Reply to: Handcuff clause, opted in, advice required

[tractor]

An incisive question. The client is public sector and its funding source is such that it has severe restrictions on external contractors. I tried different routes but was informed there was only one agency I could go through. Good money and nice gig, so what do you do?

Try a psychiatrist who specialises in schizophrenia? We tried it....twice

[northernladyuk]

And surprisingly nothing more came of it. Onwards to better things.

[northernladyuk]

Ah right, that is a little more than "I brought the work to them".... it's more "I was forced to go through them, they have a monopoly and I was forced to bend over"

It was a bit cloak and dagger. Funnily enough, I tried to go through another agency who negotiated my asking rate and then stuck 20% on, having assured me they would put 12.5% on. Turned out they were on the wrong framework and for reasons that were never quite clear, I was directed to a single agency (Agency A). I brought the agreed total cost (including the 20% margin) to Agency A, who said they would do it for 5%, so I'm happy enough to have got 14% more than I asked for originally. Shame about the clause that they wouldn't negotiate. If that's bending over, then I sure enjoyed it.

[Wanderer]

Ah right, that is a little more than "I brought the work to them".... it's more "I was forced to go through them, they have a monopoly and I was forced to bend over"

I don't see that there was any loss to the contractor here. The contractor lands a gig with a client at a negotiated rate and the client pays the agency 5% on top of this to deal with the admin.

The new situation is one to be wary of. If Agency A is the only one that the client will deal with then what's happening with Agency C? Are they dealing through Agency A? How much margin are the agencies proposing to take now?

I'd definitely have a word with the client about this one...

[jmo21]

An incisive question. The client is public sector and its funding source is such that it has severe restrictions on external contractors. I tried different routes but was informed there was only one agency I could go through. Good money and nice gig, so what do you do?

Ah right, that is a little more than "I brought the work to them".... it's more "I was forced to go through them, they have a monopoly and I was forced to bend over"

[northernladyuk]

The issue for you may well be that Agent A has a contract in place with Client B that makes it prohibitive for you to go via Agent C.

In your original post you state that Agent A are charging 5%, hardly ripping you off are they?

I am pretty rusty on my knowledge in the UK, but the one area I deal with day in and day out is restriction clauses. There are quite a few assumptions that permeate CUK which I would challenge.

5% is a great deal and that is not the problem. I would love to get the contract through Agency A but can't.

I think I will put this one down to experience, as it may all seem like too much hassle to other parties whatever the contractual arrangements - the market I operate in is fairly buoyant at the moment so there's other stuff out there.

Thanks for your advice, all.

[Andy Hallett]

The issue for you may well be that Agent A has a contract in place with Client B that makes it prohibitive for you to go via Agent C.

In your original post you state that Agent A are charging 5%, hardly ripping you off are they?

I am pretty rusty on my knowledge in the UK, but the one area I deal with day in and day out is restriction clauses. There are quite a few assumptions that permeate CUK which I would challenge.

[Wanderer]

Views welcome, esteemed ones.

Ignore the agency A and proceed with contractual negotiations with agency C.

If agency A cause any fuss at all then tell them in no uncertain terms that they don't "own" you their restraint of trade is unenforceable because it was you who introduced them to the client, not vice versa. Also make it crystal clear that any attempts to damage your business dealings with agent C and the client will be met with legal action to recover your losses which may amount to the full value of the contract.

[northernladyuk]

You brought the work to Agent A, they wouldn't remove the clause... why not find another agent?

An incisive question. The client is public sector and its funding source is such that it has severe restrictions on external contractors. I tried different routes but was informed there was only one agency I could go through. Good money and nice gig, so what do you do?

[northernladyuk]

That makes sense but we don't know what is in the upper contract between client and agent. If something in there puts dibs on that contractor it could be a problem.

Also I still think there will be more than that paragraph about handcuff. That would probably say the contractor can't work for the client for a period of time. That is the one that is going to cause the problems I think.

Why anyone would concern themselves with what 'makes sense' to an aging rent boy who lacks the wherewithal to support his lady wife in a decent station is beyond me, but for the sake of other forum members: the upper contract is an unknown quantity; there is no other clause regarding handcuff. Now get back down the docks and earn me my pedicure money.

[northernladuk]

As the role is not available through Agency A, I do not see how they can successfully argue about loss of income and therefore enforce the clause. Upon discovering who the end client is, it might have been helpful to have an email exchange with Agency A confirming that they are not aware of the role (or can't broker it).

I'm with N/LadyUK on this. The scenario is not desirable but there is nothing enforceable to be worried about. If Agency A decides to kick up a fuss, they would probably lose and sour their relationship with the client.

That makes sense but we don't know what is in the upper contract between client and agent. If something in there puts dibs on that contractor it could be a problem.

Also I still think there will be more than that paragraph about handcuff. That would probably say the contractor can't work for the client for a period of time. That is the one that is going to cause the problems I think.

[northernladuk]

At first I wasnt sure whether this is a serious discussion. How do you explain a discussion between a northern lady, northern lad and a b/b*stard? And how does JMO fit into it??

He is our gimp.

[muser]

At first I wasnt sure whether this is a serious discussion. How do you explain a discussion between a northern lady, northern lad and a b/b*stard? And how does JMO fit into it??

Nevertheless, here's my 2 pence' worth -

As the role is not available through Agency A, I do not see how they can successfully argue about loss of income and therefore enforce the clause. Upon discovering who the end client is, it might have been helpful to have an email exchange with Agency A confirming that they are not aware of the role (or can't broker it).

I'm with N/LadyUK on this. The scenario is not desirable but there is nothing enforceable to be worried about. If Agency A decides to kick up a fuss, they would probably lose and sour their relationship with the client.

[northernladuk]

Now stop with all this complex nonsense and get by bloody tea on woman....

[northernladuk]

Is there anything else in your contract? I wouldn't say that is an normal handcuff clause and that is the one that will probably bite you. That one seems to set out the terms of payment should it happen but would expect there is a proper handcuff somewhere else.

There is a thread going from one of the agents asking something similar, well my answer in there is similar anyway. The handcuff is to stop you jumping ship and the first agent losing out. If that is the case then it is strongly enforceable. They will take the side of a losing party so in a case such as this if swapping agents means the first loses out it's pretty black and white.

The arguments come in a situation where the first agent cannot demonstrate he will make a loss, i.e. if the client terminates the agent relationship. There is no way that agent will ever get a penny from the client/contractor again so he is on thin ice trying to restrict trade when there is none for him.