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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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I have been working procurement software implementation

Resolved Question:

Hi
I have been working for a procurement software implementation consultancy for 9 months on a probationary period and they are now not going to move me to a permanent position now that the probationary period is expiring. They are giving me one month notice ending on 5th feb 16.
I have been asked by one of my clients who I worked for at this consultancy if I would be interested in taking up a 3 month interim position with them to work on an associated project to the one that I was working on with my previous employer. The role is not something that my previous employer has any experience in and the client would not consider offering them the work anyway. However I have an anti competitive covenant in my contract with states that i cannot solicit clients. The client approached me, but I do not know if this matters or not.
I have attached the working of my contract below. Can anyone tell me if this is enforceable under the circumstances or if the situation / wording makes it unenforceable as I would really like to continue working with the client?
Thanks
16. Anti-competitive Covenant
You are aware that the services that you will provide are of a special and unique nature and of extraordinary value to the Company and the Company itself is under an obligation to refrain from disclosing any confidential data on its customers.
Accordingly, during the term of this Contract of Employment and for 6 months following its termination, you undertake to refrain from performing either directly or indirectly (except as shall be performed pursuant to this Contract of Employment) any activities for any of the customers of the Company, to take part in such activities or to arrange to be performed in all cases in which the activities performed entail the use of confidential information any knowledge or skills possessed by the Company or their customers and which you gained during your activities for the Company or for any such customers.
You also undertake that, for a minimum of one year after leaving the employment of the Company you will not either on your own behalf or on behalf of any person, firm or company directly or indirectly endeavour to entice away from the Company:
i. Any restricted client; or
ii. Any person who at the time of your leaving such employment is an employee or officer of the Company or of any restricted client
Where, for the purposes of this paragraph, a restricted client is any person, firm or company who during the period of two years prior to leaving such employment shall have been:
a. A client of the Company for SharePoint, Duet Enterprise and SAP ERP systems related services; or
b. A client or partner to whom you provided services or with whom you had contact during such period for two years.
Submitted: 1 year ago.
Category: Employment Law
Expert:  Ben Jones replied 1 year ago.
Hello I cannot see an attachment I'm afraid can you please try again. Thanks
Expert:  Ben Jones replied 1 year ago.
Hello, sorry due to the way my page displayed I could not see the full information you provided but have managed to access it now. Would the current employer be affected in any way should you decide to go and work for this new employer?
Customer: replied 1 year ago.
Hi Ben
They should not be affected by the role that the client has asked me about, although they may argue that they could have been considered for this. There is no one at the company who has the type of experience that the client is looking for and the client also does not have the budget to pay them for this role as their day rate is £1200. My day rate is £500.They are in discussions with the client about another piece of work at present but this is separate from what they have asked me to do and they may or may not be awarded this. Although I could undertake this work for the client, it is too much work for one person.I hope that helps
Thanks
Expert:  Ben Jones replied 1 year ago.
Thank you for your response. I will review the relevant information and laws and will get back to you as soon as I can. Please do not respond to this message as it will just push your question to the back of the queue and you may experience unnecessary delays. Thank you
Expert:  Ben Jones replied 1 year ago.
Many thanks for your patience. 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:{C}· Goodwill (including supplier and customer connections){C}· Trade secrets and confidential information{C}· 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. There are a few different types of restrictive covenants that can be applied, these being: 1. Non-solicitation covenants are there to prevent an employee from enticing away the customers of their ex-employer and as long as they are reasonable are the most commonly enforced type of restriction. Solicitation generally means “directly or indirectly requesting, persuading or encouraging clients of the former employer to transfer their business to their new employer". To be valid, the covenant should be restricted to customers with whom the employee had contact during a specified period before leaving. Other relevant factors may include the employee's level of seniority in the business, the extent of their role in securing new business and the length of similar restrictions in the employment contracts of competitors. 2. Non-dealing covenants are a wider restriction and not only restrict solicitation but any other general contact with clients. The enforceability of a non-dealing covenant will depend on the interest being protected and can be influenced by a substantial personal connection the employee enjoys with a specific client. However, such a covenant will not be enforceable if it prevents any sort of contact with the client. The restriction must be focused on the specific type of contact that would directly affect the employer's business. 3. 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:{C}· Obtain an interim injunction preventing the employee from doing certain things that would make them in breach of the restrictive covenant{C}· Seek compensation for damages that have directly resulted from the breach of the covenants 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. In the circumstances, considering that the work you propose to do with the client is not in competition with the current employment and will not affect their existing relationship, enforcing such a restriction may be difficult. I hope this has answered your query. I would be grateful if you could please take a second to leave a positive rating (3, 4 or 5 stars) as that is an important part of our process and recognises the time I have spent assisting you. If you need me to clarify anything before you go - please get back to me on here and I will assist further as best as I can. Thank you
Customer: replied 1 year ago.
Hi BenCan I just ask a clarifying question please?Where an employer inserts a clause seeking to restrict ALL activities of a former employee with a ALL of it's clients (whether the former employee worked with them or not), is this generally unenforceable?e.g. "you undertake to refrain from performing either directly or indirectly (except as shall be performed pursuant to this Contract of Employment) any activities for any of the customers of the Company....."Also, would 12 months also be seen as unreasonable as I only worked for them for 9 months and the client in question, only about 25 chargeable days in total.Regards
Stuart
Expert:  Ben Jones replied 1 year ago.
That would be a very broad and general clause and that would make it even less likely to be enforceable. 12 months could be reasonable, I would say 6-12 months can be standard although as mentioned only a court can decide if in the circumstances it would be enforceable or not. I would concentrate more on the blanket restriction as that will be a stronger argument. Hope this clarifies?
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46222
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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