clause" you mention? If it's more than 14 weeks from the start or 8 weeks from the end then it's not valid as you didn't opt out of the agency regulations so tell them to shove it.

Remember that they can only take legal action against your LTD company, not you personally and if it came to court then your LTD can cease trading and they will get nothing.

[Old Greg]

Put in a subject access request under the Data Protection Act for all info held about you. Won't do you much good but might be fun. You can then report them to the Informaiton Commissioner for potential non-compliance. Or summat like that.