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Ben Jones
Ben Jones, UK Lawyer
Category: Law
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Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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I have an issue with a company i have left and they have

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Hi Pearl,I have an issue with a company i have left and they have said i am in breach of my contract.The section says following a termination initiated by you you are unable to return to the assignment for a minimum period of 3 months.Is the above legal?RegardsNeil
Assistant: Thank you. Can you provide any more details to help us find you the right Expert?
Customer: Hello
Submitted: 1 year ago.
Category: Law
Expert:  Ben Jones replied 1 year ago.

Hello, my name is***** am a qualified lawyer and it is my pleasure to assist you with your question today.

Expert:  Ben Jones replied 1 year ago.

Can you please provide me with details of the notice period set out within your contract?

Customer: replied 1 year ago.
Can i send you the contract?
Customer: replied 1 year ago.
Hello am i through to someone who can help?
Customer: replied 1 year ago.
hello please make contact
Expert:  Ben Jones replied 1 year ago.

Hi there. Yes I can assist you but I would need some more information. Please can you provide details of the contract when you have a moment.

Customer: replied 1 year ago.
doc attached can you review please?
Customer: replied 1 year ago.
Hi Ben, Basically i have been out of contract since October 2015, and have had a number of issues with them. I have now signed a new contract as an associate commencing form yesterday.
Customer: replied 1 year ago.
Ben are you online i really need some advice please.
Customer: replied 1 year ago.
Ben below my email to the companySteve,
As of today I will no longer be sending time sheets through to SGC, I will be working direct for SLC as an associate from now on. I have been out of contact with SGC since October last year and since then I have experienced a number of issues that has had a negative impact on me personally. There is no need to go into the issues now, I’m sure your aware of my frustrations, but certainly happy to discuss further if you wish to do so? I will be much more comfortable from now on looking after my own affairs, I have tried to call you many times over the past few months and I’m not sure why you haven’t returned any calls to me?
I would like to take this opportunity to say thank you for everything and I’m sure we will cross paths and interface in the near future.
Customer: replied 1 year ago.
Ben there response today:Neil,I assume you will be taking a 3 month break in line with your terms and conditions section 7.3 That you signed when joining us?The section says following a termination initiated by you you are unable to return to the assignment for a minimum period of 3 months. I can speak to Ian to see if they want to pay a finders fee (or you are welcome to pay it yourself) to circumvent this, our standard fee is 12% of the annual value of the package offered.I am more than happy to discuss the issues you have had (I assume you are referring to your ES certificate) and I will be available most of tomorrow day time.
Customer: replied 1 year ago.
You have all the info as requested, thanks Neil
Customer: replied 1 year ago.
Ben can you confirm receipt of information please?
Customer: replied 1 year ago.
Hello are you there?
Expert:  Ben Jones replied 1 year ago.

Hi Neil. Apologies for the delay. Thank you for the information. I am in court today so will prepare my advice during the day and get back to you at the earliest opportunity. There is no need to wait here as you will receive an email when I have responded. Thank you.

Customer: replied 1 year ago.
Ok Ben thanks have got all the information you need?
Customer: replied 1 year ago.
I have sent the contract as an attachment FYI
Expert:  Ben Jones replied 1 year ago.

Thanks I have looked at it. So you say you have been out of contract since Oct 2015? Do they think the contract finished later than that and if so why?

Customer: replied 1 year ago.
that information is in the contact i have sent you (3 page doc). I have still been working through him and getting paid (hes like the agency, middle man) and not a very good one at that! So the company SLC not SGC have drawn up a new contract for me to work direct for them. Hes not happy because he obviously gets commission from supplying me to SLC, hence him making an issue. Im pretty sure i should be ok but require some advise from yourself to cover myself.
Customer: replied 1 year ago.
Contract*
Customer: replied 1 year ago.
ill sign off now, thank you, ***** ***** me know your thoughts. Chat later, regards Neil
Expert:  Ben Jones replied 1 year ago.

thanks I just need to be clear on when the contract was officially terminated and why do they believe you have continued working for the company after Oct 2015? Do you mean that the contract finished but you still continued working for them anyway?

Customer: replied 1 year ago.
In my eyes the contract was terminated October 2015 as per section 2.1 of the contract. I notified him yesterday that as of 15.08.2106 i would no longer be invoicing him (as per emails ive sent you ). Yes the contract date expired and i just continued using them, section 2.2 was not carried out engaging with me?Also its worth mentioning that they are responsible for my competencies and assessments and i have lost 3no rail qualifications (that are hard to get) due to there incompetence, also do not get paid on time and have had no contact from them in months!!
Customer: replied 1 year ago.
In his email he sent to me i dont think he has a leg to stand on saying i cant work for three months and i have to pay finders fee ect!!
Expert:  Ben Jones replied 1 year ago.

ok thanks I will reply fully later today, thank you

Customer: replied 1 year ago.
Hi Ben have you had a chance to review the contract and emails i sent? Thanks Neil
Expert:  Ben Jones replied 1 year ago.

Many thanks for your patience. So from what I understand you have been out of contract since October 2015 in a sense that the initial period as per the terms expired and you had not signed another contract in its place. However, you have carried on working with the company, doing the work and invoicing them. The issue with that is you could be seen to have accepted an implied extension of the original contract through your actions. It is not necessary for a contract to have been drawn up and signed for it to be valid, an implied contract could exist simply through the actions of the parties. Therefore, unless you had started doing something completely different for them or the terms under which you worked had changed significantly then it could well be implied that the initial contract had carried on on its existing terms.

In terms of the restriction in the contract, 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. 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.

So in your case you may have to wait for 8 weeks from the date of formal termination of contract (on the assumption that it had continued under an implied extension because you continued working under its terms). Saying that the only way for the company to challenge this is to go to court, show that the was still a contract in place, that the restriction was reasonable and that it should apply in the circumstances. They may never go that far, they could threaten you all they want but until they make a claim and win, they cannot do anything to you.

I hope this has answered your query. I would be grateful if you could please take a second to leave a positive rating (3, 4 or 5 stars) as that is an important part of our process and recognises the time I have spent assisting you. 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

Customer: replied 1 year ago.
Thanks Ben, so for absolute clarity.1. Am i still bound into the contact that finished October 2015? SLC had chased him for months to get a new contact in place since October last year and nothing happened? There has been no agreement with myself and SGC?
2. I have terminated my contract because of lack of communication, mistreatment and incompetence in managing my required assessments! Is this not negligence?
3. Is 7.3 of the contract legal and enforceable? There is nothing in the contract about finders fees or 12% of my annual package!!Basically Ben i doubt this would go to court and need help on how to respond to his email i sent you ealier, i have a very good reputation for the company im working with and the only problems ive had over the past 2 years are with the company i was contracted to! Its a joke!! please could you assist with the response and its 5 stars for you : ).
Customer: replied 1 year ago.
1. Pay the transfer fee stipulated in the contract. - There is no transfer fee stipulated in the contract?
2. Pay the extended hire fee stipulated in the contract. - There is no 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.Contract attached again FYI.
Expert:  Ben Jones replied 1 year ago.

Hi there, it is indeed possible that the contract is still enforceable because as mentioned even if you had not agreed a new contract with a new end date, the fact that you had continued working on the same terms means that a contract could have been implied in place anyway. So what could have happened is that the same contract continued in place but the end date was changed for the purposes of your working relationship. Only a court can decide if that happened though, but it is certainly a possibility.

What you can try and do is argue that through their recent actions, they have acted in breach of contract themselves and left you with no other option but to terminate the contract. So through their breach they would have automatically put an end to the contract and made it void, taking away with it all its contents, including the restrictions they are trying to rely on. Again, only a court can decide whether their actions were serious enough to justify that but you can still raise it to support your case.

The restriction can potentially be enforceable even without a transfer fee, as mentioned there are maximum periods for which such restrictions can be enforceable anyway so worst case is that it applies and you are prevented from working there for 8 weeks, but again all on the assumption that the company actually goes to court to try and enforce this and wins. Without a court order they cannot do anything

Expert:  Ben Jones replied 1 year ago.

Hello, I see you have read my response to your query. If this has answered your question please take a second to leave a positive rating by selecting 3, 4 or 5 stars from the top of the page. I spend a lot of time and effort answering individual queries and I am not credited for my time until you leave your rating. If you still need further help please get back to me on here and I will assist as best as I can. Many thanks.

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