Restrictions on next @#%$

[Sally20]

Any views on restrictions in contarcts 'for a period of 6 months shall not work for x or any member of x group of companies.'

Fairly standard but what about if X is a govt dept - is it restricted to the dept concerned only or all govt depts?
Is it best to specify say 'the term only applies to dept x' to avoid blanket coverage?

[DimPrawn]

Restraint of trade. I'd flick 'em the V's and walk away, but then I'm not a disguised employee I suppose.

[mailmannz]

Restraint of trade clauses are unenforceable. Talk to them...they might agree with you and remove the clause.

Mailman

[rebeccaloos]

I don't think you even need to talk to them and remove the clause. Leave it on and ignore it. If they ever try to enforce it, they can't. End of story.

[Martin Underwood]

oh really?

"Restraint of trade clauses are unenforceable."

Er, no.
UNREASONABLE restraint of trade clauses are unenforceable. Reasonable restraint of trade clauses are indeed enforceable.

6 months is usually considered a reasonable time limit, and the agency can (and indeed will) sue you if you break this clause within 6 months.

[mailmannz]

Re: oh really?

Er yes...restraint of trade clauses are unenforceable :rollin

6 months is usually considered a reasonable time limit, and the agency can (and indeed will) sue you if you break this clause within 6 months.

Err...no they cant. This is unenforceable if your contract does not contain a clause that allows for you to transition out of their control at the end of the contract.

God I hate being right all the time :rollin

Mailman

[DodgyAgent]

Re: oh really?

6 months is usually considered a reasonable time limit, and the agency can (and indeed will) sue you if you break this clause within 6 months

.

Bollox, I would not sue anyone. I might say I would but when "push came to shove" it would not be worth it.

Anyway to clear this one up:

You cannot prevent a person from going to work if they break the clause through an injunction (restraint of trade). You CAN however charge the person for loss of profit if they go direct within 6 months. The contract however needs to state clearly how the redress is imposed. If your contract simply says that you cannot go back either directly or through another employer then it is meaningless.
If on the other hand it says that you may be charged for loss of profit if you do break the clause then you need to be careful.

In other words mailman is, in my opinion, for once in his sad life, correct!!!!! well done mailman

[Martin Underwood]

Restraints and handcuffs: going cheap

Mail man: You need to brush up on your legal knowledge (either that, or get back to delivering post on time).

Restrictions in restraint of trade will generally be enforceable to the extent that they go no further than reasonably necessary to protect legitimate commercial interests of the party imposing the restriction.

In the example of an agency that acts as the intermediary between a client and a contractor, a 6 month restraint of trade would generally be considered reasonable (since otherwise, all contractors would simply jump ship and go direct at the first renewal).

You may wish to read Egos's articles on the matter for a more thorough explanation.

"God I hate being right all the time"

God, I LOVE being right all the time

[Viking]

Termination, is exactly that Termination

OK, let's clear this up once and for all, restraint of trade clauses are unenforceable especially when dealing with a contractor as a limited company is usually trading with another limited company and this is facilitated by the use of a contract. Once a contract is terminated, it is terminated, everything within the contract is now null and void.

If the company wants to stop you from trading with a competitor, then they have to have you explicitly sign another contract after the termination of the previous contract. In this case, you would be expected to receive some sort of renumeration to recompense you for this restriction, especially as all contracts must have a consideration to be valid.

Finally, it is a common misconception amongst contractors that you cannot go back to a client once your original contract has terminated. No agency has ever succesfully sued in this eventuality.

[mailmannz]

Re: Termination, is exactly that Termination

Regulation 10 - Contractors must be allowed to “go direct”

Where a contractor currently contracting via an agency wishes to “go direct” and enter into a contract with the client when his contract via the agency ends, the agency cannot prevent this. The contract between agency and client may have a clause providing for a transfer fee to be paid by the client but that clause will be unenforceable unless the contract also provides the client with the option of retaining the contractor via the agency for a further period (on terms no less favourable to the client than before) after which time the contractor can transfer without the client being charged any transfer fee at all. Alternatively if there is a gap of at least 8-14 weeks (whether it is 8 or 14 of somewhere in between depends on a number of complex rules) after the contractor finishes a contract via an agency then the contractor is free to go direct without any transfer fee and without any further period of supply via the agency.

The Conduct of Employment Agencies and Employment Business Regulations 2003.

Restriction on charges to hirers
10. - (1) Any term of a contract between an employment business and a hirer which is contingent on a work-seeker taking up employment with the hirer or working for the hirer pursuant to being supplied by another employment business is unenforceable by the employment business in relation to that work-seeker unless the contract provides that instead of a transfer fee the hirer may by notice to the employment business elect for a hire period of such length as is specified in the contract during which the work-seeker will be supplied to the hirer -

(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.

Now what was that about not knowing what Im talkin bout :rollin

Im going to throw another spanner in the works here...penalty clauses in contracts are also unenforceable. 8o

Damn baby...its hard being right all the time :rollin

Mailman