Sort of legal question regarding contracting...
Discussion
... I am currently contracting through an agency. I have the folowing written in my "contract" with the agency (which i dont think i ever signed BTW although i note it has been signed on my behalf - cheeky fcks!! 
).
Anyway:
"The consultancy (me) shall not for a period of six months following the termination of the assignment supply its services directly, or through any other person, firm or company, to any Client for which it has carried out Assignments at any time during the previous six months."
So - does anyone know what i might be letting myself in for if i was to go against that statement and provide a service for a company directly that i have worked for "under" the agency?
As a slightly related question, a guy in the same office as i has gone on the books at the firm we are both currently working for. He was working "under" the same agency as i was and has joined from contract to books seamlessly. I have not heard anything bad yet regarding his circumstance; the difference, however, between him and me is that i would still be contract....
Furthermore, my timesheets are processed using an umbrella setup, i.e. i don't deal with invoicing myself another company does this for me. I am assuming that if i could go on my own without an agency that either this or a similar umbrella company setup could do this but with needing an agency.
Thanks.
). Anyway:
"The consultancy (me) shall not for a period of six months following the termination of the assignment supply its services directly, or through any other person, firm or company, to any Client for which it has carried out Assignments at any time during the previous six months."
So - does anyone know what i might be letting myself in for if i was to go against that statement and provide a service for a company directly that i have worked for "under" the agency?
As a slightly related question, a guy in the same office as i has gone on the books at the firm we are both currently working for. He was working "under" the same agency as i was and has joined from contract to books seamlessly. I have not heard anything bad yet regarding his circumstance; the difference, however, between him and me is that i would still be contract....
Furthermore, my timesheets are processed using an umbrella setup, i.e. i don't deal with invoicing myself another company does this for me. I am assuming that if i could go on my own without an agency that either this or a similar umbrella company setup could do this but with needing an agency.
Thanks.
So there is an agency AND an umberella company involved? Money is obviously not important to you, so would you like to give me some too? 
Well, if the agency find out they will kick up a fuss. Depending on how good their relationship is with your client they may threaten to a) sue you, b) sue the client, c) threaten to have no further dealings with the client or d) blacklist you.
Since a lot of agencies share their databases then don't underestimate d)
Lock-in clauses are very common, but under the Conduct of Employment Agencies and Business Regulations 2003 which is soon to come into effect they'll become a thing of the past, or at least have their teeth pulled.
It will be interesting to see how that works in practise.
So why do you want to rock the boat and risk Breach of Contract anyway?
Well, if the agency find out they will kick up a fuss. Depending on how good their relationship is with your client they may threaten to a) sue you, b) sue the client, c) threaten to have no further dealings with the client or d) blacklist you.
Since a lot of agencies share their databases then don't underestimate d)
Lock-in clauses are very common, but under the Conduct of Employment Agencies and Business Regulations 2003 which is soon to come into effect they'll become a thing of the past, or at least have their teeth pulled.
It will be interesting to see how that works in practise.
So why do you want to rock the boat and risk Breach of Contract anyway?
Buffalo said:Probably the bit that says something like "if you haven't signed the contract yet but start work anyway then you will be deemed to have agreed to it". If you propose amendments to the contract which they agree to and then you sign that contract then it will supercede the previous (unsigned) one.
I'm guessing i am missing some small print somewhere though...
Also, once your first invoice has been paid then there is an implied contract in force. I'll defer to someone with specific knowledge of contract law to confirm / expand on that.
edc said:I base my theory on the following: When I am actively seeking lots of agencies ring me. When I then get a contract, I start telling the agencies I'm no longer available and the calls dry up very, very quickly - exponentially so. Almost as if word is getting around.
I doubt you'll find many agencies who share their databases! Within the same group perhaps but not between compeitors or any other really.
Likewise if I come up for renewal earlier than expected (has happened twice now) and I tell one or two agencies then word gets around very quickly and I start getting calls from agencies I haven't told yet.
The only conclusion I can draw from this is that they share information in some way.
JonRB said:
I doubt you'll find many agencies who share their databases! Within the same group perhaps but not between compeitors or any other really.
I base my theory on the following: When I am actively seeking lots of agencies ring me. When I then get a contract, I start telling the agencies I'm no longer available and the calls dry up very, very quickly - exponentially so. Almost as if word is getting around.
Likewise if I come up for renewal earlier than expected (has happened twice now) and I tell one or two agencies then word gets around very quickly and I start getting calls from agencies I haven't told yet.
The only conclusion I can draw from this is that they share information in some way.
Having worked agency side, you would be booted for sharing such information. The reason your calls dry up is because you have taken yourself of the market and they can't make any money from you.
If you're getting calls from agencies you haven't told yet then this is them simply doing their job of finding out who's available. They will ring you if your skills are suitable for any hot jobs they have, often regardless of whether you are actually available or not.
Legally you have the right to earn your living in the easiest way possible (know matter who that is working for) the contract is unenforceable)
I run my own agency and have worked in recruitment for 7 years, in that time I have seen and delt with this situation 50 times.
Hope that helps
Sam
I run my own agency and have worked in recruitment for 7 years, in that time I have seen and delt with this situation 50 times.
Hope that helps
Sam
samn01 said:
Legally you have the right to earn your living in the easiest way possible (know matter who that is working for) the contract is unenforceable)
I run my own agency and have worked in recruitment for 7 years, in that time I have seen and delt with this situation 50 times.
Hope that helps
Sam
Entirely agree.
I had excatly the same situation - It's usually called a holding clause and it's not enforceable by law.
As the agency found out who tried to have me and several others on it.
The biggest problem you have in going "direct" outside of an agency is the company you are working for. These days most just want to deal with prefered suppliers and don;t want to upset the agencies so theyt wont let you go direct.
It's also irrelevant whether you've signed it or not as in this country something is not enfoceable whether you have signed it or not if it's not legal. For instance, if I wrote down that it's o.k. for you to kill my wife and I'll sign to say it's o.k., doesn't mean you will not be charged for murder - because obviously murder isn't legal.
However if you want to discuss the wife thing further.....
JC
I thought the Bosman ruleing coverd all this,
free, unrestricted flow of trade within the EU.
Thats certainly the line I used on the HR people at my first job, when they tried to make me sign away my right to join a customer / supplier of theirs for 6 mths post my leaving.
The clause was 'investigated' and then removed.
free, unrestricted flow of trade within the EU.
Thats certainly the line I used on the HR people at my first job, when they tried to make me sign away my right to join a customer / supplier of theirs for 6 mths post my leaving.
The clause was 'investigated' and then removed.
for lots of information on contracting you could do a lot worse than visit The Professional Contractors Group
JamieBeeston said:
I thought the Bosman ruleing coverd all this,
free, unrestricted flow of trade within the EU.
It is. Contracts which state that you can't work for anyone else are unenforceable as they are equivalent to "restriction of trade". The only exception is that you can't join someone else during a formal notice period even if you are put on 'gardening leave' etc as you are still officially employed by the original company.
Such restraints of trade are enforceable provided they are reasonable - usually means up to 2 years, reasonable geographic area for "poaching" customers and agreed.
If you bearch, you can be sued for loss of business from original employer. This is often threatened, seldom enforced, but when it is, it costs !
If you bearch, you can be sued for loss of business from original employer. This is often threatened, seldom enforced, but when it is, it costs !
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