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Non-compete clause.. enforceable in this case?


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Hello Legal Eagles,

 

I am news writer at a company and have been offered a job (at a junior role) at one of the rival companies of my current employer.

I am the juniormost in the office that i work in and have NO access to any marketing lists, or client lists, or software codes whatsoever.

I have worked with my current employer for just nine months.

My contract has a six month non-compete clause. I want to know how enforceable is this contract under UK law given the above information.

Specifically, point 14.1.1.

The relevant clause in the contract is as below..

 

-----

14 Post Termination Restrictions

 

14.1 In consideration of the Company enter into this Agreement you hereby undertake that so long as this Agreement remains in force and for a period of six months from the date on which it is terminated you shall not without the prior written consent of the Company :-

14.1.1 either solely or jointly with or on behalf of any person, firm or company directly or indirectly provide the provision of any consultancy agency or other services in competition with the services or goods supplied by the Company;

14.1.2 solicit the custom of any person, firm or company who is or has at any time during the continuance of this Agreement been a customer of the Company for the purposes of offering to that person firm or company goods or services similar to or competing with those of the business carried on by the Company;

or

14.1.3 employ any person who is or at any time in the preceding six months was an employee of the Company

------------

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Complicated area, but in general, restrictive covenants are unenforceable where they serve little purpose in protecting business interests or last longer than is necessary.

 

Therefore, if an employer were to build a restriction such as this into a contract, then he would have to demonstrate that the restriction were sufficiently long so as to enable him to amend, remove or otherwise protect HIS property in order that it would be of no use to you in moving to a competitor. He would also have to demonstrate that the restriction was necessary in order to prevent something which you possess (in this case knowledge) being of benefit to the new employer. The question therefore is whether everything which you possess about your current employer's business will be forgotten or no longer of use after six months, and whether if there is a need to protect information, passwords etc, that this will take six months to achieve. I note also that your restrictive clause does not mention the area in which you agree not to operate after leaving, nor the nature of the information or other property in your possession which the covenant seeks to protect - a restrictive covenant stands a better chance of being enforceable where it is sufficiently specific to the individual employee as to be relevant.

 

Even where there is a genuine need for a six month restriction, and if this were to be deemed enforceable, then the current employer should also make provision for six months salary or the equivalent gardening leave, or else you have a good counter claim for the denial of employment opportunity.

Any advice given is done so on the assumption that recipients will also take professional advice where appropriate.

 

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re: sidewinder

Thank you very much for the reply.

i guess what you are saying makes sense, in terms of the clause that it is too broad and does not specify which department, section or particular information is being protected or they want to protect.

as such i am the juniormost in the office and was the most recent person to have joined and have absolutely no access to any secrets, proprietry info or work in any other departments or roles...apart from my role of plain simple rewriting press releases etc.

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Then you should be free from the clause which binds you, however you may either want to sound out the current employer as to whether they are prepared to waive the covenant, or take a brief consultation with a lawyer for a professional opinion.

Any advice given is done so on the assumption that recipients will also take professional advice where appropriate.

 

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I have sounded out my current employer and have asked them to waive the clause. Just want to keep things nice and leave on a positive, good note. They want me to give them some of my market contacts (NONE of which were given to me by them, or none of the relationships which were created during my time here) for the waiver, which is just for the parent company and not for the specific unit (that falls under the parent company) that i have an offer from.

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