working for a competitor....

[anonymous-user]

I had a debate with Breadvan a while ago about how I thought these clauses were draconian and pretty well unenforceable save for some specific circumstance.

He was, of course, correct and was able to link to a number of cases where the court supported the contract.

However, it all seems a bit strong to me unless you were very senior or received a specific payment/pay rise in return for signing them.

[SickFish]

desolate said:

I had a debate with Breadvan a while ago about how I thought these clauses were draconian and pretty well unenforceable save for some specific circumstance.

He was, of course, correct and was able to link to a number of cases where the court supported the contract.

However, it all seems a bit strong to me unless you were very senior or received a specific payment/pay rise in return for signing them.

Not senior at all, not even management

[anonymous-user]

SickFish said:

Not senior at all, not even management

Depends whether you are up for a fight or not.

If they want to enforce them it will be a PITA even if you win.

If you are of a "fk you" mindset then litigation can be quite fun, but if you are not it is stressful and potentially expensive.

So one option would be to speak to your current employer and see if they will release the covenants. Another option would be to speak to the new employer and see if they will advise and potentially indemnify you.

[SickFish]

desolate said:

Depends whether you are up for a fight or not.

If they want to enforce them it will be a PITA even if you win.

If you are of a "fk you" mindset then litigation can be quite fun, but if you are not it is stressful and potentially expensive.

So one option would be to speak to your current employer and see if they will release the covenants. Another option would be to speak to the new employer and see if they will advise and potentially indemnify you.

Having been through the litigation procedure before, albeit it was the OH and was a case of sexual discrimination, it doesn't phase me and we are covered sufficiently by our house insurance.

I may have a quiet word with the new employer and hear his thoughts.

[Jasandjules]

That looks a touch wide ranging to me. But you should go and get insured advice as to your next steps.

[Steve H]

Jasandjules said:

That looks a touch wide ranging to me.

This is the key isn't it? My understanding is that any such clauses must be reasonable which is probably why they have put the relatively short time limits and clarified the things that the clauses are not supposed to restrict at the bottom of the page.

My best guess, if you could demonstrate you were complying with clauses A and B it might be hard to justify C and D, if you started phoning your old customers on your first day at the new firm your old employers may have a reasonable case.

[SickFish]

Bit of a thread resurrection here, after going over my contract last night, the contract with the restrictive covenants are in a contract that eludes to my role previous to a role change in January.

I never received an updated contract for my change in role in January - purely a headed letter confirming the change.

Does this change anything at all?

In my eyes if they fight me and refer back to the contract, I can riposte with something along the lines of "But that contract is not for THIS role"

Or am I barking up the wrong tree here?

[anonymous-user]

SickFish said:

Or am I barking up the wrong tree here?

almost certainly yes.

[SickFish]

desolate said:

SickFish said:

Or am I barking up the wrong tree here?

almost certainly yes.

So, how can they hold me to a clause within a contract that no longer refers to the role I am doing?

[anonymous-user]

as we have said you need to speak to an employment lawyer.

but it is likely that your contract will enable them to vary your duties.

Plus it is also possible that by staying silent you have, by implication, accepted the terms of the contract in your new role.

But i am not an employment lawyer, just an employer.

So it's just friendly advice.

If you fancy an argument just go for it and see what happens!

[SickFish]

This whole thing is starting to get to me.

So are they saying that if/ when I want to leave I have to pick a totally different industry to work in and start again? I am by no means a senior employee, but then again, I am not a junior employee.

If I was to start in a different industry my particular industry knowledge becomes largely irrelevant and I would have to start again as it were, probably on a lower salary!!!

Edited by SickFish on Thursday 21st May 16:25

[Munter]

SickFish said:

This whole thing is starting to get to me.

So are they saying that if/ when I want to leave I have to pick a totally different industry to work in and start again? I am by no means a senior employee, but then again, I am not a junior employee.

If I was to start in a different industry my particular industry knowledge becomes largely irrelevant and I would have to start again as it were, probably on a lower salary!!!

Edited by SickFish on Thursday 21st May 15:48

I think the answer is:
You have to take a 6 month gap between employers, but your existing employer has to pay you to enforce that. (Gardening leave) Otherwise you're free to do what you want. But a Lawyer is likely needed to confirm your exact situation as opposed to general concepts based on assumptions.

Or you....could discuss it with your current employer....get a pay rise...and stay.... (risky)

[SickFish]

I have found this link and it seems the situation is very similar to mine, although I did not sign anything when my role changed significantly... Thoughts???

[SickFish]

Munter said:

SickFish said:

This whole thing is starting to get to me.

So are they saying that if/ when I want to leave I have to pick a totally different industry to work in and start again? I am by no means a senior employee, but then again, I am not a junior employee.

If I was to start in a different industry my particular industry knowledge becomes largely irrelevant and I would have to start again as it were, probably on a lower salary!!!

Edited by SickFish on Thursday 21st May 15:48

I think the answer is:
You have to take a 6 month gap between employers, but your existing employer has to pay you to enforce that. (Gardening leave) Otherwise you're free to do what you want. But a Lawyer is likely needed to confirm your exact situation as opposed to general concepts based on assumptions.

Or you....could discuss it with your current employer....get a pay rise...and stay.... (risky)

That is interesting, I though that I was expected to find work in a different sector for ~6 months.... hmmmm

[Munter]

SickFish said:

That is interesting, I though that I was expected to find work in a different sector for ~6 months.... hmmmm

A)Talk to a lawyer to get real facts
but
B)The way it was explained to me was along the lines of, they can't stop you from being paid to work in your chosen field. But they can pay you not to work for someone else for a while to protect their interests.

Of course you could quit, work outside your chosen field for 6 months, then go and work for the competitor. Your employer would have to accept that because it doesn't cost them anything and the contract is obeyed.

[SickFish]

swerni said:

SickFish said:

desolate said:

SickFish said:

Or am I barking up the wrong tree here?

almost certainly yes.

So, how can they hold me to a clause within a contract that no longer refers to the role I am doing?

It's a standard contract which everyone in the company will sign, you're role change is irrelevant

Ah cack.... I though that as the contract specifically names my (previous) role then for it to be enforceable it would need to be updated with my current role

[anonymous-user]

swerni said:

Did you actually read that article?.
They took over half the team, this is one person

Irrelevant

In certain circumstances they definitely can stop you working for a competitor.

In the real world, it is very difficult to do so.

I lost a long online debate with Breadvan about this a while ago - he was able to give specific examples of where this sort of thing is enforced even relating to a junior position.
I have quite a lot of "real world" experience in insurance, law and sports rep and it is very difficult to win as the employer without a seriously well organised row of ducks.

[PoleDriver]

Unless you change the kind of work you do it's extremely difficult NOT to end up working for a competitor when you chnage jobs!

[SickFish]

PoleDriver said:

Unless you change the kind of work you do it's extremely difficult NOT to end up working for a competitor when you chnage jobs!

My thoughts exactly! The industry I'm in is rather specialised and very incestuous

[anonymous-user]

SickFish said:

My thoughts exactly! The industry I'm in is rather specialised and very incestuous

which makes it more likely that it is enforceable.

The link you gave gives a pretty good idea of what the courts look for.

In any event spend a couple of quid and get a decent lawyer to look. If it's a slam dunk the lawyer will probably tell you for free.