Restriction clause for other employees of my company?

[MankyManning]

My contracts with an agency for a long standing client have all had this in:-

"Neither the Service Provider and its Directors or the Consultants shall enter into any agreement, whether directly or indirectly, to supply contract Services/services of a similar nature to the Client or a subsidiary or associated company of the Client or to the Client's client or the Client's customers, other than through the Company for a period of 12 months following the termination of this agreement."

I am finishing with this client this week to move onto other work. However my wife is going to get back into IT after a long break to have children. There is an option for her to do sporadic pieces of ad-hoc work for this client. She has never worked through this agency or my company before.

The aim of this clause is to prevent me going direct and cutting out the agent, I don't want to do this as I am off to work elsewhere now. I suppose my wife could go self employed and do the work not through my Ltd company but it is far more efficient I would have thought to put the work through my Limited company and make her an employee...it is just the above clause seems to rule it out.

I know there are "how enforceable are these?" type questions but they are generally from people wishing to break the spirit of the thing, I am not trying to get one over on anyone here but really the agency hasn't had any involvement with this.

Any thoughts?

[eek]

First question. did you opt out before being introduced to the client? if not then you have opted in and the clause is not enforceable. If you did opt out argue the point.

[TykeMerc]

First question. did you opt out before being introduced to the client? if not then you have opted in and the clause is not enforceable. If you did opt out argue the point.

Plus the consensus of opinion is a 12 month clause is unenforceable so in effect no restrictive clause applies.

Worst case you close your current MyCo Ltd, open another and the legal entity that signed the contract you're just ending no longer exists so again the clause is meaningless.

[MankyManning]

I am not sure of the relevance of the opt in/opt out sorry - probably me being thick. I did however have an interview, got the contract and then the opt out form was given to me and I signed it. I had already met the client through the interview process at that point.

[eek]

I am not sure of the relevance of the opt in/opt out sorry - probably me being thick. I did however have an interview, got the contract and then the opt out form was given to me and I signed it. I had already met the client through the interview process at that point.

A restraint of trade clause can only be included if you are opted out and you can only legally opt out prior to being introduced to the client.

[SueEllen]

A restraint of trade clause can only be included if you are opted out and you can only legally opt out prior to being introduced to the client.

And unlike temps (and what agencies believe) the fact the end client interviewed you and saw your name on the CV before offering your company the position means if you didn't sign an opt-out letter before that you are automatically opted-in.

[Wanderer]

I am not sure of the relevance of the opt in/opt out sorry - probably me being thick. I did however have an interview, got the contract and then the opt out form was given to me and I signed it. I had already met the client through the interview process at that point.

There is now a sticky which explains a bit about the opt-out and why you should never sign it unless you are certain you understand what you are doing.

The question of the validity of the opt-out is a tricky one, the legislation says you must opt out "before the introduction or supply". Many contractors read this to mean "opt out before the introduction or supply, whichever one happens first" while many agents read this to mean "opt out before the introduction or supply, which ever happens last".

I would be inclined to agree with the others on here and act as if the opt out was not valid because it was not signed before you were introduced to the client and make them take you to court if they want to enforce the clause. Most likely, they will just drop it if you stand up to them. It would be great to see a test case brought regarding this but of course agencies aren't going to let it go to court so we may never have this point clarified.