'I went for an interview for a contract through an agency just over 6 months ago. I was offered the position, but declined in favour of something else. After that other position came to an end I contacted the original client, who said he could possibly use me. The next I heard was a call from the original agency. Do I have to go through them?'
The starting point is that we are all free to do as we choose, except to the extent that there is some legal obligation or restriction preventing us from doing so.
First, we should consider this from your angle. You've also told me that you've never worked through this particular agency before. I've seen the letter you had from the agency telling you the arrangements for the interview some 6 months ago. There's nothing in the letter which would suggest to me that there ever was any form of contractual arrangement between you and the agency, it's just a letter giving appointment details, nothing more than that. So my first conclusion is that there's nothing contractual to prevent you from going direct to this Client, 6 months after you were first introduced to by the agency.
Is there anything else which might prevent you? Might the agency have any grounds for claiming against you for abuse of their confidential information? Essentially, the law of confidence provides that where information which
then the law will protect that confidence.
Putting that into plain English, it means that where someone tells you something which is capable of being a secret (and indeed is a secret), and tells you it's a secret, then you must (1) keep the secret, and (2) not make use of it for your own purposes.
This is not restricted to business secrets - it covers personal ones as well - and the obligations are wholly independent of any contract. Often one encounters 'confidentiality agreements' which appear to be (and legally may be structured as) contracts; nothing wrong with that, no reason not to do so, but unnecessary. The main reason why such documents are prepared is to make expressly clear in writing what the obligations are, and to what information they apply - in other words, to create a greater degree of certainty.
Here, it seems to me that whilst the fact that that particular client may have had a particular need 6 months ago may have been capable of being confidential, you were not expressly told this by the agency at the time; and that, taken alongside the fact that we are now 6 months down the line suggests to me that the agency would have a very uphill struggle in trying to show that by going to the Client now, you were abusing their confidence. So I think you should not have any serious worries about claims from the agency.
Secondly, we need to consider this from the point of view of the Client. Whilst the Client can be treated as 'grownup', capable of taking its own decisions and responsible for the consequences of them, nevertheless those decisions affect the Client's willingness to deal with you. Again, we need to consider the two angles of contract, and confidentiality.
It is possible that the Client might have accepted a contractual obligation to the agency not to engage a contractor who had been introduced by the agency for a period after that introduction. This would clearly be in restraint of trade, and would therefore only be enforceable to the extent that it went no further than reasonably necessary for the protection of a legitimate commercial interest of the agency. The agency's business connection with you (because you had given your details and CV to the agency) could be sufficient to justify such a restriction, provided it was not imposed for a longer period than was reasonable. We do not know whether or not there was such a restriction, let alone how long it might have been for. All I can say is that such a restriction for 3 months might be reasonable; 6 months or longer would probably be unreasonable. So if there is such a restriction, it’s probably not enforceable.
I doubt the Client needs to worry about the law of confidentiality - it was you who contacted the Client, not the other way round. I don’t think that for the Client to contract with you after a fresh approach now made by you could amount to abuse of the agency's confidential information by the Client - even if the agency had told them that your details had initially been provided to them in confidence, they did not have to use that information to contact you, because you yourself contacted them.
Overall, I doubt there's any legal impediment to you and the client dealing direct or through another agency in the circumstances you have outlined to me. But equally, if the Client decides to only deal with you through the agency, that's their privilege. You have the choice whether or not to accept.
5th March 1999
I'd really appreciate your feedback on this FAQ - so mail me and tell me what you think of it, if it's been useful to you, or let me know of any specific problem you have where I may be able to help.
[Return to Roger Sinclair's 'Welcome' page]
No liability is accepted for any inaccuracy in the information in these pages - see full disclaimer
© Roger Sinclair egos@cix. co.uk 1998 - All rights reserved - see full copyright details
The information on these pages is provided free and for information only, and is provided 'as is'. Whilst believed to be correct, it is in no way comprehensive. It is provided for your interest only and is not intended to be relied on as formal legal advice. The posting of information on these pages is not intended to create a lawyer-client relationship, and you should not act or rely on this information without seeking professional advice. No liability is accepted therefore for any errors, or for any losses that may be incurred if it is relied on.
You may read these pages on-line, and download them to read later, for your own personal use.
This copyright notice must appear on every page that you print from here.
You must not redistribute these pages or any part of them in any form or medium without first obtaining my consent.
You are welcome to set up links to this website from others.
[Return to Roger Sinclair's 'Welcome' page]