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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 8974
Experience:  I have been practising for 30 years.
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I have a written Agreement consultancy services on a

Customer Question

I have a written Agreement for providing consultancy services on a freelance basis. I am classified in this document as an 'Associate' of the company I work for, who state that this is in effect a 'Contract'. In this document there is a non-compete clause for a period of two years, despite the fact that I informed the company that I did work with some of their competitors prior to signing this Agreement. Over 8 years later, I wish to cease working for this company, and revert to working within the same field once again.
During this 8 years, I was requested to do a separate type of work (supervision of other Associates work), and for this I did sign a specific Contract, rather than an Agreement. The non-compete clause on this Contract lasted only until the end of the Contract, which was over one year ago.
My question is, can the company I worked for prevent me from working in the line of work that I am qualified to do based on the Agreement signed in 2008? The type of work I do is UK wide.
Submitted: 9 months ago.
Category: Law
Customer: replied 9 months ago.
I also did work for some of their clients prior to joining the company. The work I carry out is on a case-by-case basis, with no agreement to give me work or for me to accept the work.
Expert:  F E Smith replied 9 months ago.

Noncompete clauses are enforceable but only in very limited circumstances. I can tell you now that a two-year noncompete clause would not be enforceable even if you had only signed the agreement last week. Three month would possibly be enforceable, six months also possibly and even 12 months probably not. 2 years certainly not. Even the three-month clause however is unlikely to be enforceable because it would stop you working nationwide. It was a 50 mile radius of something like that, there would be more chance of enforcing it.

It was a three month clause signed eight years ago it could potentially be enforceable now. If the company decide to take into court over this two-year clause, the court will not make the clause reasonable, it will simply strike it out.

They would be most unlikely to be able to enforce the clause. That doesn’t stop them threatening it and taking court action even though ultimately that court action may fail.

Can I clarify anything for you?

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Best wishes

FES.

F E Smith, Advocate
Category: Law
Satisfied Customers: 8974
Experience: I have been practising for 30 years.
F E Smith and other Law Specialists are ready to help you
Customer: replied 9 months ago.
Thank you for your reply, it is most helpful.
I also did work for some of their clients prior to joining the company. The work I carry out is on a case-by-case basis, with no agreement to give me work or for me to accept the work. Is this in effect a zero-hours contract? and what is the difference between an Agreement and a Contract. My understanding is that an Agreement is non legally enforceable, whereas a Contract is. Does this apply to work on a case-by-case basis.
Expert:  F E Smith replied 9 months ago.

There is no difference between a contract and an agreement legally. The words are interchangeable. In fact, quoting from the Dictionary of Law:

Contract: a legally binding agreement!

Many house purchase contracts are headed, “Agreement”. Correspondence is exchanged, “Subject to Contract”!

A case-by-case basis is in effect zero hours contract. No job, no work no payment.

Customer: replied 9 months ago.
Thank you very much.
Kind Regards
Expert:  F E Smith replied 9 months ago.

I am glad to help.

Best wishes

Customer: replied 9 months ago.
This zero contract hours contract (I.e. On a case by case basis would therefore cancel out the non-compete clause of the agreement thereby making that clause nil and void. Is that correct?
Customer: replied 9 months ago.
Sorry, zero hours contract
Expert:  F E Smith replied 9 months ago.

Not in my opinion it wouldn’t. The fact that you may be contracted on an ad hoc basis doesn’t stop them having a noncompete clause in respect of the work that you do, just on the occasions that you do it.

I just think that the clause, as it is, is unenforceable, it’s not to do with the a zero hours contract.

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