Restriction clause unclear

[flink]

Hi all,

I had a contract through an agency from January to mid December 2014. 6 months later, I now have an opportunity to go direct for the same client.

The old contract had a restriction clause that reads as follows:

The Sub-Contractor shall not for a period of twelve months following the termination of the Assignment supply its services directly, or through any other person, firm or company, to any Client for whom it has carried out the Assignment at any time during the previous six months (save in the case of supply through an employment business or recruitment Sub-Contractor with whom the Sub-Contractor was also registered at the date of commencement of the Assignment).

I am unclear about the exact meaning of the clause. Does it restrict me to go direct for 6, 12 or even 18 months after I finished the initial contract?

Any advice would be greatly appreciated.

[SpontaneousOrder]

Hi all,

I had a contract through an agency from January to mid December 2014. 6 months later, I now have an opportunity to go direct for the same client.

The old contract had a restriction clause that reads as follows:



I am unclear about the exact meaning of the clause. Does it restrict me to go direct for 6, 12 or even 18 months after I finished the initial contract?

Any advice would be greatly appreciated.

12 months after termination, assuming you worked for the client in the 6 months prior to termination. You gotta wait 'till December. Assuming you opted out of agency regs.

[SueEllen]

It's probably not enforceable.....

Have a search for handcuff clauses - (you probably have to go through google)

[SlipTheJab]

Take the contract, how will the agency ever know... you are a long distant memory in the agents eye, 12 month HC after a 6 month assignment is a load of twaddle.

[northernladuk]

Take the contract, how will the agency ever know... you are a long distant memory in the agents eye, 12 month HC after a 6 month assignment is a load of twaddle.

I wouldn't be so sure. Plenty of ways for the agents to find out so not a clever tactic really. 12 months is generally unenforceable in most cases but if caught some period will stick.

If the client want you the handcuff is their problem as they will be aware. They should be making moves to negotiate with the agent or just pay the finders fee.

Don't assume and handcuff won't stick. Make sure the you know the situation and make an judgement call. If they want you perm doing what you are doing it will often be enforceable.

Some posted very recently about the handcuff being the clients problem. Have a search.

[WordIsBond]

Seems like sloppy wording to me.

The Sub-Contractor shall not for a period of twelve months following the termination of the Assignment supply its services directly, or through any other person, firm or company, to any Client for whom it has carried out the Assignment at any time during the previous six months....

What is "the previous six months"? Is it the six months previous to the termination or the previous six months to the point when you start to supply services directly?

Presumably, they meant the former, but that's somewhat meaningless, as obviously you would be carrying out the Assignment for the Client up until the termination of the Assignment. So you could argue that's a nonsensical interpretation of the wording.

But if it is the latter, it renders the 12 months nonsensical. So they obviously intended to say, "At any time during the six months previous to termination." But they didn't say that, the language gives you enough wiggle room, and a 12 month restriction is dubious and probably unenforceable.

When you signed it, did you think you were restricting yourself for 6 or 12 months? I suspect you thought it was 12 months. There's something to be said for sticking by what you agreed to, whether the contract is unclear or not. But if you honestly thought it was six months, you could probably get away with it. You might burn bridges with the agent. And if the agent goes to the client and complains, the whole thing could go pear-shaped on you, they could terminate you and you've burned bridges with them, too.

You could ask the agent to agree a relatively small fee to release you, maybe £1-2k or so. If they don't and you go elsewhere they get nothing, and it's free money for them, they don't have to do any work to get it. You could build it into your rate, maybe even explain to the client why you've done it -- it will still be cheaper for the client direct than through the agency.

You've been away for six months, it would be hard for the agent to make a case they deserve a big cut. If you settle it with them it is a win-win-win. They get a little money without doing any work, you are free of any hassles, and you and the client both probably do better financially than with the agency in the middle.

Legally, you might get away with going back now, but from a business (and business relationships) perspective, you might be a lot better off just negotiating a deal.

But I'd negotiate hard, you are in a position of strength, because you can always walk away leaving the agency with nothing. I'd give them a deadline of a few days to agree, set an amount in your mind you'd be willing to agree, and then offer them 50-60% of your limit (so you have room to be the nice guy and give them more if needed). I'd tell them you need a quick agreement because you have to pursue other opportunities if they aren't going to be reasonable.

[TheFaQQer]

Assuming you opted out of agency regs.

That's the important bit - if you didn't opt out correctly, then the clause is irrelevant.

So check the opt out status, and then ignore the clause and take the contract.

[northernladuk]

Oh I mis-read the post. The Op has already been away 6 months and this a new offer. **** that then. Just take it and don't worry. 6 months is more than reasonable.

[tractor]

....

And if the OP did not opt out, the following applies...

(4) Any term of a contract between an employment business and a hirer which is contingent on any of the following events, namely a work-seeker—

(a) taking up employment with the hirer;.

(b) taking up employment with any person (other than the hirer) to whom the hirer has introduced him; or.

(c) working for the hirer pursuant to being supplied by another employment business,

is unenforceable by the employment business in relation to the event concerned where the work-seeker begins such employment or begins working for the hirer pursuant to being supplied by another employment business, as the case may be, after the end of the relevant period.

(5) In paragraph (4), “the relevant period” means whichever of the following periods ends later, namely—

(a) the period of 8 weeks commencing on the day after the day on which the work-seeker last worked for the hirer pursuant to being supplied by the employment business; or

(b) subject to paragraph (6), the period of 14 weeks commencing on the first day on which the work-seeker worked for the hirer pursuant to the supply of that work-seeker to that hirer by the employment business.