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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46783
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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Hello, I have a two part question, first one relates to

Customer Question

Hello,

I have a two part question, first one relates to a resignation letter: i) reduction of notice period and ii)waiver of non-compete clause with my existing employer.

The second question refers to my new potential employer's offer letter, terms of employment and background check.

So let me address the 1st Query:

1. (i) I work for pharmaceutical biotech company. My current employment contract requires me to give 90 days notice [3 months]. My new potential employer wishes me to start on 5th of May 2014. They are aware of my notice period and nothing was promised from my end that I would be able to start earlier. I did say I would try to negotiate and reduce my notice period but there are no guarantees and if I am subjected to work through my 3 months notice they would understand and honour that. My question really is how do I approach that in my resignation letter; do I simply ask them in my letter to reduce my notice period becuase I am starting with new employer on 5th of May or do I simply state in my letter I have non-negotiable start date and I need to be released before that date?

(ii) The second part of my first query relates to the second point I would like to bring into the resignation letter and that is waiver of non-compete obligation. The summary of the clause is that during my employment and for a Restricted Period of 6 months after the termination howsoever caused that I will not without prior written approval of the company [such approval shall not be unreasonably withheld] in any capacity directly or indirectly compete with the company; carry on, set up, be employed engaged or interested in a business anywhere in the UK which is in competition with the business of the company or any group within which I was directly involved. The provisions of this clause shall not prevent me from holding 3% of the total issued share capital of any company ...[i don't have that anyway] ... and in addition shall not prohibit the seeking or doing of business not in direct or indirect competition with the business of the company..

My question to this part is, is it worthwhile me even raising this in my resignation letter since the company I am intend on going to is pharmaceutical company but are not a direct competitor and do not even develop the same product? Furthermore, I am not in sales or finance or new business or a senior role and don't have access to the information which could damage business interest of the current company. My intuition and common sense command that I raise it in my resignation letter before they do. The reason I am saying this I have no intention of telling them where I am going. The only information I am willing to share is to tell them that it is a pharma company. I have no obligation to tell them where I am going. Potentially they would hear where I am if they approach them for a reference. However, the new employer is doing previous reference checking through a third party.

2. My second query/question relates to a potential new employer. I accepted the financial offer subject to contract of course and now they sent me the pack containing terms of employment and amongst that a letter informing me that a third party backcheck will be asking me to complete an online form which will allow them to obtain the following: previous addresses 6 years, educational history, previous employment and references 5 years history, passport right to work and credit check.

Now most of these are fine however, I have an issue with a credit check. I am not concerned with the content of the report, there is nothing to hide, however, I am concerned with a data privacy and how will this be handled and who will handle it and who will be viewing this information [in what format and so on]. This is common in the US but for UK this is a first for me that a prospective employer is asking for a credit check. Whilst I understand their reasons, risk management and compliance, they are using the high level check. They did state all of their new employees are required to undergo this level of check. My other concern is a high risk of identity fraud if data falls into wrong hands and gross invasion of privacy. In addition they did not enclose a consent form unless there will be one in their email invitation.

My question, is this allowed and how do I politely comply and protect myself at the same time?

My next question or concern relates to their terms and conditions and references. They state that should they not receive satisfactory references they will terminate my employment. This immediately puts me in a very unsettling situation of when do I actually resign. I am not concerned about referees but this is rather harsh. Would it be silly of me to say I am unable to resign until they can confirm they have everything? Thank You
Submitted: 3 years ago.
Category: Employment Law
Expert:  Ben Jones replied 3 years ago.

Ben Jones : Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today. I will get my response ready and post it here first thing in the morning if that is ok, I am just going offline I'm afraid, hope that is ok?
Customer:

That is absolutely fine Ben. It is not a short query and I look forward to hearing from you. Good night. M

Ben Jones :

Good morning, thanks for your patience. SO to deal with your queries:


 


Question 1


 


i) There is no right or wrong way to deal with this because it will very much depend on the employer and how they decide to approach this. Some employers will be difficult and refuse to release you early whatever the reasons, others could be flexible, it really depends on the individual employer and your relationship with them. So either way is acceptable but you would know better what may work with them and which option would be better.


ii) This restriction could be unenforceable anyway. Post-termination restrictive covenants are a rather common occurrence in employment relationships. An employer would want to protect their business from a departing employee's knowledge, business connections, influence over remaining staff, etc. However, a covenant that restricts an employee's post-termination activities will be automatically unenforceable for being in restraint of trade, unless the employer can show that it was there to protect a legitimate business interest and did so in a reasonable way. An employer cannot apply a restrictive covenant just to stop someone competing with their business, but it can seek to stop that person using or damaging their LBIs by using a reasonably drafted covenant. Non-competition covenants prevent an employee from working with a competing business or setting up to work in competition with their ex-employer. Such general restrictions are seen as a restraint of trade and will be difficult to enforce. They will only be seen as reasonable if in the process of working in competition, the employee uses trade secrets or sensitive confidential information belonging to their ex-employer, or their influence over clients is so great that such a restriction is necessary. So you may not even have to mention it as enforcing it would be rather difficult, assuming you mind your own business when you start there and do not try and use specific confidential information or trade secrets from your previous employment.


 


Question 2


 


As a condition of the employment the employer can request specific checks, such as financial/credit check. As they will be handling personal data in the process, they will be a data controller under data protection regulations and will have strict duties in terms of processing the data and storing it securely. When they obtain the data from the reference company they will have to store it securely and in fact they cannot hold it for longer than it is reasonably necessary. For example, if the purpose of obtaining the data is to check your current history for the reason of employing you, there is no need for them to keep it for much longer after you start with them as the original purpose for which it was obtained has passed. So they should look at securely destroying the information after a reasonable period, say a few weeks after you start. This is something you can bring up with them.


 


As to the references, it is not uncommon to make a job offer conditional on satisfactory references. You can of course approach them and politely say you have no issues with the job being conditional on satisfactory references but could they confirm when this is satisfied so that you know you have nothing to worry about and can officially resign from your previous employment.

Customer:

Thank you Ben for your thorough answer. It is what I thought but I wanted to check on both counts. Have a good day, M

Ben Jones :

You are most welcome. Please take a second to leave a positive rating for the advice I have provided as that is an important part of our process. Thank you and feel free to bookmark my profile for future help:



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Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46783
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
Ben Jones and other Employment Law Specialists are ready to help you
Customer: replied 3 years ago.


Dear Ben,


 


I have communicated with a prospective new employer in particular I have politely asked them to confirm once they are in receipt of satisfactory references and they have come back with a following reply:


 


''Now that you have the offer details and the formal offer pack it is safe for you to resign.There will be no informal references that taken. The only checks that taken are those to verify the dates on your CV.''


 


Would you resign relying on this response considering the offer letter states that offer is further conditioned on receipt of satisfactory references and the one clause under the termination in the employment contract state that they can terminate the employment if they do not receive satisfactory references. I am very uneasy about this. Not sure what next. Many thanks,

Expert:  Ben Jones replied 3 years ago.
To be honest whether they say you have the references fully in order or not, your employment rights will be somewhat limited at this stage anyway and that is due to your length of service with the new employer. You do not have protection against unfair dismissal unless you have 2 years of service with them so they could actually still employ you and decide to terminate your employment at any point before or after starting and up to 2 years from your start date, without you being able to challenge them. So legally, it probably does not matter about the references and you can consider resigning based on this
Customer: replied 3 years ago.


Thank you Ben! Legally, it makes sense. I'll have to switch my brain and logic and go with it instead prolonging it any more than necessary. Have a good day!

Expert:  Ben Jones replied 3 years ago.
Thanks, you too

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