Hello, my name is ***** ***** it is my pleasure to assist you with your question today. How would your current employer be affected if you moved to a competitor? Would you use any confidential information from them, poach clients or staff, etc?
In theory my current position would be available for them to fill with another person (time to fill of course).At the moment i am the only person trained in this role.
The company who has asked me to move over has an alternative position so i would not be trying to take the role also
No information i believe at this stage.
all data is owned by the 'restricted' customer and work on for them
But by moving you would not be directly taking data or similar information - it would already either be held by the customer or be available in the public domain?
I would be taking my knowledge. My role is directly into the customer working within their team . My employer is in effect contracting me into the customer.
I am in Network Eingineering / design.
I work on projects that need connectivity
Information would be about the network setup and how to route information.
There is no application software that i work on that i could take the competition.
The other company is simular, placing people into the customer but they are working on other areas and more concultancy also rather than pure engineering
SO I presume if you move to work directly with the customer the current employer will also lose out on revenue from hiring out your services?
Its not to the customer but to another company that provides into the customer.But potentially yes. If they cannot fill the role or the customer says that they dont want someone else from my company the revenue could be lost but that could be the same if i left fully to work else where anyway.The company that is asking me about moving also has people in the team i an currently in
doing a similar work.
its a little complicated the structure but in effect they are doing the same work
ok thanks, ***** ***** get my response ready please
OK thank you.I guess your advice and what the possible consequences would be in theory.
Sorry I also removed my company name in the contract item for the 'employer'.
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.
Legitimate business interests (LBIs) are commonly accepted to include:
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. The length of the restriction and its geographical coverage will also be relevant.
Whilst restrictive covenants are mainly used as a scare tactic by employers, if an employee has acted in breach of a covenant and the employer is intent on pursuing the matter further they can do so. The following are potential outcomes if the employer takes legal action:
As you can see there are no hard and fast rules on restrictive covenants. Whether a specific restriction is enforceable will always depend on the individual circumstances, the interest being protected and whether it has been reasonably drafted. The above principles are what the courts will consider when deciding whether a restriction is going to be legally enforceable. It should give you a good idea of what to look for in your situation and decide what the chances of this being pursued further are.
Thank you for the feed back.I have heard from none legal people before and information checks that its very subjective.
With regards ***** ***** legal fall out, i guess for me the costs could be legal council and also if compensation is requested the value that this could be which of course is unknown.
The key is that they cannot just penalise you for any breach - any compensation has to reflect actual losses suffered
Based on your view, how well if this drafted?Well or loose based on the belief that this is a standard contact across all of the companies activities.
Difficult to say how well or badly it is drafted because it would depend on many more specifics which are detailed and unknown to me. It does depend on what exactly they are trying to protect with it and to be honest unless it can be show you had a strong influence on the work or that by you going there will be a serious effect on their business, it could be difficult to apply such restrictions
Thank you. I guess it could be argued that if i am the only person that they have doing a role it is in fact their poor management and planning to have support in place in case someone does leave.
to an extent yes, but it is not a foolproof defence....then again as mentioned it all depends on the employer actually pursuing this formally, often the costs of doping so compared with what they can achieve in return are disproportionate
If i was to be conservative in my approach to the current contract, which of the time limits would i need to adhere to to ensure that I am not breaking the working with a customer.The 6 months direct customer or the 12 months providing services (if that covers in directly through another company)?
Well the 12 months, if you wanted to act on the cautious side
Yes sometimes it could just be a formality they want.
I am aware that a collegue moved directly to the customer and they were not happy there but I think that situation was different as they 'agreed' a solution between in effect the supplier and customer to avoid issues.
I also have heard that for a contractor they sent a 'warning' email about legal restrictions when they let someone go. Nothing happened within and they went elsewhere but they could just be flexing their options. Whether anything would come of it only they would know.
Would you say at the moment, the final view would be that there is potential in what they could try but the onus could be on them to prove 'hard ship' and fundamental loss in effect.As you say, the contracts cannot be used to stop people unnecessary moving/having a trade and should have cause and effect to be enforceable.
A warning means nothing, unless they actually sue you and win there is little they can do apart from threaten you
Thank you for your time and assistance. Ultimately it is still an unknown quantity (on all counts) and I would need to decide what to do. Weigh up the pros and cons.
you are welcome, all the best