Employment contract advice

[RosieH]

Does anyone know if exclusion clauses in a work contract are enforceable.

I'm a contractor at an agency at the moment. My client no longer wants to work with the agency, but has approached me about going to work for them in-house instead.

My contract stipulates that I can't work with clients for 6 months after leaving - it's been suggested to me by someone in HR (externally) that this is unenforceable, but I'd like to make sure before I burn bridges / get horribly sued.

Or does anyone know, or know where I could get fast and inexpensive legal advice? Would love to take the job, but not at the risk of my career.

[Lowlander]

During the summer I used http://www.knightwebb.com

Very helpful friendly and, importantly for me at the time, fast

[Tradesman32]

I have been in this position before. I know Im stating the obvious here but As the client employed you through the agency it is important to ensure he is clear and open about his intention to employ you directly. We agreed a placement fee with the agency and everyone was happy.

I would imagine there will be a payment involved so hopefully the employer is happy to pay it.

[Otta]

I had a similar situation. Went to work for my current employers. Agency were not too happy but think they just had to suck it up in the end.

I actually felt quite bad as was on friendly terms with the agency owner, but as she said, the contract was with my new employer so her beef was with them not me.

[RosieH]

Thanks Lowlander.

Tradesman, I'm not sure it would be so straightforward - would be a dream if so. They're making a decision between employing me, or staying with an agency (i.e. not looking to recruit someone else for in-house) - so it could be construed that I've "stolen" business from my current agency.

And Otta, yeah, I hear you. Unfortunately, in this situation, I'm the one with the contract, and my client gets away scot free!

Think a solicitor is probably the way to go.

[DaveR]

A specialist solicitor will give you proper advice based on the actual terms, but these provisions are common in agency contracts (and there will be a term in the client's contract with the agency either prohibiting them from employing you, or providing for a fee if they do, or both), and there are often disputes about whether they are enforceable at all, or to what extent. It's unlikely you're going to get advice that is definitive, and by far the best way to resolve these sort of problems is by agreement. Unless there has been a serious breakdown in the relationship between agency and client there's no reason why a commercial solution can't be negotiated - the reason these terms are common is because the situation arises all the time.

[RosieH]

Yeah, thanks Dave. Unfortunately, the client isn't under contract with any restriction clauses in place - only I am. So it's all going to be my own risk.

Just going to have to bite the bullet and fork out the few hundred to get legal advice.

[StraferJack]

Each case is likely to be different but I had to go through exactly the same process ? and many of the factors appear to be similar

In my case, the agency had me with the same client for a long time, to the extent that the agency and I no longer saw eye to eye on ?priorities?. The once-strong tie between them and the client had also weakened.

So when the time came for me to try and move across, nobody was positioned to be ?helpful?

But rather than engage solicitors, I sat down and had a heart to heart with my agency and said they had earned X out of me over Y years, this was a rare opportunity and would they consider overlooking the 6 month clause in the contract

Not sure what would have happened had they played hard-ball, but they agreed to go along with it

[Mick Mac]

Does anyone know of any cases of an agency taking this up with a worker? or is it an idle threat?

[RosieH]

Thanks Strafer. Similar in the client / agency situation, but unfortunately in the me / agency situation, I've been here less than a year, and am on a freelance contract. So they're unlikely to look kindly on my move.

And Mick, that's what I'm wondering. I know they're not above suing generally (though clients for unpaid work that wasn't yet contracted, rather than staff).

Also, if they did sue me, I'm not sure what they could get - I'm pretty much penniless. But I don't know if they could sue to prevent my working with the client.

[DaveR]

"But I don't know if they could sue to prevent my working with the client."

Yes - the normal remedy for enforcing these type of clauses is an injunction. I think I may have misunderstood the reference to 'agency' in your original post as meaning a recruitment/temp agency, but it sounds like that's not the case, in which case it's not surprising that the client is not bound by any contractual terms. This type of term is known as a 'non-dealing' restriction (as opposed to non-compete and non-solicitation) and they are generally a bit more difficult to enforce because the risk to the employer's business is less obvious, but this is not my field so don't rely on that!

[alice]

a friend was in a similar position, moving from agency to a direct contract, the fee was a months salary which was avoided by being employed under a previous name. probably not a solution that would suit but it worked.

[ClareC]

Restrictive covenants such as this are enforceable provided reasonable.

The client can be sued despite no contractual clause, for inducing your breach of contract. For this to be valid they need actual knowledge but that can be as simple as the agency writing to them telling them.

[ClareC]

Happy to recommend a good employment lawyer