OT : Any HR lawyers about

gtvlusso

I am looking to leave the company I work for:

1, Underpaid for my role by approx £20k (FACT!)
2, No pay increases in last 5 years - no matter what performance appraisal given (always 4 - the top mark)
3, Healthcare plan has been changed and is no effectively unusable and not a benefit
4, More emphasis on reporting than sorting out problems
5, Bonus schema has been changed to save money....and pay allot less, again.

The list goes on.

Anyway, the place sucks and after being promised Grade and pay increases and relocation's to match my responsibility and bring me inline with my level colleagues - FA has happened. They are even removing every third light from the ceiling light clusters.....It really is that sh1t.

I have spoken to an external recruitment agency that had a job matching my skills and expectation - I work in a niche industry; however, they are unable to process my application because they have a contract with my current employer, which states that they cannot head hunt from my current employer. So, I checked on the website and applied as a free act as opposed to being head hunted. however, the agency have said that they really don't want to breach their contract with my current employer.

As you can probably tell, this has bloody well annoyed me. I believe I have the freedom to pick and choose my work. I am not under a confidentiality contract and have no contractual obligation to not work in the same industry on leaving my current employer - There would be no conflict of interest.

So, what gives?! As far as I am concerned, I can apply for what I want when I want.

paulg99

This is not really about your current employers. If the agency decide that they do not want to find you a job regardless of any 'contract' they may have with your employer, then there is FA you can do about it AFAIK.

Your company aren't applying a restraint of trade on you, nor are they stopping you from approaching any agencies, so yes you can apply for what you want, but you cannot force the agency to do this for you.

gtvlusso

The agency have a contract with my employer to supply personnel, written into that is a clause that they will not poach from my employer - hence they are unwilling to pass on my CV.

So, as I understand it - No, I cannot force them to do something. However, it is looking as though my employer is restraining my ability to move on without my consent, quite considerably as this is one of the biggest agencies in my industry.

Apparently, I they will pass on my CV if I have my line managers authority.....WTF?! :shock:

BigLights

I'm not a lawyer, but I am a seasoned senior headhunter. A search firm will normally be 'off limits' to a client, ie you can't take their staff, which is not unreasonable I think. It does sound like they're being obstructive though - can't you just apply for the job directly with the new employer?

sketchley

Did they tell you which company the job was for. As the agency has refused to put you forward, I do not think there is any reason why you cannot go direct now. If you have it in writing (email) that they are refusing to put you forward they would not even be able to claim a fee from the company should you get the job. You would also be in a good postion re salary cost as no agency fee. If you know the company phone there HR dpearment and be upfront about what has happended.

gtvlusso

BigLights wrote:

I'm not a lawyer, but I am a seasoned senior headhunter. A search firm will normally be 'off limits' to a client, ie you can't take their staff, which is not unreasonable I think. It does sound like they're being obstructive though - can't you just apply for the job directly with the new employer?

Won't tell me who the third party is.......

I don't mind the idea of the contract between my employer and an agency, that's fine. But I think that this external contract being restrictive to the 5,000 staff that we have in the UK without their knowledge is kind of sh1t.....

cookdn

Sorry to hear you are in a situation with an employer that sucks so badly.

In summary is this correct? You work in a niche industry where many roles are filled through a single specialist recruitment agency. However because that recruitment agency is contracted to your current employer they do not want to place you into a new role with a new employer because they are concerned that it will negatively impact that relationship?

IANAL but surely this isn't the first time that such a conflict of interest has arisen for this agency with prospective candidates? However I wouldn't be shocked if there is an understanding between your current employer and the agency, contractual or not, that they do not take current employees as candidates. The question whether such an understanding between the agency and your employer is legally enforceable is moot, I guess you cannot compel the agency to help you.

In my experience recruitment agencies suck badly, but I have only had experience as an employer where we were using them to fill a vacant role. On both occasions we were let down badly by the agencies and filled both roles ourselves with good quality candidates at much lower cost.

This sounds like rock and hard place. With your industry being niche is there anything preventing you from approaching other potential employers direct on a speculative basis? Are there any networking opportunities where you can learn of vacant roles and spread the word that you are looking around?

Best regards

sketchley

Also one course of action you have, (if you have big enough balls) is to confront your boss ideally with HR present about all the issue you have, ask them to respond in writing. Be polite and don't blackmail them with threats to leave. When and if they fail to do this to your statisfaction explain to them you are now demotivated and do not see any alternatvie but to seak alterative employment. Inform them that you hope you can leave on good terms and you leaving can be managed in way that ensures minimum impact to the company. What you would be looking for is things like time off for interviews, permission to apply via this agency that kind of thing, what you are offering is a smoth handover to a replacement on an agreed timescal, rather than 30day notice and quick exit leaving them in the shit. As above to this you need big balls and confidence in finding another job.

walkingbootweather

What would Peter Odemwingie have done? That's probably not the way to go.

More seriously if it's a niche industry you probably know most of the employers and may well know employees of these organisations. I'd be inclined to make use of contacts and send out speculative CVs.

tailwindhome

IANAL.

I don't see that the agency are doing anything illegal or even unfair here.

Are you sure that this agency has exclusivity for this new role? Might be worth searching. In my experience agencies are very good at sniffing out vacancies in the market and circle like hungry sharks round any job...

tailwindhome

*paging Rick Chasey to the thread.

gtvlusso

TailWindHome wrote:

IANAL.

I don't see that the agency are doing anything illegal or even unfair here.

Are you sure that this agency has exclusivity for this new role? Might be worth searching. In my experience agencies are very good at sniffing out vacancies in the market and circle like hungry sharks round any job...

No, I don't think the agency is doing anything illegal or unfair, but I think that my employer is doing something unfair and possibly illegal.....

The agency are just being unhelpful.

dhope

Apply under a fake name (/have a friend apply). Get to the point where you have your first interview lined up, then go quiet. You now know who the employer is. Apply directly with the employer...

sketchley

gtvlusso wrote:

No, I don't think the agency is doing anything illegal or unfair, but I think that my employer is doing something unfair and possibly illegal.....

What exactly do you think they are doing? Breach of contract? Discrimination?

If either of these two you are probably thinking constructive dismissal. Be aware this is very hard to prove. You have to of been there two years to stat with (you can get way with 1 year but 2 is better), there has to be breach of contract or change in working conditons not in line with you contract or job discription or some evidence of discrimination (other people getting pay raise might cut if you can prove it). Spottnig the breach is the easy bit, you then have to raise a formal grievence about this and give the company every possible opportunity to correct it, most importantly you need ot do this in timely manner so you cannot bring thnigs up that happen some time ago. You need to rasie the greivance about something very recent. What's more if you didn't riase a greivence at the time and have continued to work under the new arrangement you have tacitly accepted them aleady and there is little or nothing you can do regarless of what you contract or job discription says. Simply put you have to object at the time. If you go through the greivence procedures, then an appeal and still do not get anywhere, or they fail to follow thier procedures for handling the grievance (by this I mean they ignore the grievance, rather than a not follow procedure on a technicallity) then you need to resign on the spot explaining the reasons way, constructive dismissal breach of contract, discrimination, loss of faith in directories, etc etc. Then you would need to start procedings at an Employement Tribuneral, ACAS will get involved and you will no doubt settle as it'll cost them at least £15k to defend the action at ET with lawyer cost etc (unless they have them on retainer already). They cannot pursue for cost providing your claim is genuine (i.e. there is a case to answer), so don't be put off when and if they threaten this which they normally do.

None of the above is easy, so if you are really upset and determined to leave, right it all down and call a meeting with HR or HR and your boss together, lay it all out there and see what they say. Worst case they fire you or make life very difficult for you for riasing the issue, if they do then it would only strengthen a constructive or unfair dismissal claim. Other than that they reject could everything you say and you are ni same position as you are now or you might just end up with something out of it.

tgotb

What's your employer doing that's illegal? There's no law against paying you less than your worth, and as far as I can see they're not doing anything to prevent you moving on. The only people making it difficult for you to move on are the agency, and as others have said they're within their rights; their relationship with your employer is more valuable than their relationship with you.
An approach that often works (though you may already have tried this) is to sit down with your manager and explain that you know you're underpaid; you'd rather not have to look elsewhere, but you owe it to your family (if you have one) to earn what you're worth. Can they do anything to get you back up to market rate so that you won't have to look elsewhere? That way you're being honest and professional, giving them every chance to rectify the situation, but nevertheless making it clear that you're prepared to move if that's what it takes to get a fair rate.

Regarding the other role; if you're in a niche industry, is there any way to guess who the employer may be? They may well have the role advertised on their own website...

clarkey cat

if its anything its uncompetitive behaviour

gtvlusso

Whoa guys!!!!

I think you have missed the point/misunderstood!!!!

This is about an external recruitment agency refusing to forward my CV on to a potential employer because the recruitment agency has a contract to recruit for my current employer.

My beef is really around restraint of trade. I.e. my current employer has effectively limited my options to utilise a big recruitment agency by enforcing a term in a contract that they have with the agency - the agency will not 'head hunt' from my current employer.

I thought I could get around this by applying directly for the role, however, the agency says that this is still against the contract. Basically, I am unable to use this agency to find a new job.

This is not about my job within my current employer - there is not much I can do about crap pay and conditions (although comparatively in the UK my salary is quite high)......except leave!

vermin

I can't see what anyone has done wrong. I you're working in a niche industry, before starting any employment-related legal actions, make sure you have decided in which industry you wish to pursue your next career.

gtvlusso

The issue is not my actual job. The issue is with regard to using a recruitment agency, that I am restricted from using by my employer - I don't think it is fair that my employer can restrict the use of a prominent agency in my industry if it's staff want to leave and I was not sure if it was legally enforceable.

Basically, I am unable to use this external recruitment agency to find a new job, because my current employer has a contract with them that restricts head hunting within my employer. The agency will not even accept a direct application from me.

My job is not the issue here; I have been up for promotion and sorting out the issues for over a year and nothing has changed - I have been made promises that come to nothing. Therefore, I am out of here and now find that I am restricted on getting out! :shock:

veronese68

If it's that much of a niche can you not narrow down who it might be and apply direct? Presumably some basic information about location would narrow it down.
I work in a niche area and there are only 2 other companies I could work for at this level. Neither of whom I would want to work for.

gtvlusso

Yeah - I am applying direct to a few places. One place I went to for an interview, man, it was twice as bad as where I am now - it really sucked balls!

Unfortunately, allot does come through agencies. But I guess my google foo will have to come into play.

clarkey cat

gtvlusso wrote:

The issue is not my actual job. The issue is with regard to using a recruitment agency, that I am restricted from using by my employer - I don't think it is fair that my employer can restrict the use of a prominent agency in my industry if it's staff want to leave and I was not sure if it was legally enforceable.

Basically, I am unable to use this external recruitment agency to find a new job, because my current employer has a contract with them that restricts head hunting within my employer. The agency will not even accept a direct application from me.

My job is not the issue here; I have been up for promotion and sorting out the issues for over a year and nothing has changed - I have been made promises that come to nothing. Therefore, I am out of here and now find that I am restricted on getting out! :shock:

Your issue is that you have no way of knowing if the terms of the exclusivity clause are anti-competitive and even if they were you'd have no way of seeing them struck out. You're on a hiding to nothing on this one sorry to say gtvlusso.

sketchley

You can apply for the job directly if you know who they are, unless the agency have an exclusive agreement with the new company to screen all candidate regardless of how they apply that is. Even then as you approached the company and not the agency the agency has not head hunted you so would not be in breach. I don't think anyone is breaking the law here, you employer is not restricting your trade and they are not preventing you from working at the new company. They telling a supplier that they cannot head hunt you, very different, although net effect may be view the same.

If I were you I'd phone the agency back and politely ask them that as you contacted them and not the other way round how can they be headhunting you and therefor in breach of contract? They may be reluctant to proceed though. I'd also ask them what would happen if you handed in your notice at your current employer, would they put you forward then? If they say yes, then wait a day and tell them that you have done exactly that and are now working notice. I doubt very much they will ask to see proof of this as an email from you saying you have done it would be enough to protect them from claims of being in breach of contract through headhunting.

gtvlusso

clarkey cat wrote:

gtvlusso wrote:

The issue is not my actual job. The issue is with regard to using a recruitment agency, that I am restricted from using by my employer - I don't think it is fair that my employer can restrict the use of a prominent agency in my industry if it's staff want to leave and I was not sure if it was legally enforceable.

Basically, I am unable to use this external recruitment agency to find a new job, because my current employer has a contract with them that restricts head hunting within my employer. The agency will not even accept a direct application from me.

My job is not the issue here; I have been up for promotion and sorting out the issues for over a year and nothing has changed - I have been made promises that come to nothing. Therefore, I am out of here and now find that I am restricted on getting out! :shock:

Your issue is that you have no way of knowing if the terms of the exclusivity clause are anti-competitive and even if they were you'd have no way of seeing them struck out. You're on a hiding to nothing on this one sorry to say gtvlusso.

I think your right dude. Just a f*cking pain in the ar5e! The agency even said that they would put me forward as long as I had the permission of my line manager......yeah, right, like thats gonna happen!

gtvlusso

Sketchley wrote:

If I were you I'd phone the agency back and politely ask them that as you contacted them and not the other way round how can they be headhunting you and therefor in breach of contract? They may be reluctant to proceed though. I'd also ask them what would happen if you handed in your notice at your current employer, would they put you forward then? If they say yes, then wait a day and tell them that you have done exactly that and are now working notice. I doubt very much they will ask to see proof of this as an email from you saying you have done it would be enough to protect them from claims of being in breach of contract through headhunting.

Yerssss...I did try this one on. The 'I applied.....' as opposed to the 'you phoned me....' - It did not wash though.

The notice idea is a good one though, I like that......will think on it.

Thanks fella.

vermin

gtvlusso wrote:

The agency even said that they would put me forward as long as I had the permission of my line manager......yeah, right, like thats gonna happen!

Ha, that conversation's going to go about as well as the little chat in the West Brom changing room this morning!

clarkey cat

If I were you I'd phone the agency back and politely ask them that as you contacted them and not the other way round how can they be headhunting you and therefor in breach of contract?

They wont take a loose and fast interpretation of their exclusivity restrictions for the sake of one candidate, as excellent as I'm sure he is.

davmaggs

I'd say that you are getting hung up on this agency. First of all the best they are going to do is "put you forward", it's not liked there's a guaranteed job that you are being blocked from. Contracts like this are standard in all sorts of ways, so you aren't going to win this one.

Secondly, you do not matter to that agency and you do not matter to your employer. Think up all the legalese you want, their business relationship and the earnings between them outweighs any one off commission they'd make from placing you elsewhere so they won't do it.

As for involving HR you'd have to be insane. They aren't there to help staff (despite what nonsense they spout), they are there purely to protect the business.

It sounds like you've left the job already (in your head), so focus on finding some else rather than burning time on trying to fight contract law.

rjsterry

If it is a niche industry, there can't be that many options as to who the mystery employer is. Can you not approach all of them?

BTW, if they are removing light bulbs, get the hell out of there.

gtvlusso

To be fair; my boss is one of the good guys.

He knows the score and he knows what has happened, his hands were tied by HR. No matter what direction he has pushed; quite simply HR have said no. There is the possibility of a final discussion in April.....But ultimately, If I am to manage ~60 people and 4 team leaders, then I cannot be on a lower job grade than some of my team leaders...right?! And get great appraisals from my piers....the maths does not add up. My salary is higher than my team leaders, but only by a small margin and I have lower benefits than a couple of them...the place is wonky and f*cked!

Simply working too many hours and taking too much responsibility for this level of pay in the first instance.

Hence on here allot....but I will be working with America tonight and this weekend. :roll:

dhope

I'm not sure there's any restraint of trade. The job you want to apply for are just as guilty for using a recruiter - in that your potential new employer are restricting your ability to get a new job by using someone that refuse to poach you from your current role.
Grab a PAYG phone, get an interview under a new name, find out the employer's details that way. Or as was said before, is there any way to guess who the new employer might be? Same job advertised using the same wording on a few sites etc?

Edit: Whoops, missed the last half a page of replies. Must refresh first.