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Alex J.
Alex J., Solicitor
Category: Employment Law
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I am currently working as a broker, i have a 6 month non

Customer Question

Hi, i am currently working as a broker, i have a 6 month non compete clause. 4 weeks ago friday i was told by my boss that i could leave the office work 1 month notice period and the non compete clause would be ignored as good will for all my hard work. However i have recieved my termination document and the clause is still in there, they are going to hold me out of the market un paid for 6 months. Would i have a case against this as i will potentially lose my job offer and my family home as my wifes salary wont cover the mortgage and bills
Submitted: 1 year ago.
Category: Employment Law
Expert:  Alex J. replied 1 year ago.
Hi,
Thank you for your question and welcome.
My name is ***** ***** I will assist you.
Did the company serve you with notice or was it the other way?
Can you send me the exact wording of the non compete?
Kind regards
AJ
Customer: replied 1 year ago.

i handed my notice in

the wording is as follows: 15.2 without the written prior consent of the Employer and whether alone or with others, directly or indirectly for your own benefit or the benefit of any person or organization you shall not suring your employment and for a period of six months after its termination:

15.2.1 in competition with the Restricted Business, seek to procure orders from, deals or carry on business with, or transact business with, any client or counterparty of the Desk (or any desk to which you are moved in accordance with your employment contract or thes eterms and conditions) of the employer or and Associated Company(whether a Company or an individual) with which or whom you have had material and/or regular dealing in the course of your duties or, where this provision would apply after your employment ends, any time during the twelve months prior to its termination.

I need to know if it is legally bounding or it could be voided in court

Expert:  Alex J. replied 1 year ago.
Hi,
Thank you.
Can you confirm the definition "Restricted Business"?
Also do you have a particularly senior or business sensitive position? Were you advised on this clause before you signed up to it?
Kind regards
AJ
Customer: replied 1 year ago.

i have no idea what restricted business would be i can only imagine it would be due to being a metals broker. and the clause was within the contract which i signed, however it wasnt pointed out to me or highlighted in anyways

Expert:  Alex J. replied 1 year ago.
Hi,
Thank you.
Is there is no definition of "Restricted Business" in the contract, then the whole clause is meaningless and certainly wouldnt be enforceable. If restricted business is not defined the clause does not actually allude to what line of business you must not compete.
For restrictive covenants to be enforceable they have to be very clearly drafted and serve a commercial purpose. They also have to be limited to only that which is necessary to achieve the commercial purpose. The commercial purpose might be that you had a very important role in the company and/or were paid to sign up to the restriction.
If you did not have any particular seniority or the clause is ambiguous then it would make it conceptually difficult to enforce. That said I would not sign up to the clause for a second time in the termination agreement.
Do you have another job lined up?
Kind regards
AJ
Customer: replied 1 year ago.

i have just seen that in the contract regarding "Restricted Business"

"Restricted Business" shall mean the business or any part of the business and which in either or both cases:

15.3.1 is carried on by the Employer or any Associated Company at the date of termination of your employed;

15.3.2. was carried on by the Employer ort any Associated Company at any time during your employment or, where the relevant provisions would apply after your employment end, any time during the twelve monts immediately proceeding the date of its termination

15.3.3 is to your knowledge to be carried on by the Employer or any Associated Company at any time during the 12 months immediate following the date of termination of your employment

and which you were materally concerned with/worked for or had management responsibility for in either case at any time during your employment or, where the relevant provisions would apply after your employment end, any time during the period of 23 months immediately prior to the date of it termination

Yes there is another job lined up however my boss told me that the clasues would be void and i would be free to start on the 14th September therefore the job offer may not still be help for 6 months whilst i am held out of the market

Expert:  Alex J. replied 1 year ago.
Hi,
Thank you.
This is actually an issue for your new employer, if your new employer employs you then can be dragged into the proceedings.
Unless you had a particularly business sensitive or critical role, I would say it is unlikley this would be enforceable but that would not stop your old employer from causing the aggravation of a claim. The best thing you can do is try and manage this - is there any way you can commence the new role without taking a front or public seat? Is there anyway you can get someone within the new role to transact the business on your behalf?
Kind regards
AJ
Customer: replied 1 year ago.

the new employer wont let me sign the new contract with these clauses in place for that reason, thank you for the advise though guess i am stuck!

thanks anyhow

Expert:  Alex J. replied 1 year ago.
Hi,
Thank you.
When your employer initially said they would waive the restriction, were they aware your new job was contingent on this?
This is not so much an enforceability issue it is more your new employer and your old employer reaching an amicable agreement?
Are they actually competitors of each other?
Kind regards
AJ
Expert:  Alex J. replied 1 year ago.
Can I assist you any further? Any feedback is gratefully received.Kind regards AJ

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