Non Compete clause in my contract - Can it be enforced?
Discussion
cathalferris said:
I would have expected that all terms of an employment contract become null and void once that contract has ended
A survivorship clause (optional) and express drafting of a period when that non-compete must be observed will overcome that issue without trying.cathalferris said:
then the previous employer must pay some consideration towards the ex-employee
Consideration would be the salary paid during the term.cathalferris said:
I always get those unenforceable statements removed from my employment contracts. I was told once that "ah, we wouldn't chase you on that" I replied with "then you've no problem removing it and there's no ambiguity then."
Fair enough. I agree that a non-compete needs to be reasonable to be enforceable, but reasonableness really only means 'not vexatious' rather than 'in the best interests of the employee'.cathalferris said:
I would have expected that all terms of an employment contract become null and void once that contract has ended, and that would include any no-compete clauses therein.
The Courts tend to disagree with you. I can provide a few cases if you want to check.But I do agree your approach to have them removed is preferable, or in the alternative negotiate a period of garden leave which equates to the non-compete period of time.
Lurking Lawyer said:
This.
Such provisions are enforceable in principle subject to them being reasonable - and that's heavily dependent on the facts of the case.
Be wary of placing too much weight on well-intentioned advice from partially-informed contributors on here. There has been a lot of unmitigated rubbish posted on threads on this topic in the past.
I'm no legal expert , but the obvious thing , to my mind , would be to speak to your prospective new boss and explain the problem - depending on how long the restriction is for , see if he can be flexible about your start date .Such provisions are enforceable in principle subject to them being reasonable - and that's heavily dependent on the facts of the case.
Be wary of placing too much weight on well-intentioned advice from partially-informed contributors on here. There has been a lot of unmitigated rubbish posted on threads on this topic in the past.
Also , do you have annual leave available ? You might be able to use that as time between jobs ( once out the door you would no longer be privy to inside information , but would still be paid for that time ) ?
Lastly , a lot depends on your relationship with your existing boss , but if on good terms ( you'd have to be putting your notice in anyway ) tell him where you are going but promise to be a good boy and that your own moral code & integrity means you wouldn't use insider information improperly ( which of course you wouldn't ) and see if he will relax the rule .
Sometimes people are straight and decent if you are the same with them .
cathalferris said:
I would have expected that all terms of an employment contract become null and void once that contract has ended, and that would include any no-compete clauses therein. If the terms are to be enforceable after the employment term has ended, then the previous employer must pay some consideration towards the ex-employee, otherwise the ex-employee would be free to do as he wishes.
I always get those unenforceable statements removed from my employment contracts. I was told once that "ah, we wouldn't chase you on that" I replied with "then you've no problem removing it and there's no ambiguity then."
I detest the majority of American company work practices that are bleeding across into European working conditions, and more than a few are directly against the local employment regulations. The HR depts tend to make the assumption that the people signing contracts are uneducated about what the contracts can mean, and I've also learned the hard way that the ultimate purpose of HR in conpanies is to protect the company from the employees and employment legislation.
It is ironic that you refer to people being uneducated when your post indicates that you are very ill informed about this area of the law. Post termination restrictions are an English invention, not an American one. They are often enforceable, subject always to the test of reasonableness. The employer provides consideration when the clause is agreed and does not need to pay extra to enforce a reasonable restriction.I always get those unenforceable statements removed from my employment contracts. I was told once that "ah, we wouldn't chase you on that" I replied with "then you've no problem removing it and there's no ambiguity then."
I detest the majority of American company work practices that are bleeding across into European working conditions, and more than a few are directly against the local employment regulations. The HR depts tend to make the assumption that the people signing contracts are uneducated about what the contracts can mean, and I've also learned the hard way that the ultimate purpose of HR in conpanies is to protect the company from the employees and employment legislation.
cathalferris said:
I would have expected that all terms of an employment contract become null and void once that contract has ended, and that would include any no-compete clauses therein. If the terms are to be enforceable after the employment term has ended, then the previous employer must pay some consideration towards the ex-employee, otherwise the ex-employee would be free to do as he wishes.
I always get those unenforceable statements removed from my employment contracts. I was told once that "ah, we wouldn't chase you on that" I replied with "then you've no problem removing it and there's no ambiguity then."
I detest the majority of American company work practices that are bleeding across into European working conditions, and more than a few are directly against the local employment regulations. The HR depts tend to make the assumption that the people signing contracts are uneducated about what the contracts can mean, and I've also learned the hard way that the ultimate purpose of HR in conpanies is to protect the company from the employees and employment legislation.
You'd be wrong.I always get those unenforceable statements removed from my employment contracts. I was told once that "ah, we wouldn't chase you on that" I replied with "then you've no problem removing it and there's no ambiguity then."
I detest the majority of American company work practices that are bleeding across into European working conditions, and more than a few are directly against the local employment regulations. The HR depts tend to make the assumption that the people signing contracts are uneducated about what the contracts can mean, and I've also learned the hard way that the ultimate purpose of HR in conpanies is to protect the company from the employees and employment legislation.
Breadvan72 said:
It is ironic that you refer to people being uneducated when your post indicates that you are very ill informed about this area of the law. Post termination restrictions are an English invention, not an American one. They are often enforceable, subject always to the test of reasonableness. The employer provides consideration when the clause is agreed and does not need to pay extra to enforce a reasonable restriction.
Yes, I know I'm no expert on the area! At least I have no trouble admitting that in reality, as I know that my little knowledge in the area is a dangerous thing. I have always taken professional advice on the employment stuff, having had previous employers both attempt to screw me over and break the law in the process.. But that's a rant for another time and place.Thanks to everyone that took the time to provide reasonable explanations/refutations, as that's very useful for pointers to look at in the future when I get a chance. Add to that, if there are differences between the Irish and UK situations (I'm based in Ireland) that would also be useful for me to know. Certainly better responses than the "you'd be wrong" answer without any further explanation as given above..
Apologies if I've muddied the waters on the point here!
The law of Ireland on this subject is pretty much the same as the law of England and Wales.
I am supposed to be giving a talk on the subject at University College, Dublin in the next few months, but am not sure when, and I haven't written the thing yet (probably won't until the week before, as per usual).
I am supposed to be giving a talk on the subject at University College, Dublin in the next few months, but am not sure when, and I haven't written the thing yet (probably won't until the week before, as per usual).
Breadvan72 said:
The law of Ireland on this subject is pretty much the same as the law of England and Wales.
I am supposed to be giving a talk on the subject at University College, Dublin in the next few months, but am not sure when, and I haven't written the thing yet (probably won't until the week before, as per usual).
Once it is written and talked, any chance of posting a link to it? I'm sure it would be of interest to several of us here.I am supposed to be giving a talk on the subject at University College, Dublin in the next few months, but am not sure when, and I haven't written the thing yet (probably won't until the week before, as per usual).
In pictogram form, just becos :
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