subcontractor to contractor move

[chrisev]

I'm employed by a Consultancy who subcontract me to a client and they then take about 60% before paying my salary. I've decided to take the contracting route and quit this week.

I have an employment contract that says I cannot work for their clients within 6 months of leaving them, at first glance I'd accept that clause and find another client & contract, however I don't want to leave my client in the lurch and would like to carry on with them for a while.

Does anyone know of similar situations where the contractor did continue to work for the same client ?

Did they have to pay any compensation to the consultancy?
Did the consultancy take any legal action ?
Is that clause on the contract enforceable ?

I'm not trying to do a dirty trick here and have offered the consultancy the chance to act as an agency and take a reasonable % fee, but IF they are not reasonable I'd like to sign up with another agency and continue with the same client.

thanks in advance,

[JS]

Re: MOving

Well, I'd speak to an employment law solicitor first to confirm what I think because I am not one but I am pretty sure they cannot enforce such a clause on an employee UNLESS they are prepared to pay you for that time, used to be called 'gardening leave'.

[antell]

Re: Moving

As you would expect I concur with the suggestion that advice should be sought from a solicitor (or barrister) who specialises in this area of law.

Employers can insert clauses in employment contracts which restrict what the employee can do after they leave but:

1. You often find that the clause has been badly drafted and does not cover as much as it first appears to.

2. Even if the clause does cover the matter, there are several circumstances in which it will not be enforceable.

John Antell

www.john.antell.name

[widgetdance]

Ltd. company status

Again ask a legal bod, but if you contract through your own Ltd. company then Your company works for the client not you, you work for your company.
Assuming that your client will sign up to a B2B contract with your Ltd. comapny.

I bet your employment contract cant get round that one.

[chrisev]

Re: Ltd. company status

Thanks for the views, I've now agreed terms with my employer to act as my agent for a while so we can see the existing contract through. Fingers crossed it will all turn out well.

[mailmannz]

Re: Ltd. company status

As everyone says...seek advice from a lawyer.

However...restraint of trade clauses are at best flawed and at worst unworkable.

If the clause says in your contract that you cannot work for the client for 6 months you can argue the clause is too wide in that you could not work for the same client in, say, another country. The courts usually would agree with you and will strike the entire clause down as being unworkable (plenty of case law to support this).

The other thing is that your former "employer" would have to PROVE that the restraint of trade clause is reasonable and does not unduly stop you from earning a living. There are two things the agents would have to prove, 1 any trade secrets you take would be harmful to them and 2, trade connections (maybe they introduced you to the client OR you found the client yourself?).

If you do seek legal advice...post the outcome here.

Mailman