Giant

[Cowboy Bob]

This is enforceable. It is a restraint of trade but providing that the duration is not excessive (and 12 months isn't), the geographical spread wasn't too wide, and that the restraint was/is neccesary to protect the business then it is legal and enforceable. Whether or not they will is open to debate but they can if they want to and often these clauses are enforced as a deterrent to others.

3-6 months is regarded as the limit to these handcuff clauses. Anything more IS excessive. Besides, since Giant's contract is with the individual, they have no legal basis to restrain a contract on a limited company.

[Jason D]

Bob

You cannot form a limited company and evade your personal obligations, the veil of incorporation is lifted in these instances.

[Cowboy Bob]

One company cannot impose working restrictions on to another. Otherwise, like in my previous example, Giant would be able to impose restrictions on where IBM could or could not place their employees - which is patently ridiculous and would never be allowed.

Giant CAN put in a handcuff clause to say that their employees cannot go and work for their competitors, but that is not what is being proposed here.

[Jason D]

In your example yes, but that is not relevent to the original posters problem - he wants to set up as an owner managed company, and in these instances, the company and the individual are treated as one and the same in relation to restraints of trade

[Austin Wong]

Oh well, I can only hope and pray then they are reasonable and put this all down to a learning curve.

[Austin Wong]

I must say though I don't know how I could be a threat to their business.

[richy]

Giant!

the tie in is only "signed" if they had a piece of paper in advance of the work starting AND the contract being proposed indicating you wished to opt out of the employment agency regulations. If they don't have that signed document, none of those clauses come into force.

In spite of that... any solicitor will just cross out most of that 'contract., its an unreasonable restraint on trade. Best thing to do now is to get something in writing to Giant (by recorded delivery).. "confirming" that you have not opted out of the regs etc etc. If you have left it months and months that wont help, but the sooner you make it plain the better!

Re Giant, tis defo not worth it, if your salary is 1k per week, you will loose about £350 on tax which if you formed a business you wouldn't have. the thing is, you need to really be a business, making sure you make efforts to look like you are planning on growing and acting as a bussiness.. and not a person! thx.richy

[grafter]

Get Roger Sinclair onto it,dont know his email etc but google itl

[M@H]

This is enforceable. It is a restraint of trade but providing that the duration is not excessive (and 12 months isn't), the geographical spread wasn't too wide, and that the restraint was/is neccesary to protect the business then it is legal and enforceable.

I have been in the High Court with one of these and it failed to be enforced. Giants one is debateable as it states 12 months regardless of the period of the contract (i.e. a 2 month contract with IBM should not preclude you from working for them for 12 months afterwards) which in my mind is not reasonable. for info there is no geographical reference. To give you the text it states:

2.4 You hereby agree that you shall not (without the prior consent in writing of the Company) for a period of 12 months immediately following the termination of an Assignment indirectly or directly or through an agency or otherwise and whether on your own behalf or in conjunction with or on behalf of any other person, firm, company or other organisation, (and whether as an employee, director, principal, agent, consultant or in any other capacity whatsoever), (a) be employed or engaged in, or (b) perform services in respect of, or (c) be otherwise concerned with the Client for whom you were carrying out that Assignment.

however (as said)
"2.6 The provisions of clauses 2.4 and 2.5 above shall only apply if you have opted out of the Conduct of Employment Agencies and Employment Businesses Regulations 2003 in respect of that Assignment. "

but Giant appear to wrap up the Opt out statement with the Working Time Directive (and Label it as "WTD opt out") ... hmmm.

[Lewis]

I don't understand. I left Giant in April with no problems. As have 100s who were going to go to trailblazer. Why are you having problems? What were you on with them Strongbox or Powerhouse. Maybe there is some difference. I was on Powerhouse. I wouldn't have thought Giant care who you work for it is normally agencies that have these clauses not Giant. Unless they are getting desperate now times are hard ?!