Restrictive Covenant
Is a restrictive covenant in a fixed term contract enforceable if it is non specific?
I am a Limited Company contractor working for a client via an Employment Agency. I have not opted out of SI3319.
My current contract is coming to an end and I have several options available to me. I am however, unsure as to which option to choose as I have a restrictive covenant in my Agency Contract. The text is as follows:
"The Contractor shall not, for a period of 6 (six) months after completion or termination of the Engagement, contract to provide services other than through the Agency to the Client or any customer of the client for whom the Contractor provided services during the Engagement".
I have been solicited by the client, the customer and the client's supplier to provide services directly as a Ltd Company and also in one instance as a direct employee. I have also the option to renew my contract with the Client via the Employment Agency.
The Employment Agency is aware of the interest shown by the Client, Customer & Supplier and has threatened to enforce the restrictive covenant if I was to work direct with any of them.
As a condition of me renewing my contract with the Agency, I have tried to change the restrictive covenant to a more specific restriction (i.e. client, project, location) rather than it being all encompassing as it is at present. They have refused to change the restriction stating it is a standard clause.
A colleague working on the same contract did terminate his contract with the Agency and is now contracted directly to the Supplier.
My questions are:
1. Is the restrictive covenant enforceable if it is non-specific?
2. Is it enforceable if I am solicited for work rather than me soliciting the Client etc.?
3. Is it enforceable if I work for the Supplier and not the Client or Customer as stated in the clause?
4. Is it enforceable if the Client and Customer have numerous areas of operation where I could be employed other than the specific contract/project which I am on at present?
5. As my colleague terminated his contract and is now contracted with the supplier and has not been pursued by the Employment Agency, has a precedent been set with regards to the enforcement of the clause?
Sean B