Getting round a badly-worded restriction clause

I have been asked to post this query by a freelancer who wishes to remain anonymous. I am also including my thoughts on the answer but would welcome input from a lawyer.

Query

Hello. I have a short-term contract via an agency. In the contract there is a clause whereby it seeks to restrict me from performing work for the client direct for a period of 6 months after the termination date of the contract. However the clause is badly worded it says, "The Consultancy shall not offer its services" it does not say "and or consultant" As the consultancy i.e. company is a separate legal entity from the consultant i.e. me. Providing I provide services to the client via another consultancy i.e. a different company as far as I can see there has been no breach of contract? If you were pursuing this as the legal advisor for the agency would you chase it if I put up the above defence. i.e. what do you think my chances are? Thank you in advance.

KGM response

in my view there are probably two issues:

1] In your contract I suspect that, as you suggest, if your services were offered to your end client by another company then it might be pretty difficult for the agency to take any action under this contract - unless there is any clause in the contract which says that 'consultancy' also means the employees of the consultancy or which says that the consultancy will ensure that its employees abide by the terms of the contract.

2] However, the agency will also have a contract with the client and this may well have a similar clause that talks in terms of both the 'consultancy' and the 'consultant'. So potentially it's your end client who probably has the greater risk if you go direct, whether via your present company or a new company.

I hope this helps.

Kevin Miller FCA