Reply to: Advice on Complex Situation

[iamintoit]

northernladuk

I don't know what is worse, Chav txt spk or random capital words in sentences. Saying that either of them make it difficult to take the post seriously.

why do you have to complain SO MUCH... now write something for these CAPS as well northernlad!

[northernladuk]

Why don't you try for a NEW contract rather than complicating things for yourself. At the end of the day, you don't want to put yourself in a TRICKY position.

Be careful!

I don't know what is worse, Chav txt spk or random capital words in sentences. Saying that either of them make it difficult to take the post seriously.

[timek]

Why don't you try for a NEW contract rather than complicating things for yourself. At the end of the day, you don't want to put yourself in a TRICKY position.

Be careful!

new contract with whom? Remember in the old contract it says you cant work for someone who we introduced to for a period after the contract ends.... also if opt out is valid than this clause applies.... else as per wanderers suggestion need to confirm if opt out is valid.

[iamintoit]

HI

If you properly entered into the opt out then it may be possible that they can hold you to this. However, if you signed the opt out AFTER you were introduced to the client then you may have a case that it wasn't valid and they must pay you regardless of if the client pays or not.

I would proceed with dunning (do a search on that term) to recover the debt. If they quote that clause then tell them that your opt out was after the introduction therefore not valid and you are proceeding with legal action on the basis that the agency conduct regulations requires that they pay you even if they have not been paid.

They will argue the point about the opt out and paying you of course, just tell them that they can argue it in front of the judge in court and no further discussion will be entered into.

Why don't you try for a NEW contract rather than complicating things for yourself. At the end of the day, you don't want to put yourself in a TRICKY position.

Be careful!

[Wanderer]

they also have in the contract they will not pay if they believe that consultancy will not pay them...... so nothing from them yet.

If you properly entered into the opt out then it may be possible that they can hold you to this. However, if you signed the opt out AFTER you were introduced to the client then you may have a case that it wasn't valid and they must pay you regardless of if the client pays or not.

I would proceed with dunning (do a search on that term) to recover the debt. If they quote that clause then tell them that your opt out was after the introduction therefore not valid and you are proceeding with legal action on the basis that the agency conduct regulations requires that they pay you even if they have not been paid.

They will argue the point about the opt out and paying you of course, just tell them that they can argue it in front of the judge in court and no further discussion will be entered into.

[timek]

Did the agency pay you for work done after the consultancy you worked through went bust?

not yet.... as they also have in the contract they will not pay if they believe that consultancy will not pay them...... so nothing from them yet.

[Wanderer]

thanks for the helpful advise - agency is playing hard ball, so will speak to the client to see how serious they are about retaining me .... and take it from there.

Did the agency pay you for work done after the consultancy you worked through went bust?

[timek]

thanks for the helpful advise - agency is playing hard ball, so will speak to the client to see how serious they are about retaining me .... and take it from there.

The only worry is the restrictive covenant clause, dont know how enforcable / unenforcable it is. dont want to be dragged into a long legal battle. Would have hoped that as agency has teminated contract it may be unenforcable but new to this so wasnt sure.

Next best thing as you suggested northernladuk is to OPT IN - From lots of forums it looks like its got nothing to do with IR35 more the agency protecting themselves...

[Wanderer]

Like NLUK says - talk to the client, leave the old agency right out of it. This is your best chance of getting a favourable result. Going direct to the client would be great but isn't always easy to do in practice. Choosing an agency to work as a middle man on a small margin (3-5% MAX) is the second option.

However, you may find that the client is adamant about you working for a new consultancy and if that's what they want to do then go for it.

The old agency may bluff and bluster but I'd tell them the restrictive covenant in their contract is unenforceable and threaten them with legal action to recover the full value of the contract if they deter the client from engaging you as this is a restraint of trade.

[northernladuk]

client has agreements with other consultancy and would like to continue that model rather than direct with agency. client has offered to move the contract to another consultancy who they have existing relationship with.... and work via thier agents

Balls, wish you had put that before I wrote all that..

Go with that then. The agency will bluster and moan and attempt to spoil it for you. Point out they are not losing money if you go with someone else so they don't have a leg to stand on to pull the handcuff. You have nothing to lose.

[MyUserName]

But if the consultancy has gone who will complain about the agency going direct to the client?

Is there something you are not telling us? I would be suprised if jumping over the corpse of the consultancy, bagging the comission and keeping you working at the client had not occured to the agency.

[northernladuk]

Well I see two options here depending on how tough you want to play...

Speak to the client... NOT the agent. See what your options are. Will your client engage with your current agent? Forget the whole consultancy thing for the minute and see if you can arrange a client->agent->you situation. Even if they did need a new consultancy try and avoid that. Attempt to convince the client that you can be contracted to them and be the middle man between the client and the new consultancy if there is one. You can do part of the work the consultancy is but via the client. Once you have an answer go back to the agent and dictate the terms. Tell them you are in the with the client and you want them to handle it. TELL them.. don't ask... the condition of this is you get a rate rise, since they are getting business for f'all work and that you want ZERO handcuff. You found the work, you are doing them a favour, they cannot handcuff you in. Either that or Opt In.

You will have to play hardball at this point as they will try and befuddle you with a load of rubbish. If they try and pull the handcuff tell them sod off. The handcuff is there to stop them losing business so you can't swap agancies mid contract etc. If there is no business there for the agent, which there wasn't until you stepped up, then the agency stands to lose nothing therefore they don't have a case. They will get silly so you have to stand your ground. If they don't play along go for a different agent. It's free money to them as they have nothing now so should bend.

The other option is just cut the agency out altogether, using the same excuse and go direct.

Just make sure you speak to the client first as the agent will get shirty and try and lean on your client so you are going to have play it hard. You have nothing to lose from what I can see. They will threaten legal action but it never appears.

[timek]

As others have saiid, why can the agency not negotite a new contract direct with the client, missing the consultancy part out completely.

You -> Agent -> Client.

Also getting the consultancy margin in your rate too, if you negotiate well.


GL

client has agreements with other consultancy and would like to continue that model rather than direct with agency. client has offered to move the contract to another consultancy who they have existing relationship with.... and work via thier agents

[Scrag Meister]

As others have saiid, why can the agency not negotite a new contract direct with the client, missing the consultancy part out completely.

You -> Agent -> Client.

Also getting the consultancy margin in your rate too, if you negotiate well.


GL

[timek]

Restrictive clause is with the agency - as thats who i have contracted though. Ideally as long as I am paid and things continue i wouldnt mind continuing i.e. contractor -> old agency -> new consultancy -> old end client.

the contract has now been terminated by agency.... so in effect I have no contract, so an alternatively suggestion by client is using a new agency / consultancy.... but this is where the restrictive caluse come to play i guess.