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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 45306
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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Good Afternoon I currently have a situation with a client.

Resolved Question:

Good Afternoon
I currently have a situation with a client. Every week our employees get a timesheet signed by them and on the back of the timesheets our are T&Cs. Number 14 states
"If a Client wishes to engage a Temporary Worker on a permanent basis they shall notify the Temporary Employment Business in writing after such notification the Client agrees to hire the Temporary Worker for a further 12 week period and pay Temporary charges for that 12 week period. After such time the Temporary Worker shall become the Clients Employee.
The Temporary Employment Business will then make no future charges to the client. A Temporary Worker having already worked for the Client for however short a period shall be deemed satisfactory and no refund charge will be made"
The issue I have had is with a Client taking on one of my employees straight away without the 12 week temp to perm period. The client in question signs a timesheet every week so it isn't like they aren't aware of our conditions.
After this happened, we sent the client an invoice for the amount of money we would of invoiced for 12 individual weeks when the employee should have been on temp to perm.
The response we got was
"According to our records [clients name] was hiring [employees name] through your company on an irregular basis during 2014. Each hire was a separate contract therefore when the period was complete the contract terminated. [company name] therefore does not accept that we had any obligation to inform you that we were engaging with [employee name] direct. He has never been taken on as a permanent employee of [company name]."
He is currently working for them as they now pay him direct instead of through us.
I was just wondering where I stood with getting my invoice paid for the breach of temp to perm contract.
Many Thanks in advance.
Kind Regards
Chris
Submitted: 1 year ago.
Category: Employment Law
Expert:  Ben Jones replied 1 year ago.
Hello, my name is***** am a solicitor on this site and it is my pleasure to assist you with your question today. Do you deny that each hire was a separate contract?
Customer: replied 1 year ago.
Good Afternoon Ben
I do yes as we supply an employee to a client to do one job, the employee does the same job, driving. Our employee turns up and drives the clients vehicle for the job they need doing on that day.
Expert:  Ben Jones replied 1 year ago.
Thank you for your response. I will review the relevant information and will get back to you as soon as possible. Please do not respond to this message as it will just push your question to the back of the queue and you may experience unnecessary delays. Thank you
Expert:  Ben Jones replied 1 year ago.
Many thanks for your patience. The first issue is whether this person was employed by you at the time when they decided to move to the client. They argue that they were mot your employee and were only employed on short term assignments but this is really something which would depend on what you had agreed with them, how they were treated, etc.
Next, employment agencies, which is what you would be deemed as, 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. The most relevant piece of legislation in this respect is Regulation 10 of The Conduct of Employment Agencies and Employment Businesses Regulations 2003.
Where a temporary contract between an agency and an end user contains provisions to charge fees in a situation where the worker is taken on by the end user, it must now also provide the option of an "extended period of hire" where the end user client continues to pay the agency margin while engaging the worker directly (or through another agency).
Where there are provisions for the payment of a fee and/or an extended hire period, the Regulations state that they are unenforceable beyond 8 weeks from the termination of the contract (or, if longer, 14 weeks from the start of the contract).
So effectively this creates a situation where an end user client who wishes to employ a contractor directly (or transfer the contractor to another agency) will have 3 options:
1. Pay the transfer fee stipulated in the contract.
2. Pay the extended hire fee stipulated in the contract.
3. Terminate the contract (presumably with due notice) and wait for the specified 8 or 14 week period to end.
If the client refuses to do any of these then you could try and pursue them in the civil courts for recover of the debt. As legal action should always be seen as a last resort, there are certain actions that should be taken initially to try and resolve this matter informally and without having to involve the courts. It is recommended that the process follows these steps:
1. Reminder letter – if no reminders have been sent yet, one should be sent first to allow the debtor to voluntarily pay what is due.
2. Letter before action – if informal reminders have been sent but these have been ignored, the debtor must be sent a formal letter asking them to repay the debt, or at least make arrangements for its repayment, within a specified period of time. A reasonable period to demand a response by would be 10 days. They should be advised that if they fail to do contact you in order to resolve this matter, formal legal proceedings will be commenced to recover the debt. This letter serves as a ‘final warning’ and gives the other side the opportunity to resolve this matter without the need for legal action.
3. If they fail to pay or at least make contact to try and resolve this, formal legal proceedings can be initiated. A claim can be commenced online by going to www.moneyclaim.gov.uk. Once the claim form is completed it will be sent to the debtor and they will have a limited time to defend it. If they are aware legal proceedings have commenced it could also prompt them to reconsider their position and perhaps force them to contact you to try and resolve this.
Whatever correspondence is sent, it is always advisable to keep copies and use recorded delivery so that there is proof of delivery and a paper trail. The court may need to refer to these if it gets that far.
I trust this has answered your query. I would be grateful if you could please take a second to leave a positive rating (selecting 3, 4 or 5 starts at the top of the page). If for any reason you are unhappy with my response or if you need me to clarify anything before you go - please get back to me on here and I will assist further as best as I can. Thank you
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 45306
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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