Issue with covenant/rate

[Beefy198]

On a very brief skim read, no.

[Cheshire Cat]

Hello,

(If anyone manages to read this to the end, let me know, I will buy you a pint)

I am due to finish a two year contract which I undertook with FDM group. I basically signed up to their academy program where they provide training and certification for free as long as you agree to work for them for two years. I am due to complete that two years December 31st.

The client wants me to stay and a couple of months ago I told them what I would want in my back pocket (400 per day). They were currently paying 365 to the agency. I also informed the agency that I would stay on as a freelancer under the same terms as agreed with the client. The agency worked with the client and finally they agreed a rate of 440 with the agency taking 10% margin. This was fine for a few months until the other day when I got a call from the agents London office (I am working in Luxembourg where they have an office whom I dealt with). The manager from London called me and bluntly told me this isn't acceptable and the best they could do is 63,000 gross if I stay an employee of the agency. I told him to get stuffed and that it was already agreed with Luxembourg and the client.

I got another call from them (FDM London) yesterday saying that they could increase to 350 per day, I again told them that it's not enough and I want what I negotiated two months ago. I also informed them that I would be happy to leave but as they have wasted nearly three months of my time finding a new gig would not be so easy and the least they could do is let this one go through as they made the mistake (the mistake being their agent didn't mug me enough). They have dug their heels in and so have I. The client has done his best to fight my case and has told them he would be angry if I have to leave because of this, at this point they still don't look like budging. The problem is I never got a signed agreement from the client as the admin lady was away, I would have got this sometime this week until the London office got involved.

I have the following clauses in my contract:

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non competition clause
10.1 During the course of this Contract as well as during a period of twelve months after its termination, the Employee shall refrain from carrying on directly or indirectly any activity similar to the activities carried on within the framework of this Employment Contract, be it by
10.1.1 running a personal business, whereby IT consultancy services are supplied to Clients of the Company
10.1.2 by working for a competing Company and so having the possibility to harm the Company by using to his own benefit or to the benefit of a competitor of the Company the specific knowledge acquired during his employment with the Company.
10.2 This non-competition clause shall apply only in respect of work conducted in Luxembourg.
10.3 This clause shall not apply if this Employment Contract is terminated
10.3.1 during any trial period or,
10.3.2 after the trial period, by the Company in breach of this Agreement or by the Employee for gross misconduct by the Company.
10.4 Where this clause shall be enforced after the termination of this Contract, the Company shall pay compensation amounting to six times the final gross monthly remuneration paid to the Employee, excluding any extraordinary or gratuitous payments. This compensation shall not be due if the Company waives, within a 15 day term following the termination, the application of this clause.
10.5 in case of violation of this clause by the Employee, the Employee shall refund to the Company the compensation that he will have received and shall furthermore pay to the Company an indemnity equal to this compensation, without prejudice to the right of the Company to claim further damages.

restrictive covenant
11 The Employee shall not, during his period of employment with the Company, or at any time during the six-months period thereafter.
11.1 solicit or otherwise enter into correspondence with any Restricted Client (as defined hereunder) in order to be hired by said Restricted Client as employee;
11.2 accept, sign or otherwise enter into any employment contract with any Restricted Client;
11.3 employ or engage or solicit or try to entice away any employee of the Company or any Restricted Client to leave the employment of the Company or any company of the FDM group of companies.

For the purpose of this clause, “Restricted Client” shall mean any Client with which the Employee personally has had dealings or of which the Employee has gained knowledge, in the performance of his duties as Employee, during the twelve months prior to the termination of this agreement.
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The first one is void because you can't enforce a non-compete clause on an employee who earned less than 42,000 in the last year of employment which I did.

The problem is the second one. If I were to work as an employee of the Umbrella would I get caught by this clause?

Also, do you think I am being to stubborn? Should I just take the 350? What's pissing me off most is the fact that I raised the rate up to 440 and FDM are trying to take this for themselves. They have already made an estimated 40,000+ Euro out of me in the last two years and I don't want them to see them keep on mugging me.

Anyone got an general advice?

Cheers.

No idea. HTH.

[Turion]

Time you stood on your own feet. Go find a new gig.

[jkoder]

Hello,

(the short version)

Given the clause below does anyone know if I can break from the agency and continue to work for the client as an employee of the umbrella company? So, I wouldn't sign an employment contract with the client but only with the Umbrella company who would sign a contract with the client.

11 The Employee shall not, during his period of employment with the Company, or at any time during the six-months period thereafter.
11.1 solicit or otherwise enter into correspondence with any Restricted Client (as defined hereunder) in order to be hired by said Restricted Client as employee;
11.2 accept, sign or otherwise enter into any employment contract with any Restricted Client;
11.3 employ or engage or solicit or try to entice away any employee of the Company or any Restricted Client to leave the employment of the Company or any company of the FDM Group of companies.

For the purpose of this clause, “Restricted Client” shall mean any Client with which the Employee personally has had dealings or of which the Employee has gained knowledge, in the performance of his duties as Employee, during the twelve months prior to the termination of this agreement.