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UKSolicitorJA, Solicitor
Category: UK Employment Law
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Experience:  solicitor
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I have a similar position to the one on this thread. I was

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I have a similar position to the one on this thread. I was working for Company A through Agency B through a series of 3 month contract extensions for 13 months until end January. While I was there Agency B lost their preferred supplier status. An interim arrangement was put in place for the final month extension. I have now been asked by Company A if I can do 3 months work with them, with a different division on a different project, but through Agency C, their new preferred supplier. It turns out my contracts with Agency A had a 6m restrictive covenant, and Company A want Agency B to sign a waiver for the remainder. However Agency B are refusing to do so, so as it stands I will lose the work. Agency B have found me nothing in the interim. No "poaching" has occurred. It looks to me as if this clause is being enforced for a scenario for which it was never intended?

Could you please set out the precise wording of the restrictive covenant here?
Customer: replied 4 years ago.

I think is as follows (from my copy of last contract)

2.3. The Consultancy shall not and shall procure that any Staff provided in the performance of the Consultancy Services in the course of the Assignment shall not, whether directly or indirectly through any company, partnership or person, solicit nor enter into any contract with the Client or with any third party introduced to the Consultancy or any Staff by the Client, to provide any services of the same or a similar nature to those required in the course of the Assignment during the Assignment Period or during the twelve months following the Assignment period without Arrows Group’s prior written consent, which consent may be withheld in Arrows Group’s absolute discretion or granted, subject to any conditions Arrows Group may wish to impose.


Two issues:

the obligation is not on your but your limited company (the consultancy), so Agency B would need to go after your limited company, not you personally if you breach the covenant;

the covenant would in my opinion be unenforceable in the courts as being too wide and an illegal restraint of trade.

I would just ignore Agency B and carry on the work through Agency C.

Hope this helps
Customer: replied 4 years ago.

Thanks. Unfortunately I don't think Company A are prepared to take the risk, as I have an inkling they may already be in dispute with Agency B. So I appear to be between a rock and a hard place. Could I propose to Company A some kind of letter/document that put all the liability to my company in case of any action?

You may do so by giving them am indemnity along the following lines:

The consultancy will indemnify and keep co. A indemnified at all times against any claim, action or demand which may arise a result of engaging your services through Agency c.

You could also go to court to seek an order to the effect that you are not bound by the restrictive covenant.

Hope this helps-please leave feedback
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