Reply to: Non-solicitation of Client clause.

[Qdos Contractor]

The majority of contracts will include the individual contractor's name somewhere and it's not necessarily a problem.

Obviously the agreement must be between the two companies only - we do occasionally see contracts which include the individual as well as his company, which is clearly not good. You should also only sign on behalf of your company and not as an individual.

If you are simply named in the schedule I wouldn't consider this a failing point as long as there was a right of substitution in the contract. Ideally you should be referred to as the 'Initial Representative' or similar.

[minstrel]

Agreed and of course you are correct but I would argue if someone has a contract that names them they won't have had it checked by QDOS and the like who would have picked up on this so other clauses such as MoO or RoS will be incorrect or missing. Maybe a bad assumption on my part there but still doesn't bode well.

I always get my contracts reviewed (Bauer & Cottrell not QDOS). My name has always been in the contract somewhere and it has always come back from review as an IR35 pass.

Does everyone else here get their individual names removed from the contract?

[northernladuk]

I don't believe a contract simply naming the person is an automatic IR35 fail. Especially if you have a RoS clause.

Agreed and of course you are correct but I would argue if someone has a contract that names them they won't have had it checked by QDOS and the like who would have picked up on this so other clauses such as MoO or RoS will be incorrect or missing. Maybe a bad assumption on my part there but still doesn't bode well.

[GB9]

I helped a friend in a similar situation. Agency basically withheld payment for last few invoices and said they were keeping the money due to breach of contract. They sent a few "scary" letters via solicitor. We sent one back outlining our case and invoking late payments charges for the overdue invoices and they paid in full (with late payment charges) a couple of days later.

Minstrel, I would be interested to know the agency as I had a similar experience.

OP - para 99.1 mentions similar services but you said it is a completely different job. Either way, looks more like agency and client needing a chat. Usually resolved amicably.

[Zippy]

If the role is permanent then you aren't providing services but are an employee. This is a completely different relationship.

This means:
1. The agency has a right to charge the fee mentioned in the contract between the client and the agency for procuring permanent staff from the client.
2. You pay nothing. Agencies cannot charge permanent employees money for finding them work.
3. You need to check your IR35 status otherwise you need to pay back tax on your company's earnings.

I think SE is right. There's a bit in the contract which mentions the client will have to pay 20% of your first years salary to the agency.
Not your problem.

[captainham]

I don't believe a contract simply naming the person is an automatic IR35 fail. Especially if you have a RoS clause.

I believe you're right in that it is not an automatic fail. For something similar, I was advised by Qdos to remove such personal naming because of course because it is my LtdCo that should be agreeing actual working arrangements with the client, not me personally. They only used the word "recommend" when advising me me to look at changing that clause...

[NotAllThere]

99.1 Throughout the Assignment Term and for a period of 6 months afterwards the Contractor will not and will procure
that the Personnel will not, other than with the written consent of AGENCY X, provide services similar to
the Services or any information technology related services in any capacity either directly or indirectly to:

The contractor is the contractor's ltd co. After dissolution that no longer exists. When a company doesn't exist, it doesn't have any personnel.

99.4 I can't see standing up. Agency X hasn't, in fact, suffered any loss by you taking the permanent job with this customer of their client.

Take the job, and do what Minstrel says if there's a problem getting payment. Even if they try "breach of contract", they cannot withhold payment. In my view it's highly unlikely there will be any comeback on you. Most agencies aren't that stupid - they may threaten and bluster, but in the end, they won't do anything.

[d000hg]

EDIT: didn't spot the line about your contract naming you by name? That means that disolving definately won't work and also you are probably screwed for IR35 as well. Did you not get it checked by QDOS or the like?

I don't believe a contract simply naming the person is an automatic IR35 fail. Especially if you have a RoS clause.

[Wanderer]

But if Contractor is the WibbleCo Ltd and Wibbleman is no longer a Director or employee there is very little that WibbleCo can do to stop Wibbleman going direct.

They can actually, there was a case of a car dealership where the worker did just that and lost.

I helped a friend in a similar situation. Agency basically withheld payment for last few invoices and said they were keeping the money due to breach of contract. They sent a few "scary" letters via solicitor. We sent one back outlining our case and invoking late payments charges for the overdue invoices and they paid in full (with late payment charges) a couple of days later.

Yeah, I agree with that. To my mind most of them are overly restrictive and wouldn't stand up in court so I'd call their bluff too.

As others ask, your opt out status is important. If you didn't opt out properly then this restriction may not be valid.

I would be inclined to take the new job and say nothing to the agency. If they want to start a fight about it then I'd see them in court and argue "restraint of trade". I doubt that they would take it that far though because losing a case would seriously mess up their business model.

[SueEllen]

If the role is permanent then you aren't providing services but are an employee. This is a completely different relationship.

This means:
1. The agency has a right to charge the fee mentioned in the contract between the client and the agency for procuring permanent staff from the client.
2. You pay nothing. Agencies cannot charge permanent employees money for finding them work.
3. You need to check your IR35 status otherwise you need to pay back tax on your company's earnings.

[minstrel]

"99.1 Throughout the Assignment Term and for a period of 6 months afterwards the Contractor will not and will procure
that the Personnel will not, other than with the written consent of AGENCY X, provide services similar to
the Services or any information technology related services in any capacity either directly or indirectly to:"

And the Contractor is responsible for and financially liable for the actions of the 'personnel' which is probably you at a guess.

But if Contractor is the WibbleCo Ltd and Wibbleman is no longer a Director or employee there is very little that WibbleCo can do to stop Wibbleman going direct.

I helped a friend in a similar situation. Agency basically withheld payment for last few invoices and said they were keeping the money due to breach of contract. They sent a few "scary" letters via solicitor. We sent one back outlining our case and invoking late payments charges for the overdue invoices and they paid in full (with late payment charges) a couple of days later.

A couple of questions:

1. Are you opted out of the Agency Regulations?

2. Will you be terminating your contract early to move positions or will you be doing it at natural termination point of contract?

[wibbleman]

"99.1 Throughout the Assignment Term and for a period of 6 months afterwards the Contractor will not and will procure
that the Personnel will not, other than with the written consent of AGENCY X, provide services similar to
the Services or any information technology related services in any capacity either directly or indirectly to:"

And the Contractor is responsible for and financially liable for the actions of the 'personnel' which is probably you at a guess.

Seems fairly water tight then...

[tractor]

....

I've just found this - the "contractor" is the ltd company...

Contractor The limited company referred to in the Assignment Schedule who will perform the Services for the Client.

"99.1 Throughout the Assignment Term and for a period of 6 months afterwards the Contractor will not and will procure
that the Personnel will not, other than with the written consent of AGENCY X, provide services similar to
the Services or any information technology related services in any capacity either directly or indirectly to:"

And the Contractor is responsible for and financially liable for the actions of the 'personnel' which is probably you at a guess.

[wibbleman]

Check the Opt in/out thread at the top of this forum as well. Your status may or may not affect the lenght of time for the restraint of trade.

I believe dissolving the company will not work for various reasons and means they can still take legal action against you. Whether they actually will is a different issue. Do they have the stomach for a legal fight?

EDIT: didn't spot the line about your contract naming you by name? That means that disolving definately won't work and also you are probably screwed for IR35 as well. Did you not get it checked by QDOS or the like?

I've just found this - the "contractor" is the ltd company...

Contractor The limited company referred to in the Assignment Schedule who will perform the Services for the Client.

[northernladuk]

Check the Opt in/out thread at the top of this forum as well. Your status may or may not affect the lenght of time for the restraint of trade.