Non-Solicitation Issue
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  1. #11

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    It there is no non poaching clause in the agreement between company and x and client y, it would be the first time in the history of IT services.

    It's the main clause in any professional services contract as it obviously makes sense to cut out the intermediary.

    I suspect your own employment contract will also be rock solid in restricting you from going to direct to a client of your companies.

    It's a bit naive to expect Company X will be cool with this unless they are in financial distress.

  2. #12

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    Quote Originally Posted by Kanye View Post
    It there is no non poaching clause in the agreement between company and x and client y, it would be the first time in the history of IT services.

    It's the main clause in any professional services contract as it obviously makes sense to cut out the intermediary.

    I suspect your own employment contract will also be rock solid in restricting you from going to direct to a client of your companies.

    It's a bit naive to expect Company X will be cool with this unless they are in financial distress.
    Just because there is a no poaching agreement in the contract doesn't mean it's enforceable.

    IT companies and consultancies often don't properly check their clauses for each role with lawyers. So while it's enforceable for a sales bod it's not enforceable for an IT bod who doesn't have a direct revenue raising relationship with clients.

    I know many people who walked out of their employer and took up work with the employer's client they had been doing project work for. The ex-employers then discovered that the clause they put in is unenforceable due to not being specific enough for the IT role. One had a 12 month clause in and was told that it was too long. However that employer wanted to stop the person moving to the client full-stop as he was the only person doing work for that client and they legally couldn't due to how the clause was written.

    On the other hand the enforceable clauses I know about are all outside IT. The majority for generic skilled not directly revenue raising roles are for 3-4 months and the person is normally put on gardening leave.

    One I know was enforced in court was for a healthcare practitioner in a rural area who was not allowed to work within 5 miles for 12 months. However talking to a healthcare manager I was told they couldn't put this clause in their contracts as in the urban area their practice was in they had a higher population density and no issues with getting patients. In fact they had to turn people away.
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  3. #13

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    Quote Originally Posted by Kanye View Post
    It there is no non poaching clause in the agreement between company and x and client y, it would be the first time in the history of IT services.

    It's the main clause in any professional services contract as it obviously makes sense to cut out the intermediary.

    I suspect your own employment contract will also be rock solid in restricting you from going to direct to a client of your companies.

    It's a bit naive to expect Company X will be cool with this unless they are in financial distress.
    No, it wouldn't.

    We lost a great lad because of it 15 years ago when I was on the same perm team as him. I'd imagine those that have suffered loss or have similar experiences have covered it but not all of them.
    The greatest trick the devil ever pulled was convincing the world that he didn't exist

  4. #14

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    Quote Originally Posted by Kanye View Post
    It there is no non poaching clause in the agreement between company and x and client y, it would be the first time in the history of IT services.
    It does happen. When I was a consultant, one client was looking to recruit me as a contractor instead (and save £1000 a day over the consultancy fees).

    But when they looked into it, they found that there was a handcuff clause - but it was them (or rather their parent company) that insisted on it being in place, rather than my employer.
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  5. #15

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    As an aside, there is the possibility of working for another Client next year, whilst remaining at the same facility (essentially working for a client that Company X has had no previous dealings with). Could this be a solution with regards to negating the non-solicitation clause? Or could Company X contest that as I'd still be working on the same project, albeit through a different client, it'd still remain valid?

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    Quote Originally Posted by gjltd View Post
    As an aside, there is the possibility of working for another Client next year, whilst remaining at the same facility (essentially working for a client that Company X has had no previous dealings with). Could this be a solution with regards to negating the non-solicitation clause? Or could Company X contest that as I'd still be working on the same project, albeit through a different client, it'd still remain valid?
    No. You've worked with them; they're regarded as a current customer. If you particularly want to leave and go and work for the other company, you many have to approach your manager and discuss it. If they were looking at making redundancies because of losing the contract with target client then you may save them a job. Others may recommend against it because it's showing more of your hand/indicating that you're not staying there long term but I think it's a case of how much you've got your heart set on leaving.
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  7. #17

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    Quote Originally Posted by gjltd View Post
    As an aside, there is the possibility of working for another Client next year, whilst remaining at the same facility (essentially working for a client that Company X has had no previous dealings with). Could this be a solution with regards to negating the non-solicitation clause? Or could Company X contest that as I'd still be working on the same project, albeit through a different client, it'd still remain valid?
    Depends on what the clause exactly says.

    You have already been told to take your contract to an employment solicitor for a view.
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  8. #18

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    Thanks all for your replies.

    It appears this is quite a difficult issue, as I'd predicted. I'll likely have to escalate this to a lawyer who specializes in Employment Law to ensure I've covered all bases.

    Thanks again for your help.

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