Employment Contract Terms

stephenni1971

I have a client who is considering leaving his current position ( he is on self employed contract ) and going it alone.

The existing contract has restrictions that he can not use contacts made thought current employment or work in this field in his area for 6 months.

I remember reading somewhere before that this was effectively unenforceable as would restrict the persons ability to earn a living from what they know.

Any further info or confirmation of this appreciated

Savvy_Sue

Sometimes it's enforceable, sometimes it's not. I'm not sure how you can be self employed on contract and have such a restriction, however.

stephenni1971

Thanks.

Any other opinions out there?

I was a little unsure myself whether someone who was self employed could have these restrictions placed on them.

paulwf

If you have some form of commercial insurance it probably comes with a legal helpline so you could give them a call. Otherwise give your solicitor a call, they should be able to give a brief answer.

I think the problem as much as anything would be proving it and then enforcing it if it, assuming it was legal. How do you prove who approached who and unless you have access to invoices (which you don't) proving a business relationship will be difficult. Then you'll need solicitors at £200 p/h to take action and so on.

eventer

The contacts part will be hard to prove - but the 'not work in this field in his area' part presumably won't be....

System

I would think that 'not work in this field in his area' would be unenforceable as it is preventing him working in his chosen trade.

Also who defines the area? Within 30 feet of your company or 300 miles?

Vomityspice

I (like Sue) am confused as to how a 'self-employed' person can be contractually restrained? It doesn't make sense?

Restraint clauses can be effective but their scope and duration are key points to consider. It might help if you can post the restrictive clauses and then the advice given would be better tailored to your circumstances. The case law (from memory ) is Faccenda Chicken v Fowler.

TBH it sound to be that actually he is a 'disguised employee' so the company would be better advised to consider the potential that your client could make an ET claim and they would be left to pay the fine, employers NI and employe's NI for the length of the 'contract'.

Might be a good bargaining point if they attempt to enforce any restrictive clauses in their contract?