Reply to: Restriction of trade?

[Wanderer]

So you weren't opted out, since that needs to be done in writing before being introduced to the client.

Agents typically don't understand this - they think it's EITHER when you are introduced OR when you start, therefore it's when you start. This is not correct - it's not that they read the rules and it's too legalese for them, it's generally that they can't understand grammar.

I agree. I would say proceed as if you had not opted out on the basis that either the opt out was invalid because it was done at the wrong time OR they made opting out a condition of doing business which is illegal.

They will scream and shout about it but I'd tell them that they can argue their case in court....

[SueEllen]

So you weren't opted out, since that needs to be done in writing before being introduced to the client.

Agents typically don't understand this - they think it's EITHER when you are introduced OR when you start, therefore it's when you start. This is not correct - it's not that they read the rules and it's too legalese for them, it's generally that they can't understand grammar.

REC has had the regulations explained to them by legal experts. Their take on the regulations is "OR" there as the PCG and the solicitors I've used think it's "AND".

Until a court case happens in a higher court over this then it's up to the individual contractor to take their particular agency to task over the regulations themselves.

The larger agencies are less likely to back down but there are things you can do the first is ensuring you get qualified legal advice and the second is fighting them on the other clauses that a judge is likely to rule unenforceable.

In this case there seems to be a few dodgy other clauses which would be hard for the agency to get enforced in a court.

[TheFaQQer]

Done some more investigation and found emails from another person from the agency that I had forgot...

Had contact about job.
24th May had interview with client
24th May email to say good feedback from interview from Comp Futures
25th May (morning) conformation that I was successful on getting job
25th May (afternoon) documents send and asked to sign and return (this had OPT OUT box)
25th May sent signed doc back but did NOT tick OPT OUT box.
25th May mail back to tell me to tick OPT-OUT box and resend.
(did not know too much about Opting OUT/IN and wasn't explained too.

So you weren't opted out, since that needs to be done in writing before being introduced to the client.

Agents typically don't understand this - they think it's EITHER when you are introduced OR when you start, therefore it's when you start. This is not correct - it's not that they read the rules and it's too legalese for them, it's generally that they can't understand grammar.

[stebain3258]

Done some more investigation and found emails from another person from the agency that I had forgot...

Had contact about job.
24th May had interview with client
24th May email to say good feedback from interview from Comp Futures
25th May (morning) conformation that I was successful on getting job
25th May (afternoon) documents send and asked to sign and return (this had OPT OUT box)
25th May sent signed doc back but did NOT tick OPT OUT box.
25th May mail back to tell me to tick OPT-OUT box and resend.
(did not know too much about Opting OUT/IN and wasn't explained too.

[SueEllen]

Thanks for all your assists in this matter, much appeciated.

One other point is that I could have moved over to the outsourcer and resumed working for the client on the 1st March but couldn't due to the agency insisting on the clause. That is now 4 weeks work i could have done so if it proves that they acted illegaly in the restriction then i might just claim for lose of earnings from them.

The agency haven't acted illegally.

They have just attempted to enforce a clause in a contract that you agreed to but can't be bound in a court by. If you agreed to it then it's your fault.

It isn't a consumer contract so you have to check the terms yourself

If you don't understand what you are signing then you need to pay to have it explained to you.

Also the fact it took your 4 weeks to get legal advice to challenge the contract is your fault not theirs. They may back down immediately once they get the solicitor's letter which means they can have a good argument not to give you 4 weeks compensation as they would have done so immediately if you challenged them properly from Day 1.

However if you don't ask you won't get so ask the solicitor you engage the best way forward.

[stebain3258]

Thanks for all your assists in this matter, much appeciated.

One other point is that I could have moved over to the outsourcer and resumed working for the client on the 1st March but couldn't due to the agency insisting on the clause. That is now 4 weeks work i could have done so if it proves that they acted illegaly in the restriction then i might just claim for lose of earnings from them.

[Wanderer]

Just been going over some things and have come up with something that might just sway my way.

I have never seen or signed a contract. All I've had from the agency is a Candidate Assignment, which says who i'm working for, rate of pay and start and end dates. It also says 'Service Provider Regulation Status' : OPT OUT
That was given to me on the 8th June, 1 week AFTER i started my assignment. NEVER was I informed of this prior or even given the option to OPT IN. Surely then this is not valid?

So it looks like you opted out of the "Service Provider Regulation Status", whatever that may be.


I suggest that your position is:

1. You have never given notice that The Conduct of Employment Agencies and Employment Businesses Regulations 2003 would not apply to this engagement so you are not opted out as they claim.
2. Their reference to "Service Provider Regulation Status" is nonsensical and could never be construed as being an "opt out" of the Agency Conduct Regulations.
3. At the time you signed the contract, you have been both introduced and supplied (see regulation 32.9)to the client therefore there was no possibility for you to opt out.
4. You want an immediate written assurance sent to yourself and the client stating that the consultancy will not seek to restrict you from working for the client.
5. You will take legal action to recover losses and damages if they do not comply

I recommend that you take legal advice on this otherwise they will just keep trying to bulltulip you. There is a chap called Roger Sinclair at Egos who has written a few good pieces for ContractorUK, he may be worth talking to. There are lots of other legal folks around too. You need to be careful about the cost of starting legal action as this can easily mount up. However, I get the impression that a letter from a specialist in contract law will carry a lot of weight and will be passed straight through to the legal department so it may be worth doing.

Good luck and let us know how you get on!

[stebain3258]

Okay, i think i will look at a solicitor on this

' Agencies should offer and receive a signed opt-out before the contractor is introduced to the client, otherwise the opt-out could be invalid, leaving the agency in breach of the regulations, and also preventing the agency from putting restrictions on the contractor that have been requested by the client.

Contractors should also expect to see a clause in the opt-out from the agency that clarifies that the regulations don’t apply and that the client does not control the contractor.

If a contractor is considered to be controlled by the client and does not opt out, then the agency is required to work through a series of steps. These include creating paperwork about the client’s requirements and contractor’s suitability for the role, possibly checking the contractor’s qualifications and completing a CRB

[SueEllen]

Just been going over some things and have come up with something that might just sway my way.

I have never seen or signed a contract. All I've had from the agency is a Candidate Assignment, which says who i'm working for, rate of pay and start and end dates. It also says 'Service Provider Regulation Status' : OPT OUT
That was given to me on the 8th June, 1 week AFTER i started my assignment. NEVER was I informed of this prior or even given the option to OPT IN. Surely then this is not valid?

Before posting it's a good idea to read and digest the other information on your thread.

A few posters have pointed out you are likely opted-in by default due to the agency not making you do a valid opt-out BEFORE they sent your CV over and you met the client.

I suggest you pay for a solicitor to send the agency a nasty letter. Yes it will cost a few pounds but it means that the agency will get off your back as they know if they do anything they will be very likely threatened with legal action.

[stebain3258]

Steve

Just been going over some things and have come up with something that might just sway my way.

I have never seen or signed a contract. All I've had from the agency is a Candidate Assignment, which says who i'm working for, rate of pay and start and end dates. It also says 'Service Provider Regulation Status' : OPT OUT
That was given to me on the 8th June, 1 week AFTER i started my assignment. NEVER was I informed of this prior or even given the option to OPT IN. Surely then this is not valid?

[eek]

Not much of a leg to stand on here.
Spoke to Agency and was told that every extension on my contract was a 'new' contract and that the clause was for 12 months AFTER i complete the contract, so the 12 months starts again after each extension and remain when i finish there.
Another querie is that I wasn't given the option to OPT IN and was automatically put into OPT OUT, that from what I've read is illegal as the agency has to give me that option to choose. I have never seen a contract regardless of signing one as it was between them and the client. I know that I don't have to as once i start the job it is binding as I accepted it.

opt in /opt out is irrelevant as most agencies think they do the opt out correctly and haven't

As for the 12 month thing. Yes it starts afresh every time but it probably isn't valid. If you really want to get out of it get a solicitor to deal with them for you.

[stebain3258]

Steve

Not much of a leg to stand on here.
Spoke to Agency and was told that every extension on my contract was a 'new' contract and that the clause was for 12 months AFTER i complete the contract, so the 12 months starts again after each extension and remain when i finish there.
Another querie is that I wasn't given the option to OPT IN and was automatically put into OPT OUT, that from what I've read is illegal as the agency has to give me that option to choose. I have never seen a contract regardless of signing one as it was between them and the client. I know that I don't have to as once i start the job it is binding as I accepted it.

[SueEllen]

This is the problem for you guys.

1) Legal advice costs money
2) No guarentee agency will back down
3) Client seeks easy life and engages baggage free contractor

Getting the legal advice up front is cheaper and actually doesn't cost that much.

Also agencies tend to behave themselves once they realise they are dealing with a real solicitor and so silly clauses like that aren't left in as they are told they will be ignored because they are unenforceable.

[Wanderer]

This is the problem for you guys.

1) Legal advice costs money
2) No guarentee agency will back down
3) Client seeks easy life and engages baggage free contractor

Yep, agency bluff and bluster tactics often wins the day and if that fails then they adopt the position of the dog in the manger.

It's a bit of a tulipty business model to have though isn't it....

[GB9]

This is the problem for you guys.

1) Legal advice costs money
2) No guarentee agency will back down
3) Client seeks easy life and engages baggage free contractor

1) Yes, agree, but in my case I was insured against such eventualities.
2) Also possible. If both side believe they are in the right.
3) Both existing and future client removes agency from supplier list.

In my case the agency in question was offered a cut-in by both myself and future client and declined as it wasn't large enough, so a fair argument might be that it was a bad commercial decision on the part of the agency.

I would suggest all contractors have insurance against such eventualities.