Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today. are the agency asking for a finders fee
No they are trying to continue to bill through a third party company
OK thank you, XXXXX XXXXX it with me. I need to look up a few things and then get my advice ready. I will post back on here when done. There is no need to wait and you will receive an email when I have responded.
OK thank you
Many thanks for your patience. Employment agencies have traditionally been eager to protect the revenue they get from supplying temporary workers to end user clients. They normally do so by including certain "restrictive covenants" or clauses within their contracts to either prevent a contractor from taking up direct employment with an end user, usually for the duration of the contract plus an extended period after termination, or which imposes a substantial fee if they do. The civil courts have on many occasions deliberated whether such "restrictive covenants" are fair and reasonable and there is still no single definitive answer.
Under UK and EU legislation there have been attempts to allow workers to seek employment wherever they choose, without restriction, thus removing any restraint of trade prohibitions. There are still times, however, when the agency could try and enforce such a restriction and that is when they can show that their legitimate business interests may be affected. There are three areas where the agency might have such interests and these are confidential information, trade secrets and business connections.
It is the last one that would be most relevant where the agency may claim that you are infringing on its business connections by going to work directly with the client, bypassing the agency.
Whilst restrictive covenants are mainly used as a scare tactic by companies, if an employee has acted in breach of a covenant and the employer is intent on pursuing the matter further they can do so. The following are potential outcomes if the employer takes legal action:
As you can see there are no hard and fast rules on restrictive covenants. Whether a specific restriction is enforceable will always depend on the individual circumstances, the interest being protected and whether it has been reasonably drafted. The above principles are what the courts will consider when deciding whether a restriction is going to be legally enforceable. It should give you a good idea of what to look for in your situation and decide what the chances of this being pursued further are.
That states the problem exactly, and it appears that the interpretation of the law is ambiguous. I have sent all parties an email stating that, as I have not been paid by the agency within the 30 days promised in the expired contract (it is now 45 days and counting), I shall consider them in breach of the contract unless I am paid in full by Friday next week.
You may certainly use that non-payment as an argument they have acted in breach of contract and then try to state that the contract then becomes void, taking the restrictions with it at the same time
OK Ben, thanks you for your help.
You are most welcome, all the best
Thank you, XXXXX XXXXX