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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
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Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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My son left Company A some 7 months ago to work for Company

Resolved Question:

My son left Company A some 7 months ago to work for Company B. He has now been approached and offered a job with Company C - a direct competitor of Company A.
He has been alerted to two possible issues:
1. He is possibly still covered by a restrictive covenant from his employment with Company A (he is currently unsure if this was 12 months). However, the new role he has been offered does not, in principle, involve direct competition with the products he dealt with when employed by Company A. It is also worth mentioning that the original job was his first role after graduating, so not a senior position. In such a situation, would 12 months be considered excessive?
2. His girlfriend, with whom he is about to begin cohabiting, is still employed by Company A. They are both very concerned that Company A may take action against her, or that her career may suffer, as a result of their relationship. She is a graduate trainee, and is currently concluding her training in another, unrelated part of the business, but is due to return to a role in the business where the two if them could be in "conflict" due to working on competing product ranges (although this is highly unlikely).
Both are prepared to be open and honest with their respective employers about this situation, however they are concerned about possible repercussions and, in particular, about his girlfriend being "sidelined" or even dismissed because of their relationship. Is this likely? Is it legal? Are there steps they can take to reduce or eliminate this risk?
Submitted: 3 years ago.
Category: Employment Law
Expert:  Ben Jones replied 3 years ago.
Ben Jones : Hello, my name is ***** ***** it is my pleasure to assist you with your question today. How long has she worked there for? Please note I am going offline shortly so probably won't be able to respond until the morning thanks
Customer:

She will, by the time she returns to the head office from her current placement, have completed 2 years' service, which, as I understand it, would give her added protection in terms of being able to take action for constructive or unfair dismissal if the situation arose.

Customer:

If you are unable to respond this evening, please note that I'm leaving the country tomorrow morning and may have difficulty answering any further questions tomorrow as I'll be travelling. I will, however (hopefully) be able to access your response.

Ben Jones :

Good morning and thanks for your patience. I understand you will be leaving the country but you are free to access this as and when you wish and can come back to me any time – I will respond whenever I can so even if we do not catch each other online at the same time we can still continue discussing this.



  1. A 12-month restriction could be reasonable even in the circumstances, although it would be reaching the upper limit of what the courts would generally consider acceptable. The issue is really whether such a restriction could be enforceable in the first place.


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:



  • Goodwill (including supplier and customer connections)

  • Trade secrets and confidential information

  • Stability of the workforce


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.



  1. As to the issues with his girlfriend, as you have correctly identified, she would require at least 2 years’ service to be protected against any action by the employer. Until then she is in a vulnerable position because they can dismiss her for more or less any reason, including this one. So the issue is how long she has left until she completes the 2 years and how quickly the employer takes any potential action against her.


Assuming she goes over the 2 year period then it would be difficult for the employer to take any formal action against her, unless there were any specific restrictions in her contract or a workplace policy, dealing with her having contact or relationships with people ‘in conflict’. Even then dismissal should not be the first step they take, they could for example try to find her another job that does not conflict or get an undertaking from her where she promises not to share any sensitive information.

Hope this clarifies your position? If you could please let me know that would be great, thank you

Customer:

Thank you for the comprehensive answer. Just a couple of supplementary questions, if I may?

Customer:

If the change in circumstances hasn't happened yet, presumabky there is no legal obligation on either my son or his GF to tell their respective companies until the situation actually arises? If they aren't cohabiting, does this have any bearing?

Ben Jones :

Hi there, you are correct that generally there would be need to inform the employer unless the circumstances have changed, although it is worth checking whether she has any more specific obligations to inform them for example in the event that there is a potential conflict and this could cover a situation where the circumstances have not yet changed but are likely to in the near future. The fact they are not cohabiting would not really have any effect.

Hope this answers your query

Customer:

Thanks for the answer.My apologies for not responding earlier as I have very poor Wifi and roaming data access! T



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