Help! Perm to Contracting - Moving from Consulting firm to the firms client?!

[sickofpermie]

...

[jmo21]

In short I work for a consultancy as a consultant (low level position - not a management or senior role) and I'm looking to move from the permie to contracting for the client that I'm currently deployed to. Hope that makes sense? In short I work as a permie for A as a consultant, working for client B, I want to join B as a contractor but worried about my covenants from A.

Once in the title, twice here, we get it, it's not that hard to understand!

The answer is....it depends on your contract as you suspect. If there is nothing in there, and you have also seen the agreement between you current co and the client co, then on the face of it you might be ok.

I am surprised by that however, usually companies (your employer) don't like having their staff poached, that's why they often have these clauses as it is one of they few areas they can control.

That being said, if they are a big enough client for them, they might waive that clause (if it existed) to keep the client happy.

I'd be double and triple checking though to make sure.

[northernladuk]

Always a complex area this for a whole host of reasons... Firstly.. Restrictive covenants are not normally enforceable for 12 months. 6 months yes. They also have to be fair. Bearing in mind your employer will lose revenue if you go then I'd say he has a pretty watertight argument this will cause them loss and therefore be enforceable (timescales bit aside).

There is very likely to be an anti-poaching agreement that stops exactly what you are trying to do.

The problem is.... you are looking at all the legal aspects... Are you really going to take this legal and drag your employer and their client in? Will the client really want you after you do that. Although it seems in the eyes of the law you might get away with it it's going to be a bloody mess if you have to go down that route.

There is also the IR35 issue. I would say you will be treated as a Friday to Monday contractor in this situation. We discussed clients of agencies awhile ago as I asked the question as to where IR35 applies. I think the quick answer was both. So you'll effectively going from being an employee doing something to a contractor doing something. Fri-mon contractor. This will probably make it not worth doing money wise.

Unless there is some massive amount of goodwill here, which bearing in mind you say you aren't senior, it's going to be a tough sell, particularly when you are going the mercenary route which really benefits neither of the other two parties...

I'd say you are on a wish and a prayer with this one.

[WordIsBond]

There is only one way to be sure. Ask the client if they will approach your current employer and ask them to waive any restrictions. Don't YOU ask your current employer, there is no reason they should give you anything. But if the client asks, well, they want to keep good relations with the client. Maybe they ask for a one off payment in compensation, maybe the client will pay it or maybe you end up paying it. But there is a pretty good chance they'll agree something reasonable with their client, and much less chance they'll be reasonable with you.

If they say yes, you're clear. If they say no, well, then lawyers might end up getting involved, and that is unlikely to end well for you.

Of course, you can just go for it. And if the consultancy objects, you end up on the bench.

[nozmeister]

Accenture contract? Good luck but they should be keeping the client happy so if the client really really wants you its not an issue.

[MrMarkyMark]

Have seen it done successfully a number of times, Accenture amongst others.

However, I would agree this would almost certainly be IR35 caught.
Obviously if you wish to take the risk that's up to you.

[SueEllen]

I've also seen it done.

One thing is loads of companies write their restrictive covenant too wide and too long so it cannot be enforced at all.

The ones I know are enforceable are 3 months long for lowly bods like you, and then as soon as the person says they are leaving they are put on a minimum of one month's gardening leave.

If you worked in sales 6 and 12 months can be enforced.

I suggest you get an employment lawyer to look at your restrictive covenant and then, and only then make your move.