Employment Lawyers Can Answer Your Employment Law Questions
That is absolutely fine Ben. It is not a short query and I look forward to hearing from you. Good night. M
Good morning, thanks for your patience. SO to deal with your queries:
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.
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.
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
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:
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,
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!