Joining the end client directly

[Zsat01]

Hi All

I took a contract last year with an agency for Company A. This company A had an end client and a contract where I've been placed.

After 5 months the end client cancelled the Company A contract because of several reasons ( There are few contractors and permanent employees from Company A placed in this project )

The end client wanted to hire me as they are happy with my work and the Company A have no issues with it.

( I'll be using a different agency as suggested by the end client )

This is the restriction in my contract ( opt out )

The Consultancy shall not and shall procure that the Consultancy Staff shall not for a period of 12
months following the termination of the Assignment supply the services of the Consultancy Staff
directly, or through any other person, firm or company, to any Client for whom it has carried out the
Assignment at any time during the previous 12 months save in the case of supply through an
Employment Business or recruitment consultancy with whom the Consultancy was also registered
at the date of commencement of the Assignment.

Will the agency be able to stop me from joining the end client ? Please let me know

[Lance]

Hi All

I took a contract last year with an agency for Company A. This company A had an end client and a contract where I've been placed.

After 5 months the end client cancelled the Company A contract because of several reasons ( There are few contractors and permanent employees from Company A placed in this project )

The end client wanted to hire me as they are happy with my work and the Company A have no issues with it.

( I'll be using a different agency as suggested by the end client )

This is the restriction in my contract ( opt out )

The Consultancy shall not and shall procure that the Consultancy Staff shall not for a period of 12
months following the termination of the Assignment supply the services of the Consultancy Staff
directly, or through any other person, firm or company, to any Client for whom it has carried out the
Assignment at any time during the previous 12 months save in the case of supply through an
Employment Business or recruitment consultancy with whom the Consultancy was also registered
at the date of commencement of the Assignment.

Will the agency be able to stop me from joining the end client ? Please let me know

Difficult to say. For a start 12 months is generally considered to be too long to be enforceable. But that's up to a judge.

Secondly. The phrase "any Client for whom it has carried out the Assignment " is not entirely clear. The client is Company A, not the end client, but the clause is vague. Read the whole contract to understand what 'any Client' means. There are likely some definitions near the top. If Client is just Company A then you're free to fill your boots.

Thirdly. Could the agency prove you were at the end client anyway? No evidence = no case.

[Zsat01]

Difficult to say. For a start 12 months is generally considered to be too long to be enforceable. But that's up to a judge.

Secondly. The phrase "any Client for whom it has carried out the Assignment " is not entirely clear. The client is Company A, not the end client, but the clause is vague. Read the whole contract to understand what 'any Client' means. There are likely some definitions near the top. If Client is just Company A then you're free to fill your boots.

Thirdly. Could the agency prove you were at the end client anyway? No evidence = no case.

Thank you.

This is the definition of client

means the person, firm or corporate body together with
any subsidiary or associated person, firm or corporate
body (as the case may be) requiring the services of the
Consultancy and identified in the attached Schedule;

[Lance]

Thank you.

This is the definition of client

means the person, firm or corporate body together with
any subsidiary or associated person, firm or corporate
body (as the case may be) requiring the services of the
Consultancy and identified in the attached Schedule;

is the end client identified in the 'attached Schedule' or just Company A? If the former then you're free. Just be cautious about them finding out, and don't be updating LinkedIn for a while.

[Hobosapien]

If the agency is only in contact with company A and not the end client then unless someone blabs then the risk of agency finding out you have potentially broken the terms of the contract with them and the likelyhood of them taking any actual action is less than if the agency have visibility of what is going on at the end client.

Assess the risk and decide if you can live with it. Worse case agency finds out and wants some compo.

The obvious way of mitigating this is to use the agency for the new contract instead of some other agency. If that appeals (i.e. the agency you are currently with have been ok and the new agency is a bit of an unknown, especially in terms of how well they keep to the payment schedule) then discuss with the end client if they would be happy with that and not their suggested agency. They may have preferred suppliers so won't entertain you using the current agency if not on their list, no harm discussing it with them to suss them out though.

I'm wondering if anyone on CUK has ever done this and been caught by the agency and it's gone to court or settled beforehand?

[fool]

If the agency is only in contact with company A and not the end client then unless someone blabs then the risk of agency finding out you have potentially broken the terms of the contract with them and the likelyhood of them taking any actual action is less than if the agency have visibility of what is going on at the end client.

Assess the risk and decide if you can live with it. Worse case agency finds out and wants some compo.

The obvious way of mitigating this is to use the agency for the new contract instead of some other agency. If that appeals (i.e. the agency you are currently with have been ok and the new agency is a bit of an unknown, especially in terms of how well they keep to the payment schedule) then discuss with the end client if they would be happy with that and not their suggested agency. They may have preferred suppliers so won't entertain you using the current agency if not on their list, no harm discussing it with them to suss them out though.

I'm wondering if anyone on CUK has ever done this and been caught by the agency and it's gone to court or settled beforehand?

I've done it*, and seen it done. Not usually a legal matter. Few key points to remember:-

• Agency would have to demonstrate a loss; they can't do this if the end client won't hire them.
• I suppose they could argue the contractor convinced the end client to not consider the agent, but the contractor suggests it was the clients idea / decision. They would need to evidence this.
• Unless they're on an insane margin, the loss they could likely demonstrate would probably not be worth the legal fees. Thus, they're unlikely to follow up on their bitching.

If you let the agent know before hand, there will likely be a lot of wailing, but it shouldn't really be a legal problem. Now the end client will likely have clauses that are more enforcable, but they're unlikely to be with the agency and not really the contractors problem.

IANAL; Internet advice is usually worth what you pay for it.

* Typically people want to cut agents and go direct for their margin. I negotiate well, and don't usually consider the the gain of a couple of quid to be worth the loss of an agent structure such as timesheets, somebody to bitch to who can sweet talk the client, invoice factoring, etc. It's suppose it's possible doing this could result in some legal trouble if you don't tell them and when you do it generally causes a lot of bitching and you can lose the contract over it if local managment aren't willing / can't step in.

I was moved because finance wanted to cut down a specific agent/consultancy, and I had managment square it with the agency for me. The agency wouldn't have been able to supply me either way, and arguing about it wouldn't be worth it as they did have other staff on-site and they couldn't really stop me anyhow.

I suppose I could understand wanting to cut an agent because they're horrible, but I've yet to experience an actual horrible agent yet. You'd need to consider whether your concerns are legitimate, or not. Usually when I hear people bitching about agents, they're fine with/for me.

[Lance]

Ditto to what fool says. All agents I’ve ever been with have been pleasant enough, and sometimes competent as well. They’re only trying to make a living.
I’d not be rocking the boat to ditch an agency unless it needed to be done.

[fool]

Ditto to what fool says. All agents I’ve ever been with have been pleasant enough, and sometimes competent as well. They’re only trying to make a living.
I’d not be rocking the boat to ditch an agency unless it needed to be done.

Funnily enough, the few times I've went direct were all horrible experiences. Between client cashflow issues, frankly terrible people and client side jealously (the rate you get paid is obvious when there's no middle man), I've figured going direct is arguably not all it's cracked up to be.

A good agent however, will be able to tell a client that there aren't many resources like you on the market, what your market rate is, and why they should pay you the extra £50 you're demanding.

Similarly, they should be able to tell you the lay of the land, what they think market rate is, how easy it is to find people with your skillset, what the clients rate bandings are, how long they've been trying to place a specific position, and basically help you figure out what your levergage is.

I earn above market rate (braggy, sorry), and it's partly thanks for wideboy recruiters who helped me understand the market and their backend* staff who deal with the pointy end of the negotiations.

If you're good and you ask for top of or slightly higher than market rate, the agents who don't or can't negotiate self select themselves out of the running, so you don't need to deal with them.

* Reasonbly sized agents usually have a client facing seller, a candidate finder, and the invoicing/accounts team. You need both the candidate finder and the client facing seller to be willing to push. Obviously this is all mute is you're junior or you're in a saturated market.

This post is more for the lurkers than Lance. Lance seems to do perfectly well based on his other postings. This is also fairly off-topic.

[Zsat01]

Funnily enough, the few times I've went direct were all horrible experiences. Between client cashflow issues, frankly terrible people and client side jealously (the rate you get paid is obvious when there's no middle man), I've figured going direct is arguably not all it's cracked up to be.

A good agent however, will be able to tell a client that there aren't many resources like you on the market, what your market rate is, and why they should pay you the extra £50 you're demanding.

Similarly, they should be able to tell you the lay of the land, what they think market rate is, how easy it is to find people with your skillset, what the clients rate bandings are, how long they've been trying to place a specific position, and basically help you figure out what your levergage is.

I earn above market rate (braggy, sorry), and it's partly thanks for wideboy recruiters who helped me understand the market and their backend* staff who deal with the pointy end of the negotiations.

If you're good and you ask for top of or slightly higher than market rate, the agents who don't or can't negotiate self select themselves out of the running, so you don't need to deal with them.

* Reasonbly sized agents usually have a client facing seller, a candidate finder, and the invoicing/accounts team. You need both the candidate finder and the client facing seller to be willing to push. Obviously this is all mute is you're junior or you're in a saturated market.

This post is more for the lurkers than Lance. Lance seems to do perfectly well based on his other postings. This is also fairly off-topic.

Thanks everyone, it is very helpful.

I think in my case the agency will struggle to demonstrate there is a loss, so I'm going to go for it.

Has anyone successfully removed the restriction clause when signing a contract ? I think that will be the best thing to do in future contracts.

[Zsat01]

is the end client identified in the 'attached Schedule' or just Company A? If the former then you're free. Just be cautious about them finding out, and don't be updating LinkedIn for a while.

In the schedule under the client name, it says Company A. But there is a field called consultancy services and here the it says the project is for the end client. The address of the client is wrong from day one, refers to a different city.