How enforceable are competition clauses in a contract

[dawg]

Ive been working part time for a photography company for some time now as a freelance photographer on a commission basis under contract so I could access their equipment and venues. One of the clauses in the contract states I may not work for a competitor or be affiliated with one within 360 days of leaving the company.

Now the main reason im leaving is due to a change in management, the guy who took over has given all the work to his friends or people who have been employed longer than me and for at least two months ive had no work, or been offered work that does not even pay for fuel costs to get to the venue. Sounds petty I know, and its not like I can prove this to be the case but that's whats happened so all I can do is leave to look for work elsewhere.

 

What I need to know is, is that clause enforceable under these conditions?

[Emmzzi]

If you are freelance ie self employed? Then how can you leave the company? I don't really understand the relationship here. Is it kinda like hiring a chair in a hair salon?

 

Does the clause have a goegraphic limit in it?

[dawg]

Yes im self employed, the relationship is I use their printing equipment and they supply the stock for me to sell within the venue so there's no outlay to me and I have access to their venues, which other photographers wouldn't be allowed into.

 

There is no geographic limit

[Queens_king]

Actually, if you are a freelance then you may be able to claim this clause as a "Restraint Of Trade" but I would certainly seek legal advise as employment laws are quite complex

[Emmzzi]

If you aren't employed they they can't enforce a clause concerning the employer/ employee relationship. You can already find your own work anywhere - otherwise they would be an employer. Have they been paying your tax and NI? If not, ignore them.

[dawg]

No, it actually states in the contract that I work self employed as an independent contractor and that im responsible for my own tax, NI and public liability insurance.

[Emmzzi]

Then I do not think they can have it both ways. If you do not have the proetction of an employee neither do you have the responsibilities. One measure of self employment is if you can choose your own clients....

[becky2585]

If the agreement is drafted tightly enough, they can still enforce it regardless of you being self employed or an employee, so I would exercise caution.

 

Without reading the covenants themselves, though, it's impossible to advise. Legally speaking, you need to act as though the restraints of trade are enforceable and then try and read into them how they aren't!

[san_d]

Then I do not think they can have it both ways. If you do not have the proetction of an employee neither do you have the responsibilities. One measure of self employment is if you can choose your own clients....

 

While I have never been self employed myself, when I was in IT all my self employed colleagues had a very tight competition clause in their contract. However in IT this makes sense as we were dealing with trade secrets while in photography it's all about not stealing clients.

 

I would be curious to know what penalties would be applied if you did work for a competitor. If there are no penalties, this doesn't even make sense.

[dawg]

There is no mention of penalties, its just states that im not allowed to work for an employer or contractor whose business conflicts with theirs, including self owned businesses within 360 days of the expiration date of the contract. I assume the expiration date is when my notice period is up.

[dawg]

The contract was very vague to start with. They actually amended it by hand and initialed the change before i signed as they didn't state what their business actually was

 

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[monkeychicken]

from what you have explained, I wouldn't take too much notice of the contract. If youre self-employed, they cannot restrain your trade, as emmzzi advised above. It will cost them a pretty penny to action it and anyway, I doubt very much the particular clause will stand- it will most likely ruled to be an unfair contract term.