Agency worker works wants to subcontract

[craigap]

We have an agency worker that has worked exclusively for us for over 12months now and I've floated the idea of him coming cards in. The agency said it would be a 20% fee against his earning over a 12month period, equating to a fee of just under £10k.
In the meantime he has expressed an interest in not being employed and would rather be a subcontractor to us. I don't see his status of being a subcontractor as an issue, however the main reason is he wants to do labour only price work as well as some day rate, which is what the majority of our subcontractors work on. However it wouldn't be possible for him to work via the agency as the agency wouldn't get involved in anything fixed price, understandably. Therefore, if he left the agency and worked direct to us as a bonafide subcontractor, would we still be liable for a transfer fee as technically he isn't employed and has the ability to work to any other company as well as ourselves.
Obviously, I wouldn't want to do this in an underhand way as we would still use the agency and have a good relationship with them, but want some idea on our obligation's before speaking to them about it.

 

[Frank the Insurance guy]

You need to check your contract with the agency - it is likely that there sis a clause about you taking on someone that they have introduced.

 

[IanSuth]

Read your contract carefully as many agencies ignore a legally mandated clause

As long as the supply is covered by the Conduct of Employment Agencies and Employment Businesses Regulations then there should be specified option of an extended period of hire at the same rates instead of a fee, if not the entire clause is unenforceable.
And in terms of cooling off periods, 14 weeks from start date or 8 from last day of hire whichever is longer (so 8 weeks from end in your case) is the legally mandated time scale when you are on the hook for a fee.

So once you know either how many weeks you need to additionally have him work for you to get him for free or that because the agency havent got it in their terms you can have him for free ro that he needs to leave for 2 months, you can do your sums and talk to the agency knowing where you stand.

PM me if you want any extra info - i did 27 years as a perm IT recruitment consultant, redid all our terms on several occasions as the law changed using the industry body guidance and even have recruitment qualifications (inc legal side)

The Conduct of Employment Agencies and Employment Businesses Regulations 2003

These Regulations revoke the Conduct of Employment Agencies and Employment Businesses Regulations 1976, the Employment Agencies Act 1973 (Charging Fees to Workers) Regulations 1976 and the Employment Agencies Act 1973 (Charging Fees to Au Pairs) Regulations 1981.

www.legislation.gov.uk

10.—(1) Any term of a contract between an employment business and a hirer which is contingent on a work-seeker taking up employment with the hirer or working for the hirer pursuant to being supplied by another employment business is unenforceable by the employment business in relation to that work-seeker unless the contract provides that instead of a transfer fee the hirer may by notice to the employment business elect for a hire period of such length as is specified in the contract during which the work-seeker will be supplied to the hirer—

(b)in any other case, on terms no less favourable to the hirer than those which applied immediately before the employment business received the notice.

 

[ethical PR]

We have an agency worker that has worked exclusively for us for over 12months now and I've floated the idea of him coming cards in. The agency said it would be a 20% fee against his earning over a 12month period, equating to a fee of just under £10k.
In the meantime he has expressed an interest in not being employed and would rather be a subcontractor to us. I don't see his status of being a subcontractor as an issue, however the main reason is he wants to do labour only price work as well as some day rate, which is what the majority of our subcontractors work on. However it wouldn't be possible for him to work via the agency as the agency wouldn't get involved in anything fixed price, understandably. Therefore, if he left the agency and worked direct to us as a bonafide subcontractor, would we still be liable for a transfer fee as technically he isn't employed and has the ability to work to any other company as well as ourselves.
Obviously, I wouldn't want to do this in an underhand way as we would still use the agency and have a good relationship with them, but want some idea on our obligation's before speaking to them about it.

If he is working for you full time or part time then he will be an employee. It doesn't matter what he prefers. In either case you would need to pay the agency fee.