Will I get caught out ?

[Jakes Daddy]

In a previous post (http://forums.contractoruk.com/thread5731.html), I mentioned that I am close to securing my first contract.

My situation is this:
I am a permie working for an 'IT Solutions' company (nothing more than a glorified agency in my eyes). Basically, they sub me out to other companies very much like a contractor. Infact, all the customers I work for see me and treat me like a contractor. So, I am treated like a contractor without the contractor benefits.
My current 'contract' is due to finish at the end of Feb; but they are talking to the 'sales dept' of my employer with a view to extend it for another year.
Before the deal is done and its all too late, I have approached the customer directly, said that I will probably leave my employer to go contracting soon, and could we do a deal kind of thing. They were pretty receptive to it as
a) it is me they are after not the services of my employer, and
b) going direct with me will save the project a stack of cash.

I have 2 worries with this however; and they are both within the "Restrictive Covenants" section of my contract of employment with my Employer.
1) Whilst employed by them, I am not allowed to solicit my services to a customer - clearly I am doing this (but obviously my employer does not know (yet ...))
2) I am not allowed to work for a customer within 6 months of leaving my employer.

Clause 1 is a problem, not sure what I can do about it, but if my prospective client and I both tell the same lie I'm not sure how my employer can prove anything

Clause 2 is also a problem, but as I am planning on using an umbrella, technically the brolly will be employing me, not the client. And the clients contract will be with the brolly, not me.
Also, I wonder how they can actually enforce such a clause. Presumably once I've left the employer, the contract is past tense, its no longer binding, and I can do what I like ??

Anyone else been faced with similar issues ??

Cheers

Nathan

[Phoenix]

In a previous post (http://forums.contractoruk.com/thread5731.html), I mentioned that I am close to securing my first contract.

My situation is this:
I am a permie working for an 'IT Solutions' company (nothing more than a glorified agency in my eyes). Basically, they sub me out to other companies very much like a contractor. Infact, all the customers I work for see me and treat me like a contractor. So, I am treated like a contractor without the contractor benefits.
My current 'contract' is due to finish at the end of Feb; but they are talking to the 'sales dept' of my employer with a view to extend it for another year.
Before the deal is done and its all too late, I have approached the customer directly, said that I will probably leave my employer to go contracting soon, and could we do a deal kind of thing. They were pretty receptive to it as
a) it is me they are after not the services of my employer, and
b) going direct with me will save the project a stack of cash.

I have 2 worries with this however; and they are both within the "Restrictive Covenants" section of my contract of employment with my Employer.
1) Whilst employed by them, I am not allowed to solicit my services to a customer - clearly I am doing this (but obviously my employer does not know (yet ...))
2) I am not allowed to work for a customer within 6 months of leaving my employer.

Clause 1 is a problem, not sure what I can do about it, but if my prospective client and I both tell the same lie I'm not sure how my employer can prove anything

Clause 2 is also a problem, but as I am planning on using an umbrella, technically the brolly will be employing me, not the client. And the clients contract will be with the brolly, not me.
Also, I wonder how they can actually enforce such a clause. Presumably once I've left the employer, the contract is past tense, its no longer binding, and I can do what I like ??

Anyone else been faced with similar issues ??

Cheers

Nathan

You Are Ashley Cole and I claim my £5

[malvolio]

Presumably once I've left the employer, the contract is past tense, its no longer binding, and I can do what I like ??

Don't get out much, do you. Are you still paying for your car or did you decide once you had it not to bother any more?

It's a contract. You signed it. It is legally binding until the last requirement has been met. Is that so hard to understand? Go freelance with that approach and you'll be out of work very quickly, for quite a long time.

Well you've already blown it, and in theory you could get sued by the consultancy for the loss of revenue resulting from your actions. I think you need to start looking for another job - preferably a permie one.

[DodgyAgent]

Don't get out much, do you. Are you still paying for your car or did you decide once you had it not to bother any more?

It's a contract. You signed it. It is legally binding until the last requirement has been met. Is that so hard to understand? Go freelance with that approach and you'll be out of work very quickly, for quite a long time.

Well you've already blown it, and in theory you could get sued by the consultancy for the loss of revenue resulting from your actions. I think you need to start looking for another job - preferably a permie one.

Your employer cannot stop you from working for whoever you wish regardless of the contract. What they can do is sue you for loss of revenue (their "margin" for 6 months). The contract needs to state that recourse will be financial. If it simply says you cannot work for their customer you shouild be OK. I am not a lawyer, just an honest agent who knows a few tricks

so ring someone like lawspeed or Tarlo Lyons

[Phoenix]

"just an honest agent who knows a few tricks "

How can you stand there and say that!

[boredsenseless]

Don't get out much, do you. Are you still paying for your car or did you decide once you had it not to bother any more?

It's a contract. You signed it. It is legally binding until the last requirement has been met. Is that so hard to understand? Go freelance with that approach and you'll be out of work very quickly, for quite a long time.

Well you've already blown it, and in theory you could get sued by the consultancy for the loss of revenue resulting from your actions. I think you need to start looking for another job - preferably a permie one.

Agree completely - and lets be honest how do you know what the manager is saying back to your employer when you aren't listening. And even if he isn't are you sure that the HR manager of the company isn't a mate of your current employer and they'll find out somehow.

Contracts are there to be kept, you wouldn't be impressed if they didn't pay you would you? However the only obligation they have to pay you is because the contract states it. So do you still think contract clauses are meaningless?

[Jakes Daddy]

Your employer cannot stop you from working for whoever you wish regardless of the contract. What they can do is sue you for loss of revenue (their "margin" for 6 months). The contract needs to state that recourse will be financial. If it simply says you cannot work for their customer you shouild be OK. I am not a lawyer, just an honest agent who knows a few tricks

so ring someone like lawspeed or Tarlo Lyons

Thanks DodgyAgent; thats more like what I wanted to hear. I'll check the contract again tonight, but I'm pretty sure it only says I cannot work for a customer for 6 months and says nothing of the penalties if I do.

My employer is a pretty small company with not much money to get into legal arguments with ex-employees, and with a history of writing contracts that dont hold that much weight.

Will certainly take your advice and ring someone about it.

Thanks
Nathan

[DodgyAgent]

Thanks DodgyAgent; thats more like what I wanted to hear. I'll check the contract again tonight, but I'm pretty sure it only says I cannot work for a customer for 6 months and says nothing of the penalties if I do.

My employer is a pretty small company with not much money to get into legal arguments with ex-employees, and with a history of writing contracts that dont hold that much weight.

Will certainly take your advice and ring someone about it.

Thanks
Nathan

Good luck. And if you need an honest agent I am in the directory (not honest ones though )

[BlasterBates]

Its much easier as an ex-employee than if you operate as a Ltd, and break the contract.

Probably worth the risk, which I imagine would be slight.

[DodgyAgent]

You may find that your biggest problem will be between your employer and your client. The client may not want to get involved in a dispute over an employee. I have seen this happen quite a number of times and I would reccommend that you negotiate with both parties. If your employer sees that you are going to leave anyway and can be persuaded to not rock the boat (maybe by the client being prepared to offer them more business in the future), then you could have your cake and eat it.