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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.
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.
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.
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.
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
Thank you for the comprehensive answer. Just a couple of supplementary questions, if I may?
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?
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
Thanks for the answer.My apologies for not responding earlier as I have very poor Wifi and roaming data access! T