Hello, my name is ***** ***** it is my pleasure to assist you with your question today. can you tell me how long he has been with this employer please and has he a copy of his contract of employment please.
Hi Ben - I believe he has been there for about 3 years and yes he does have a copy of this contract but I can't get hold of him at the moment!
Ok thank you leave it with me I need to look up a few things and then get my advice ready.I will post back on here when done there is no need to wait and you will receive an email when I have responded.
Hi, sorry I did post my response on here last night but for some reason it does not appear to have registered so I will try again.
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, such as the one in his case, 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.
So if he is going to work for a competitor but will not be infringing any of the current employer’s LBI’s, such as using confidential information obtained from them, trade secrets, client contacts, etc then it is highly unlikely that they can enforce any such restrictions against him. In simple terms if he just goes and works for them, minds his own business and does not use anything specific that can be attributed to the old employer, he would not be doing anything wrong, even if he has these restrictions in his contract and the employer will not be able to stop him working there.
Such terms are usually used as scare tactics and attempts to try and prevent someone from working for the competition but in reality they are very difficult to enforce and only if the above mentioned factors have been satisfied.
Hope this clarifies your position? If you could please let me know that would be great, thank you