Reply to: Agenct's Negligence

[Wanderer]

The agent, their solicitor and their insurers tried every trick in the book to avoid liability. Beating them was hard work but worth it. In the end, we won. I am content that justice has now been done, I can now close this chapter in my life and move on to better things.

Good to hear you got a result in the end because it sounded like a bit of a complex case that a lot of people would have simply dropped and walked away from.

I'd be interested to know how much you spent on time and legal fees though.

[psychocandy]

How much then?

[factgasm]

Hello,

I started this thread and I am pleased to report a happy conclusion.

The dispute in question has now finally been resolved in my favour. The employment agent has conceded that they did indeed make mistakes and, as a consequence, I have now received a financial settlement from them to my satisfaction.

My solicitor believed we had a good chance of winning the case in court but it did not need to go that far. We went through pre-action protocol instead - the stage prior to court proceedings.

From the outset, the agent stated that they would defend their position vigorously. They tested us to the limit with various smokescreens, red-herrings, excuses and delays, but by remaining steadfast in our pursuit of the matter, the agent was made to see the error of its way - and pay up.

While our own evidence against them was always good, we knew that they were in possession of evidence that incriminated them. We asked them to provide copies of that evidence but (surprise, surprise) they refused, citing reasons of commercial confidentiality. We knew that was nonsense so we obtained a court order compelling them to hand that evidence over.

Despite serving the order on the agent, their response was to try to fob us off with copies of evidence we already held in our possession. Of course, we were already prepared for what to expect from them, so when it didn't arrive we warned them they might be held in contempt of court.

Finally and begrudgingly the agent handed over the evidence - only three days before mediation was to take place. When we read through it, it came as a revelation - it was even more damning than we had expected; the agent's negligence was plain to see. The game was up and the agent knew it.

Another tactic that they tried to use was the defence that employment agents are not a named category of professional under the laws on negligence. It is true that under the law, certain categories of professionals are explicitly named as owing a duty of care, such as doctors, lawyers, accountants, IT professionals and so forth, but this does not automatically mean that everyone else is exempt.

The agent tried to argue that employment agents are not such a named category and therefore, because of that, did not owe a duty of care. We demonstrated to them that this defence is a nonsense. (I even bought a copy of the legal practitioners leading textbook* on the matter for myself to study it).

Quite simply, the law states that, except for a very small number of special groups, everyone owes a duty of care and employment agents are not exempt from this.

The agent, their solicitor and their insurers tried every trick in the book to avoid liability. Beating them was hard work but worth it. In the end, we won. I am content that justice has now been done, I can now close this chapter in my life and move on to better things.

Kind regards,

factgasm.


*Charlesworth & Percy on Negligence

[AussieDigger]

Yeah, whatever you do, if you are approached by Cooper Burns Recruitment and asked to submit for a role. Promise the earth, delivery zero. Communications - poor to nothing. Claim to be the number one but then don't they all ?

[Taita]

No more rudeness and insults on this thread please.

If this is intended for me, I unreservedly apologise. My attempts at humour often fall short of a laugh!

[cojak]

No more rudeness and insults on this thread please.

[Taita]

Like I said, an "employment agency" and "employment business" are legal terms which describe a particular way of doing business. The description defined in the legislation is fairly clear and you will find that pretty much every agent is acting as one or the other so they are bound by the relevant laws, including the ones that say they must not purport to be operating on any other basis. I was going to look up the references to all of this but when I saw your rep was "never made it past tape changer", I decided not to bother. I'm sure that if you google it then you can read all about it.

Actually, I do know all about it without the benefit of Googling. Another poster referred to the relationship between 'Principle & Agent'. Agreed there are legal definitions regarding employment agencies/businesses and Acts governing their behaviour but they do not refer to the relationship as one of 'Principle & Agent' which is something else all together. Suggest you check it out before you drop your deck of punched cards (again) on your way to the machine room!

[Wanderer]

Why piffle?

Over the years I have worked on loads of 'agency' contracts that did not mention the magic words. Even if they had, it would have been very doubtful if those contracts fell within the remit of laws governing agents and principles. In IT contracting "agent" is another name for an independent entity striking a contract with a buyer and a contract with a supplier. In this case the "agent" does NOT act under the direction and control of the buyer although the supplier's people may carry out their work under the direction, control and supervision of the buyer.

Like I said, an "employment agency" and "employment business" are legal terms which describe a particular way of doing business. The description defined in the legislation is fairly clear and you will find that pretty much every agent is acting as one or the other so they are bound by the relevant laws, including the ones that say they must not purport to be operating on any other basis. I was going to look up the references to all of this but when I saw your rep was "never made it past tape changer", I decided not to bother. I'm sure that if you google it then you can read all about it.

[SueEllen]

Why piffle?

Over the years I have worked on loads of 'agency' contracts that did not mention the magic words. Even if they had, it would have been very doubtful if those contracts fell within the remit of laws governing agents and principles. In IT contracting "agent" is another name for an independent entity striking a contract with a buyer and a contract with a supplier. In this case the "agent" does NOT act under the direction and control of the buyer although the supplier's people may carry out their work under the direction, control and supervision of the buyer.

It's piffle as regardless of words missed out the fact that you have a choice to opt-in or opt out of The Conduct of Employment Agencies and Employment Businesses regulations means the contract is between the agent and the contractor's limited company.

If your limited company has a contract direct with the end client these regulations do not apply at all.

[Taita]

Piffle.

Take a look at your contracts boys. If you got the job through an agency then it will contain the magic words "employment agency" or "employment business" because these are terms defined by statute and they describe how the agent is acting within the legal framework that they are obliged to operate.

Why piffle?

Over the years I have worked on loads of 'agency' contracts that did not mention the magic words. Even if they had, it would have been very doubtful if those contracts fell within the remit of laws governing agents and principles. In IT contracting "agent" is another name for an independent entity striking a contract with a buyer and a contract with a supplier. In this case the "agent" does NOT act under the direction and control of the buyer although the supplier's people may carry out their work under the direction, control and supervision of the buyer.

[factgasm]

Piffle.

Take a look at your contracts boys. If you got the job through an agency then it will contain the magic words "employment agency" or "employment business" because these are terms defined by statute and they describe how the agent is acting within the legal framework that they are obliged to operate.

In my case, regardless of whether they were an agent or not, or whether the above words appeared in my contract, the fact remains that they failed to apply skills and expertise that they as a company claimed to have, a claim that I relied on.

That was the direct cause of my financial loss and that is enough for a professional negligence claim to succeed.

[Wanderer]

Technically the agency is not an agent, it is a contractor, and your Ltd Co is a subcontractor.

Correct. Check out the contracts. Most end user devised contracts deliberately exclude the 'agency' from acting as an 'agent'. Most agency client contracts are very similarly drafted.

Piffle.

Take a look at your contracts boys. If you got the job through an agency then it will contain the magic words "employment agency" or "employment business" because these are terms defined by statute and they describe how the agent is acting within the legal framework that they are obliged to operate.

[factgasm]

Correct. Check out the contracts. Most end user devised contracts deliberately exclude the 'agency' from acting as an 'agent'. Most agency client contracts are very similarly drafted.

I'm grateful to have this debate. It's useful to have a Devil's Advocate against whom I can sharpen my arguments. I'd rather have the wrinkles in my case ironed out before it goes to court.

There are two distinct phases in this kind of relationship.

(1) Firstly, forming the relationship : Before contracts are signed, the agency does the work it claims to have expertise in, namely creating the conditions so the prospective subcontractor can carry out work for the prospective client on behalf of the prospective contractor (currently the agency).

(2) Secondly, executing the relationship : After contracts are signed the agency becomes the prime contractor. I subcontract to it. That's fine, I understand that.

It is the signing of the contract that transitions the relationship from phase (1) to (2).

In my case, because the agent failed to exercise due diligence in forming the relationship (1) they prevented the execution of the relationship ever occuring (2). The agent refused to specify a start date thus presenting a problem in processing the employment pass application.

What matters here is that the company (call them agents or otherwise, that is fine) that introduced me to the client claimed to have expertise in forming contracts with overseas companies when in this case they clearly didn't. That and that alone resulted in the loss of the contract.

[Taita]

Technically the agency is not an agent, it is a contractor, and your Ltd Co is a subcontractor.

Correct. Check out the contracts. Most end user devised contracts deliberately exclude the 'agency' from acting as an 'agent'. Most agency client contracts are very similarly drafted.

[factgasm]

(See above post).

With IT contracting, you contract to the agency, he contracts to the client. You are not bought into a contractual relationship with the client, so the law doesn't apply.

I can't speak for what contracts you get engaged in, but the contract the agent provided to me explicitly stated the name and location of the client to whom I was to provide services; that much was unambiguous. Nowhere did the contract state that I was providing services to the agent. Therefore a contractual relationship with the client was not in doubt.

Your comment above is quite ironic as the agency mistakenly spent more than four weeks trying to engage me as a direct employee of the client.

Having sent themselves on a wild goose chase, by the time the agency had been corrected on the nature of the relationship, they had denied themselves enough time to grasp that the client wanted me to start work on the project in the UK. The agency did not need to see a Hong Kong employment pass in order to give me a contract with a start date as it maintained it did. The only party not understanding the arrangements the client required was the agency itself.

The application for my Hong Kong employment pass was being dealt with by a big four audit company. They made it clear that all documents they required from me, including the contract, would need to be complete and unambiguous.

By refusing to specify a start date on the contract the agent sabotaged the submission of my employment pass application as required: The audit company stated they would neither risk jeopardising the application nor their own reputation by submitting a sub-standard set of documents.

As the agency had all the necessary information immediately to hand and therefore could have provided a contract with a start date before the production of a Hong Kong employment pass, they and they alone are responsible.

Whether or not a contractual relationship would have existed between the client and me is neither here nor there. The agent claimed to have specialist skills* that both the client and I relied on those claims yet the agent failed to perform their work to even the most modest standard of care. This is sufficient to bring a successful claim for professional negligence.

*The agent's website makes bold claims of expertise in placing actuarial staff worldwide.