Contractors' Questions: Will going direct breach the non-compete clause?

Contractor’s Question: My contract via an agency ends in August and my end-user wants to give me ad-hoc freelance work afterwards. Will this breach my contract’s restrictive/non-compete clause?

Bear in mind, the two are completely different. One is a full-time in-house work; the other is ad-hoc remote work. There’s not even a way the agency would ever know if I did the work directly! Please advise; I don't wish to put the end-user or myself in legal bother.

Expert’s Answer: From what you say, it appears that you worked for a client through a recruitment agency on an in-house full-time contract that is about to end. It also appears that your contract has clauses restricting the ability for you to work directly with the client after the contract ends.

It is also likely that your client has similar clauses in place with the agency in their contract that might either restrict them from employing you directly or place an obligation on them to pay commission to the agency if they did employ you, or both.

The question you ask is whether, because the work you intend to do is ad-hoc remote work, the restrictions do not apply. The thing for you to look at is the precise wording of the restriction (and your client should do the same). Does it just restrict work of the same type to the work you have already done or is it more general?

If it went to court, a judge would consider the meaning of the clause in the light of the overall contractual relationship. The clause is there to protect the agency’s commission from a client employing you directly and therefore bypassing them, which appears to be the situation here. It is unlikely (if the clause is written in general terms), that the agency were only concerned with losing commission if you did full-time in-house work.

Therefore, it will largely depend on the precise wording of the restriction and whether it only prevents work of the same or similar type. Good luck!

The expert was solicitor Gary Cousins, founder of legal advisory Cousins Business Law.

Monday 26th Jun 2017
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Written by Simon Moore

Simon writes impartial news and engaging features for the contractor industry, covering, IR35, the loan charge and general tax and legislation.
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