Hi all,

I work for a consulting company and I've decided to set up my own business, but I might have an issue with my current employer.

I've been working for many years with customers in a big pharma company, and they are all willing to keep working directly with my new company. Furthermore I got full endorsment from the purchasing department, which is an essential condition for making business together.

The problem is my current employer, the consultant company I'm working at. When I announced the decision to resign, I also proposed to make business together, I would provide the opportunities, they would find the staff and the profits would be split accordingly.
Anyway they reacted coldly, invoking the non-concurrenz agreement and saying that if I wanted to keep working for the current customer, I would have to pay them a big fee.

I'm aware of all of it, but I also know that it is my right to leave an employer if I want, and if the only opportunity I have is to work with the current customer, I have the right to provide for my living and not ask for social support.
And I imagine also that the consulting firm will not be very willing to start a legal issue with the customer, fearing they would be blacklisted and loose the chance to work for them forever.

So all in all it seems to me I've hit a grey zone, and would really appreciate any comment and advice from someone experienced in the matter.

Thank you very much in advance!
Dylan

I've forgotten to mention:
I hold a C-permit and have a double citizenship (US and EU).

What does your contract with the company say?

I would imagine they are not going to sue the client. It's you they are going to sue. I don't know what your legal standing is.

There is a very long thread on here called something like "are non-complete clauses enforceable". Search for that thread. It may help you.

Thank you Mia,

my contract explicitly mention the non-competition clause, of course, I don't have it here but I will post the exact wording.

If they want to sue me I can either face the case or surrender and go undercovered for some time (or to another fictional customer).
Bottom point: the big firm will support me and definitely blacklist my current employer as retailation if they make troubles.

The point is that I don't want to get to this point, and I'm trying to explain to my current employer that we can make business together, even more efficiently (for some reasons they didn't react fast when I send them some prospects so they lost the opportunity and I lost a fat bonus).

And in order to convince them, I'd like if I negotiate from a strong position or not.

You could work for another client for the stated period of time or you could negotiate a smaller fee.

I do find it a bit hard to believe that your current client with get in the middle of this type of drama unless it was for them to just get rid of your employer. If they remove them from their list of suppliers you could be in a better position.

Anyway this is just speculation on my part. Check out that other thread I mentioned. I think they were having quite long conversation about this topic.

I wouldn't put money on it. You have a non-compete cause and you will be sued. At the first sign of trouble I think you'll find the big firm will stay with the current situation rather than ditch that and go with you.

I don't think the client want any extra hassle and be honest unless your skill is like unicorn horn, I doubt if they will stick up for you.

I was in a situation many many years ago, my CV was being put to a MNC for a position as freelancer, I did not get that job and another agency then put my CV to the same client but different site/department for another position; I got that job. There is like 3 months minimum in between these 2 submitions. 6 months down the line, the other department need someone to fill a different post and they wanted me as I am already onsite and I know the operation etc, blah blah blah.. and of course they did have the 1st agency submitting CV etc and then the 1st agency found out I was on site, they kicked up a HUGE fuss and at the end I did not get the other post. The client just do not want the hassle and they did not take anyone from them ever again.

The point from this is:
1. Client do not want hassle
2. you have signed non-competitive clause and you have been working with that particular client
3. some consultancy might even worded the clause that will exclude you to work with ANY of their clients for a period of time

In view of all these, if you did not bring this to their attention, you *might* get away with it if they don't find out. Now that you have and you are setting up on your own and not joining another consultancy that might be willing to buy your contract out with your current employer to get the revenue stream. I personally will stay well clear of setting up on my own and working for the same client unless you have a lawyer in the family that is willing to do free legal work for you.

Hi all,

thank you very much for your advices and experiences, as a matter of fact I do have the possibility to work with a second customer for one year, and when I explained this is what I will have to do to comply with the non-competition clause, the first customer proposed to work "stealth" with her.
Anyway I got the point: I have signed the clause and it's wise not to risk to be sued and incur in a big hassle.

But, to my understanding, I've found in this forum many threads saying that the non-comp clause is simply not enforceable as it violates the primary right of an individual to earn money for living.
Also, in another Swiss company I had worked before, some people left to go to the customer, and when I wonder about that with my boss he stated that legally they could do nothing concretely.

Where does the truth stay then?

A general non competioion clause probably won't be enforceable, however directly taking the piss is another matter.

I am not sure I would want to go into business with someone who had just shafted their employeer.

You missed option #3: Negotiate a lower fee. That would be fair for both parties I would think.

Anyway, do you have legal insurance? If so why not ask them.

Good luck.

I suspect they will run a mile.

May be registrating a bearer shares AG and you act just as a resident director will prevent any claims ?

That was my first proposal, but instead of paying money I have proposed to join our complementary capacities, i.e. I would use my network to present prospects, they would provide the right staff, and the profit would be shared.

To me this is a win-win situation: they are weak in networking and sales but have staff, I'm weak in staffing (being by myself) but have a big network, I appreciate them, they appreciate me, but the current situation is inefficient and not rewarding. Why not to put the two together?

The first reaction was a refusal, so now I'm gonna try harder to convince them.
But if they don't change their mind, I will eventually go with the second company (which is not even a customer yet, so no clause infringment), but the current customer will be left unsupported (in reply to some forum users, yes, my skills are rather specific and hard to build in short time), thus, and she said that she will remember who did the big fuss.

At the end of the day, is it really wise such a behaviour? Who will be the biggest looser? Clearly, when I will have another business opportunities, I will contact other consulting companies, never my current one!

I don't think I have "shafted" them more than they have shafted me, when not being able to staff the right people for the opportunities I've build (and worked for), making me to miss the bonus.

Thank you Amaras, could you please elaborate a bit on it?

Hi,

My initial advise would be not to post this type of content on a forum if you are thinking about doing it. My second advice is you should really speak to a Swiss lawyer so he can explain the extent and scope of the agreement, applicable legislation, dispute resolution, competent forum etc...(not sure if the company is Swiss or International).

Good luck!

JT

PS; It doesnt matter if you register one company or ten vertical different holdings, you would still be liable if you breach the terms of the contract (the veil doctrine).

The bearer shares AG belongs to any one who holds shares, that is why it’s even considered as foreigner controlled by Lex Koller for example. But otherwise it’s normal Swiss AG. The only point is that 100k must be fully paid in during the registration process, because it can’t be semi paid shares. Of course initially a person or legal entity is depositing that amount, and that can be discovered if court rule so,( that is also almost impossible), but some one can do it on your behalf, you have the shares – you are the owner, and only you will know that.

From legal point of view you will be employed as resident director. I think this can be a solution.

Thank you Amaras,
but I suppose that current employee would sue me for infringing the clause, not the bearer shaers AG company, in which case the whole point would be useless.
I think I will speak with a lawyer (any advise for an experienced and reasonably priced one in Basel?) and will try to negotiate based on his advices.
At the end, if I will have to leave unsupported my current customer, it will bite me, the customer and especially, in the strategical term, my current company.

Thank you Johntagg,
I will follow your advise and contact a lawyer (any advise for Basel?).
I hope I will be able to solve the issue with a reasonable negotiation, I've developed a very friendly relationship with my customer and I would hate if I will be forced to leave her unsupported because of this clause (of course I've already agreed with her some countermeasures, which following your advice I won't comment further)

I meant negotiate a lower fee. They clearly aren't interested in your proposal and will want a fee. Negotiate a lower fee. And if the client really wants/needs you then see if the client will pay it or part of it.