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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 48739
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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My partner has a employment contract which includes a clause restricting him

Resolved Question:

Hi
My partner has a employment contract which includes a clause restricting him for working after termination with "restricted customers" for a period of 6 months .
It states termination for any reason -
He was advised that he was going to be made redundant as the studio where he worked as an interior designer was to close . Although he has a potential option of moving into a sales role in the firms show room . This I think is being offered on a trial basis for Suitable Alternative Employment .
He is not sure what to do as it is a different role
However what the question is really about is would a clause that potentially covers all terminations even redundancy be deemed to be fair , given it is potentially restricting him making contacts to try and secure himself a job in his chosen profession
Submitted: 1 year ago.
Category: Employment Law
Expert:  Ben Jones replied 1 year ago.
Hello, my name is***** am a qualified lawyer and it is my pleasure to assist you with your question today. How long has he worked there for?
Customer: replied 1 year ago.
almost 3 years
Expert:  Ben Jones replied 1 year ago.
What are restricted customers in this context?
Customer: replied 1 year ago.
At this stage I just want basic advice , I don't want to run up extra costs
I understand the purpose of the clause is to stop employees taking business away and the contract defines restricted customers as people that were known as a result of employment .The issue is whether taking a job with a restricted customer would be covered . it talks about taking away from the company the custom of the restricted customer with a view to providing goods and services. But I don't think that would cover being employed by the restricted customer
Expert:  Ben Jones replied 1 year ago.
Don't worry no extra costs will be incurred, you only pay what you have agreed to at the outset. 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. 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. 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
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Customer: replied 1 year ago.
Very helpful - one final question the restricted customer is considering offering my partner a job in a sense as his exclusive in house interior designerAs the restrictions are because the employer would want to protect their business from a departing employee's knowledge, business connections, influence over remaining staff, etc. But as they are closing down this part of the business , there is no business to protect .That is the way I will attempt to argue it - thank you for you help
Expert:  Ben Jones replied 1 year ago.
yes it is a valid argument - if they are not being affected by the work he will do then they cannot just prevent him from working for them generally