Hello,
I have read the forums a fair bit and have a decent understanding of the relevant issues but still feel there are enough unique specifics to my case to raise my own thread. My apologies in advance if I've missed anything similar. Also, I'm aware that if this goes much further I'll have to get some proper legal advice... any recommendations of reliable solicitors would be appreciated.
So, I've been contracted to a client through an agency for 3 years (an initial contract and a number of renewals). All of the contracts I've signed say I'm opted-out (and have a 6 month non-solicitation clause that only applies if opted-out) but I never signed any documentation (as either the LTD or the contractor) to say I opted-out. The contract was signed after the introduction but before the supply.
After my last renewal (June 2017) I informed the client that it would likely be my last renewal as I felt I was becoming too ingrained into their business and I couldn't allow this to continue (due to IR35 risk). This led to a new venture between myself and their Head of Systems where we would form a new company taking over the responsibility for all of the client's systems development, selling services back to the client, initially the two of us but eventually recruiting our own staff. Previously I was in the role of developer and whilst I now still do some development, my time is also taken up a lot more by management of the development process. Our services are sold back to the client collectively, so we simply charge them for total hours of "systems specification, development and support", rather than having individual roles at a day rate.
We launched this venture in December 2017, at the same time as my contract through the agency expired. The client asked me to leave communication with the agent to them and assured me there wouldn't be any problems. They didn't actually get round to informing the agent of what was happening until the beginning of January 2018 however. At this time he still hadn't paid my final month's invoice (due to delays from the client).
I had assumed that there would be some sort of quarantine period and transfer fee to be paid by the client to the agency (as did the agent). It transpires though that whilst there had originally been a transfer fee in the original contract, the agent had signed away the right in subsequent renewals (as the client refuse to pay transfer fees after a contractor has been with them for what they class a reasonable period of time). Therefore the client aren't planning to pay the agent a penny.
Then last Friday the agent gets in touch with me, accusing me of breaching my contract and stating that he is trying to get a transfer fee of 6 months of money out of the client but if he fails to get it from them he expects it from me. He also states that he's holding back the payment of my final invoice as a downpayment against the amount he alleges I owe.
The agent has had multiple contracts with the client over the years but the final one finished last Friday so now he has no contractors with the client. The client are backing me 100% and have agreed to take no further contractors from the agency and in addition have decided to hold back the final unpaid invoice amounts for the other contractor through that agent until the issue is resolved.
As I see it whilst there is a clause in my contract to prevent me engaging with the client separately (despite the flakey opt-out) there is no actual financial loss to the agent as my new relationship with the client is substantially different from that I had before and it would not have been offered to the agent to recruit for. On top of that I would not have continued in my old role past the end of the contract.
On top of that, I hardly see that he can contractually agree with the client to allow me to transfer without a fee and then trying to pass a fee onto me. Surely he has breached his contract with the client by attempting to extract money from me for the transfer?
Sorry for the rambling post and thanks in advance for any useful replies!
I have read the forums a fair bit and have a decent understanding of the relevant issues but still feel there are enough unique specifics to my case to raise my own thread. My apologies in advance if I've missed anything similar. Also, I'm aware that if this goes much further I'll have to get some proper legal advice... any recommendations of reliable solicitors would be appreciated.
So, I've been contracted to a client through an agency for 3 years (an initial contract and a number of renewals). All of the contracts I've signed say I'm opted-out (and have a 6 month non-solicitation clause that only applies if opted-out) but I never signed any documentation (as either the LTD or the contractor) to say I opted-out. The contract was signed after the introduction but before the supply.
After my last renewal (June 2017) I informed the client that it would likely be my last renewal as I felt I was becoming too ingrained into their business and I couldn't allow this to continue (due to IR35 risk). This led to a new venture between myself and their Head of Systems where we would form a new company taking over the responsibility for all of the client's systems development, selling services back to the client, initially the two of us but eventually recruiting our own staff. Previously I was in the role of developer and whilst I now still do some development, my time is also taken up a lot more by management of the development process. Our services are sold back to the client collectively, so we simply charge them for total hours of "systems specification, development and support", rather than having individual roles at a day rate.
We launched this venture in December 2017, at the same time as my contract through the agency expired. The client asked me to leave communication with the agent to them and assured me there wouldn't be any problems. They didn't actually get round to informing the agent of what was happening until the beginning of January 2018 however. At this time he still hadn't paid my final month's invoice (due to delays from the client).
I had assumed that there would be some sort of quarantine period and transfer fee to be paid by the client to the agency (as did the agent). It transpires though that whilst there had originally been a transfer fee in the original contract, the agent had signed away the right in subsequent renewals (as the client refuse to pay transfer fees after a contractor has been with them for what they class a reasonable period of time). Therefore the client aren't planning to pay the agent a penny.
Then last Friday the agent gets in touch with me, accusing me of breaching my contract and stating that he is trying to get a transfer fee of 6 months of money out of the client but if he fails to get it from them he expects it from me. He also states that he's holding back the payment of my final invoice as a downpayment against the amount he alleges I owe.
The agent has had multiple contracts with the client over the years but the final one finished last Friday so now he has no contractors with the client. The client are backing me 100% and have agreed to take no further contractors from the agency and in addition have decided to hold back the final unpaid invoice amounts for the other contractor through that agent until the issue is resolved.
As I see it whilst there is a clause in my contract to prevent me engaging with the client separately (despite the flakey opt-out) there is no actual financial loss to the agent as my new relationship with the client is substantially different from that I had before and it would not have been offered to the agent to recruit for. On top of that I would not have continued in my old role past the end of the contract.
On top of that, I hardly see that he can contractually agree with the client to allow me to transfer without a fee and then trying to pass a fee onto me. Surely he has breached his contract with the client by attempting to extract money from me for the transfer?
Sorry for the rambling post and thanks in advance for any useful replies!
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