Employment agency question.

[tom a]

I have been working full time for an employment agency as a hgv driver for the same client.

Recently the client as started to use another agency and work is becoming scarce for my agency.

I enquired about signing on for the new agency but have been told there is a clause in my contract which forbids me working for another agency at the same client base for 8 weeks after termination of my existing contract.

Can anyone advise me if this is allowed?

Thanks in advance.

[Philip23]

You need to look at your copy of the contract to check this - but I'd say this is a usual clause in an employment agency contract. I work in a school and we have contracts with supply agencies, which state that if we take on one of their teachers we have to pay them something like one third of an annual salary.

[Sidewinder]

I think that you need to look very carefully at how that clause is worded. Mant restrictive covenants are not enforceable as they represent a restriction of trade rather than protection of a legitimate business interest (as in your being able to provide information to the competing agency which might allow them to damage the business interests of the original agency)

 

Also, Section 6 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003 states that:-

 

Restriction on detrimental action relating to work-seekers working elsewhere

 

 

6. - (1) Neither an agency nor an employment business may (whether by the inclusion of a term in a contract with a relevant work-seeker or otherwise) -

• (a) subject or threaten to subject a relevant work-seeker to any detriment on the ground that -
   
  
  • 
    
  • (i) the relevant work-seeker has terminated or given notice to terminate any contract between the work-seeker and the agency or employment business, or
     
    (ii) in the case of an employment business, the relevant work-seeker has taken up or proposes to take up employment with any other person; or
    

• (b) require the relevant work-seeker to notify the agency or the employment business, or any person with whom it is connected, of the identity of any future employer of the relevant work-seeker.
   
  (2) For the avoidance of doubt, the following shall not constitute a detriment within the meaning of paragraph (1)(a) -
  
• 
  
  • (a) the loss of any benefits to which the relevant work-seeker might have become entitled had he not terminated the contract;
     
    (b) the recovery of losses incurred by an agency or employment business as a result of the failure of the relevant work-seeker to perform work he has agreed to perform; or
     
    © a requirement in a contract with the agency or employment business for the work-seeker to give a period of notice which is reasonable to terminate the contract.
    
  • 
    
  • (3) In this regulation, "relevant work-seeker" means any work-seeker other than, in the case of an employment business, a work-seeker who is or will be employed by the employment business under a contract of service or apprenticeship.
    

I would take that to apply here, but I bow to the superior knowledge of anybody with more experience of this than I have.

[tom a]

Had a look at my contract and this is the clause that is causing the problem.

 

If, before the first Assignment, during the course of an Assignment or within the Relevant Period the Client wishes to employ the Temporary Worker direct or through another employment business, the Temporary Worker acknowledges that the Employment Business will be entitled either to charge the Client a fee or to agree an extension of the hiring period with the Client at the end of which the Temporary Worker may be engaged directly by the Client or through another employment business without further charge to the Client. In addition the Employment Business will be entitled to charge a fee to the Client if the Client introduces the Temporary Worker to a third party who subsequently engages the Temporary Worker within the Relevant Period.

 

“Relevant Period” means the longer period of either 14 weeks from the 1first day on which the Temporary Worker worked for the Client, or 8 weeks from the day after the Temporary Worker was last supplied by the Employment Business to the Client.

 

Will someone take a look and see if they have got me by the wotsits.

[honeybee13]

I could be wrong here, but this reads to me as if they want a fee if you go to work for one of their clients. Is that what you want to do?

 

HB

[tom a]

Hi HB.

 

I'm looking to transfer over to another agency who appear to be taking over all the work.

[Sidewinder]

Had a look at my contract and this is the clause that is causing the problem.

 

If, before the first Assignment, during the course of an Assignment or within the Relevant Period the Client wishes to employ the Temporary Worker direct or through another employment business, the Temporary Worker acknowledges that the Employment Business will be entitled either to charge the Client a fee or to agree an extension of the hiring period with the Client at the end of which the Temporary Worker may be engaged directly by the Client or through another employment business without further charge to the Client. In addition the Employment Business will be entitled to charge a fee to the Client if the Client introduces the Temporary Worker to a third party who subsequently engages the Temporary Worker within the Relevant Period.

 

“Relevant Period” means the longer period of either 14 weeks from the 1first day on which the Temporary Worker worked for the Client, or 8 weeks from the day after the Temporary Worker was last supplied by the Employment Business to the Client.

 

Will someone take a look and see if they have got me by the wotsits.

 

This surely means that the Agency (employment business) will charge the company you have been working for, either if they choose to take you on as an employee, or if they use your services through another Agency. Either that, or the company you have been driving for must sign an extension to their contract with the current Agency. There is no mention of you being charged personally for this.

 

The condition is valid for the first 14 weeks that you have worked for this company on placement, or 8 weeks after the company ceases using the current Agency and moves to another, whichever is the longer period.

 

So, how long have you been working for the current company?

[tom a]

Cheers Sidewinder.

 

Started work for them on 2nd April 2010. I make that 14 weeks tomorrow.

[Sidewinder]

Then I would read that as being clear to work for that company either directly OR through another Agency with no charge or restriction on any party.

 

Good Luck and hopefully you will soon start getting the hours that you need!

[tom a]

Thanks for your help.

I'll just have to convince the Client and the new agency of this and happy days once again.