Very tricky question about contractor, subcontractor, and 3rd parties.

[allisgood1]

I don't even know how to explain it but I'll try:

I have my own business. I subcontract people (tutors) to work with families who have contracted my business.

One subcontractor (who has a contract with me) has handed in her notice, and has said she wishes to "work independently" with someone who contracts me.

I have said this isn't possible. Am I right?

I'm not a lawyer, but did you have any express restrictive covenant clauses in your contract with the subcontractor, banning her from doing that?

Does your contract with the subcontractor have a restrictive covenant in it? Here. I'm not a lawyer but I think that without one your subcontractor can do what she wants.

Xpost :o

The only covenant is that if the client leaves the business the subcontractor can't work with them.

If the client still contracts me how can this person do that?

Also she isn't my employee. She's self employed contracted to my business.

time to tighten up your sub contractor terms and conditions.

what if your client remains with you, and also contracts directly with the tutor? it doesn't sound as though you could stop them.

but if your client does still contract you, then you could get an injunction to stop the tutor working with them, and compensation of any profit that the tutor makes.

Does anyone know if I can add restrictive covenants when the tutor is self employed/contracted by my business? Or do I have to be employing them to add those?

You don't need to be employing them. A basic non-solicit clause is what you need. However, if your client wants to contract with them is there anything stopping your client from doing so? Is it in their interests to do so bearing in mind they currently have a contract for you to provide those services? It could be a non-issue if the answer to the latter question is "no".

Mycat: at the moment clients do not have a notice period because for the nature of my business that wouldn't be ethical. What I need is a clause stating that the subcontractor cannot enter into work with a client (previous or ex) for 12 months from the end of their services with me, regardless of who does the approaching.

Generally, no, it wouldn't be an issue. But it could be with some people, especially if they have to pay the tutor less without my involvement.

I have now edited my contracts. Is anyone qualified to take a look for me before I finalize and have existing subcontractors sign?

You should seek legal advice to redraft your contract. Restrictions on trade are difficult to enforce. If I remember my contract law they should be as least restrictive as possible (blue pen test) to remove unnecessarily constraining clauses.