Originally posted by SportsQs
View Post
- Visitors can check out the Forum FAQ by clicking this link. You have to register before you can post: click the REGISTER link above to proceed. To start viewing messages, select the forum that you want to visit from the selection below. View our Forum Privacy Policy.
- Want to receive the latest contracting news and advice straight to your inbox? Sign up to the ContractorUK newsletter here. Every sign up will also be entered into a draw to WIN £100 Amazon vouchers!
Collapse
You are not logged in or you do not have permission to access this page. This could be due to one of several reasons:
- You are not logged in. If you are already registered, fill in the form below to log in, or follow the "Sign Up" link to register a new account.
- You may not have sufficient privileges to access this page. Are you trying to edit someone else's post, access administrative features or some other privileged system?
- If you are trying to post, the administrator may have disabled your account, or it may be awaiting activation.
Logging in...
Previously on "Restrictive covenant. I think its too broad - what do you think?"
Collapse
-
-
Thanks Guys,
TheFaQQer & Wanderer - I've taken legal advice and the solicitor agrees with you guys - no case to answer, due to opt-out not being valid. So I'll inform the agent that I will not be withdrawing from the role.
Thanks again!
Leave a comment:
-
Originally posted by SportsQs View PostMy agent has now trown out all of their toys and are threatening with an injunction.
Tell them to bring on the injunction - they won't get one for two reasons. One - there is no legal case here. Two - there is no legal case here. Now I realise that, technically speaking, that's only one reason but I thought it was such a big one it was worth mentioning twice.
Leave a comment:
-
Originally posted by SportsQs View PostMy agent has now trown out all of their toys and are threatening with an injunction.
It may be worth paying a solicitor a few quid to write a letter setting out your position and warning them that you will not tolerate any attempt to damage your business by seeking to enforce a restraint of trade which is clearly unenforceable otherwise the scumbag agency will try all sorts of underhand tactics like threatening the client.
Leave a comment:
-
OK, that's different. You are providing a necessary and unique business skill to your client, so them limiting your freedom to sell those skills elsewhere in competition to them is not unreasonable. Sounds like you need to get back to the negotiating table. Also the agency opt out is irrelevant here, this is between you and the service provider and an agreed contract.
You're not opted out though. Once he client knows who you are, you can't be unless you opted out beforehand. I suggest that, 15 years or not, you need to do some homework.
Leave a comment:
-
Thanks for the reply guys,
The client is a service provider within the NHS, it provides IT services to the Trusts/Doctors/Dentists etc... I'm operating under an umbrella company - been meaning to go Ltd for ages but not yet got around to it. Items 11.2 and 11.3 only apply if I have opted out of regulations. I initially did not opt out of regulations, but I think I was talked into it by my agent and changed my mind at a later date. However, part of the opt-out schedule reads:
"The agreement that the Regulations shall not apply has been reached before the Service Provider has been introduced or supplied to any person and before the Consultant has been introduced or supplied to the Client."
The contract started on 10/1/2011, and I decided to opt-out on 11/1/2011, one day after contract start date / meeting the client.
Why did I sign? I assumed it was a standard contract (been doing this for 15 years), didn't bother to read it - that's the last time I make that mistake.
Just to clarify the structure:
End Client [NHS] -> Service Provider -> My Agent -> me
So the client has engaaged a service provider to develop their system, the service provider has recruited myself through my agent.
It's the service provider that is kicking up a fuss - my agent is very chilled about it, although I'm sure they would like to see it enforced as well.
Thanks Guys.
Leave a comment:
-
I don't know the Welsh NHS that well, as I mainly work in England. But if Welsh NHS boards are established as English NHS Trusts, then they are not subsidiaries of NHS Wales or anything similar. They would be independent statutory bodies. I would do a little research and then take no notice.
Leave a comment:
-
It rather hinges on who the current client is. If it's the NHS, then you have a problem. If it's the local Trust or similar, then 11.2 is unreasonable and represents a clear restraint of trade. 12 months is unreasonable for the agency to have, it's only reasonable for a client where you provide significnat commercial value. 11.3 is immaterial and 11.4 doesn't apply since you weren't introuced to the new opportunity by your existing client.
Let them take you to court. Any half-comeptent solicitor can get it thrown out as being "unreasonable", which is an understood legal concept.
However, I echo SteelyDan's question - why on God's earth did you sign it in the first place?
Leave a comment:
-
I think we need to understand your status in all of this, so more info required:
How do you operate? Ltd Co, Umbrella, or what?
On the contract covenant(s), I'm struggling to see why you signed this.
Leave a comment:
-
Restrictive covenant. I think its too broad - what do you think?
Hi,
I am locked with my agancy regarding a restrictive covenant. I am a freelance developer for the NHS, and have applied for a similar position - different team/project/reporting structure/location/skill set with the client after seeing an advert on one of their job boards. My agent has now trown out all of their toys and are threatening with an injunction.
I think the covenant is unreasonably broad as it covers not just NHS Wales, but Subsidiaries, Associates, and clients and is for an unreasonable period of 12 months. For small firms maybe it's acceptable, but the NHS is huge so it covers a lot of ground. I've posted the relevant bits below, but any advice would be most welcome.
Thanks in advance
-----
11.2 The Service Provider and its Directors undertake that they shall not and that they shall procure that the Consultant(s) shall not enter into any agreement, whether directly or indirectly, to supply services of a similar nature to the Client or a subsidiary or associated company of the Client or to the Client’s clients, other than through the Company for a period of 12 months following the termination of the Agreement.
11.3 The Service Provider and its Directors hereby acknowledges that the Company expends significant resources in sourcing and maintaining its clients and is entitled to protect its commercial interests.
11.4 The Service Provider acknowledges that should the Client or a third party to whom it has introduced the Service Provider wish to utilise the Service Provider’s services other than through the Company, then the Company may be able to charge the Client a fee or agree an extension of the Supply with the Client.Last edited by SportsQs; 18 January 2012, 11:41.
- Home
- News & Features
- First Timers
- IR35 / S660 / BN66
- Employee Benefit Trusts
- Agency Workers Regulations
- MSC Legislation
- Limited Companies
- Dividends
- Umbrella Company
- VAT / Flat Rate VAT
- Job News & Guides
- Money News & Guides
- Guide to Contracts
- Successful Contracting
- Contracting Overseas
- Contractor Calculators
- MVL
- Contractor Expenses
Advertisers
Contractor Services
CUK News
- Streamline Your Retirement with iSIPP: A Solution for Contractor Pensions Sep 1 09:13
- Making the most of pension lump sums: overview for contractors Sep 1 08:36
- Umbrella company tribunal cases are opening up; are your wages subject to unlawful deductions, too? Aug 31 08:38
- Contractors, relabelling 'labour' as 'services' to appear 'fully contracted out' won't dupe IR35 inspectors Aug 31 08:30
- How often does HMRC check tax returns? Aug 30 08:27
- Work-life balance as an IT contractor: 5 top tips from a tech recruiter Aug 30 08:20
- Autumn Statement 2023 tipped to prioritise mental health, in a boost for UK workplaces Aug 29 08:33
- Final reminder for contractors to respond to the umbrella consultation (closing today) Aug 29 08:09
- Top 5 most in demand cyber security contract roles Aug 25 08:38
- Changes to the right to request flexible working are incoming, but how will contractors be affected? Aug 24 08:25
Leave a comment: