Non-solicitation clause

**interested** · 5 May 2006, 09:58

Originally posted by Skibum71

Hi,

I'm currently contracting with a client through Computer People and the contract is coming up for renewal soon.
The client wants me to stay but, as C.P have recently been removed from the Clients Preferred Supplier List (poor service - surprise, surprise!), so I need to move to another agency.
The problem is I have a non-solicitation clause in my contract with C.P. and I'd like to know what my options are? Is this clause enforceable?

The clause is:

Non-solicitation of Client
Throughout the Assignment Period and for a period of 4 months afterwards the Contractor will not and will procure that the Personnel will not provide services similar to the Services or any information technology related services in any capacity either directly or indirectly to:

the Client (or to any of the Client’s subsidiary or associate companies in respect of which it provided Services during the Assignment Period);
any customer of the Client or any of the customer’s subsidiary or associate companies in respect of which it provided Services during the Assignment Period; other than with the written consent of the Company. The Contractor shall also not discourage the Client from dealing with the Company. The Contractor hereby indemnifies the Company for all financial loss it suffers arising from any breach by the Contractor of this clause 11.

I've asked C.P if they will waive the clause but they haven't got back to me yet. Also, if I were to just not tell C.P. I'm moving could I get sued - I have my own Ltd which I could close down and start a new one?

Thanks in advance

I think it depends on the relationship with you/CP/the client as to whether they enforce this or not. It's probably not worth CP enforcing it (£ wise) but if they've been removed from the PSL they are probably none too happy and might try to enforce it just to be vindictive.

**malvolio** · 5 May 2006, 10:03

If that's who I think it is (Biggish comPany in London, Sunbury and the rest of the world?). you can almost certainly ignore it. Move across to SQ and let the Contractor Desk worry about ex-suppliers - they are considerably more powerful than you are, and I have it on good authroity (having spoken to the relevant line manager) that they have a clear plan to manage any such eventualities. Drop me an email at work (search the GAL for "GO Transition Manager") if that would help.

Of course, if it isn't that company, you're in trouble and will need to talk to your client ...

**ASB** · 5 May 2006, 10:06

Originally posted by Skibum71

Hi,

I'm currently contracting with a client through Computer People and the contract is coming up for renewal soon.
The client wants me to stay but, as C.P have recently been removed from the Clients Preferred Supplier List (poor service - surprise, surprise!), so I need to move to another agency.
The problem is I have a non-solicitation clause in my contract with C.P. and I'd like to know what my options are? Is this clause enforceable?

The clause is:

Non-solicitation of Client
Throughout the Assignment Period and for a period of 4 months afterwards the Contractor will not and will procure that the Personnel will not provide services similar to the Services or any information technology related services in any capacity either directly or indirectly to:

the Client (or to any of the Client’s subsidiary or associate companies in respect of which it provided Services during the Assignment Period);
any customer of the Client or any of the customer’s subsidiary or associate companies in respect of which it provided Services during the Assignment Period; other than with the written consent of the Company. The Contractor shall also not discourage the Client from dealing with the Company. The Contractor hereby indemnifies the Company for all financial loss it suffers arising from any breach by the Contractor of this clause 11.

I've asked C.P if they will waive the clause but they haven't got back to me yet. Also, if I were to just not tell C.P. I'm moving could I get sued - I have my own Ltd which I could close down and start a new one?

Thanks in advance

- If you just do it then C.P. could sue. It is up to them to discover it, and also to initiate any proceedings. In cour they willl have to establish that the restraint is valid. It is not down to you to prove it is not. A jusge may take the view that CP have no ongoing relationship to protect therefore there is not damge anyway. If you were opted in then I think the restraint is completely invalid due to the agency regs anyway.

- A new co may or may not be effective. It depends upon the context in which the clause was signed, whether it was signed ny you personally, also what undetakings there are elsewhere in the agreement that may fall to you personally.

- A judge will often strike out any form of restraints which prevents somebody earning a living - unless the person is compensated during the period.

- Restraints of up to 12 months have been upheld before now.

- In court it is an all or nothing things. Either the restraint stands as is, or it is thrown out completely.

Look up retraint of trade and do a bit of searching. You can then form a better view of your own.

If I were you then I would just ignore it, and the inevitible threats that will follow if they find out. In the absence of anything agreed to the contrary the maximum claim CP can make is for their provable loss. It seems to me this is quite likely to be nil anyway.

Edit: There is no way on earth that CP can directly prevent you from working there . They may be able to scare your off with threats, same for the client but ignoring them puts the ball back into CPs court. It is beyond unlikely that if the restraint were upheld a judge would order you off site.

**Mailman** · 5 May 2006, 10:09

Its unenforceable. To be enforceable (or at least to have a good chance of holding up should the feckers want to take you to court) the clause has to be SPECIFIC as to where you cannot work (location wise).

You cant be banned from working with the client but if the wording was more "you cannot work for the client in London for x months" then they would have a better chance of being able to enforce the clause.

And as someone already said, probably cost CP more to enforce the clause then they would ever be able to get back from you.

Mailman

**malvolio** · 5 May 2006, 10:30

Don't you lot ever read the thread? If it's who I think it is, (and unless CP have lost two major contracts in the last two weeks,which I hope has happened but somehow doubt) it's covered already. The individual contractors wil not have a problem.

**DodgyAgent** · 5 May 2006, 10:48

Originally posted by malvolio

If that's who I think it is (Biggish comPany in London, Sunbury and the rest of the world?). you can almost certainly ignore it. Move across to SQ and let the Contractor Desk worry about ex-suppliers - they are considerably more powerful than you are, and I have it on good authroity (having spoken to the relevant line manager) that they have a clear plan to manage any such eventualities. Drop me an email at work (search the GAL for "GO Transition Manager") if that would help.

Of course, if it isn't that company, you're in trouble and will need to talk to your client ...

Who are SQ?

**Skibum71** · 5 May 2006, 10:49

Malvolio - you are correct!

**Forumbore** · 5 May 2006, 11:01

I know SQ

Originally posted by Skibum71

Malvolio - you are correct!

I also work on this site, and SQ are the ones who block contractors by telling them that they are going to put them up for jobs and dont. This tactic is used where agencies have a limit to the number of CVs that they can put forward as it stops other agencies from putting good contractors forward. The effect is to give the client a bad name and to ward off a lot of perfectly good contractors.

**ASB** · 5 May 2006, 11:23

Originally posted by malvolio

Don't you lot ever read the thread? If it's who I think it is, (and unless CP have lost two major contracts in the last two weeks,which I hope has happened but somehow doubt) it's covered already. The individual contractors wil not have a problem.

Fair comment.

But, as a matter of fact, the client can't actually do anything at all to prevent CP from suing the OP. Granted there may well be procedures in place that will enable the threats to frighten off CP, and these may well be effective. In the final analysis however if CP want to sue the OP they will - because they have the absolute right to make that choice.

Non-solicitation clause