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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 44382
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I have recently left my current employer to join a

Customer Question

I have recently left my current employer to join a competitor and have been placed on garden leave. When I joined the company in 2012 I signed a restrictive covenants agreement preventing me from apporoaching existing customers for 6 months. At my recent exit interview my line manager presented me with a letter which reminds me of my restricted covenants and asking me to return it signed by the 2nd September. The letter goes on to say that if I do not sign it they will apply to the courts for immediate releif and send me a bill for the court fees. Also in the letter they say they will send a copy of both the letter and my restricted covenants to my new employer.
My questions are.
1.) Can they really do what they have threatened if I do not sign the letter?
2.) Am I compromising myself in anyway by signing this letter given the fact I already signed an agreement back in 2012.
3.) Are they really allowed to send these documents to my new employer?
My new employers are aware of the situation but find it very odd that my current employers would take this action.
Further more they have spelt my surname wrong on the letter, not sure if this makes any difference?
Thank you in advance for your assistance.
Submitted: 2 months ago.
Category: Employment Law
Expert:  Ben Jones replied 2 months ago.

Hello, my name is***** am a qualified lawyer and I will be assisting you with your question today. To answer your questions:

1. Whilst there is nothing stopping them from approaching the courts, they cannot just get ‘relief’ as they call it against you. There are a couple of options for them if they go to the courts – get an injunction preventing you from approaching clients, or pursue you for damages incurred as a result of you breaching the restrictions. You have not yet breached anything so they cannot really seek damages. As to an injunction these are only issued as a last resort, i.e. if it is clear that there is a reasonable restriction in lace and that your influence on the clients is so strong that there is a good chance they will leave because of you approaching them and it will seriously affect the employer’s business.

2. By you signing the letter now it will not make any difference because there is already a restriction in place. Signing it again now does not make it any stronger or make your position any weaker.

3. If they send these documents they may potentially be acting in breach of data protection by sending personal data about you to a third party without your consent.

As to the surname it would make no difference really if it is just an admin error.

This is your basic legal position. I have more detailed advice for you in terms of the laws on restrictive covenants and what the courts may look at when deciding if they are reasonable, which I wish to discuss so please take a second to leave a positive rating for the service so far (by selecting 3, 4 or 5 stars) and I can continue with that and answer any further questions you may have. Don’t worry, there is no extra cost and leaving a rating will not close the question and we can continue this discussion. Thank you

Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 44382
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
Ben Jones and other Employment Law Specialists are ready to help you
Customer: replied 2 months ago.
Thank you so much for your assistance. Yes I would like to know more about the restrictive covenance. I would also like to know if there is any way of preventing my current employer sending these documents to my new employer. I find this very embarrassing and unnecessary as the covernance agreement is between myself and my current employer and nothing to do with my new company. Thank you again.
Expert:  Ben Jones replied 2 months ago.
Thank you. 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:
• Goodwill (including supplier and customer connections)
• Trade secrets and confidential information
• Stability of the workforceAn 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.As to stopping them from sending these to the new employer sadly there is nothing you can do to ensure that wont happen. If they really want to send them they will. So it is best to approach them before they do and to advise them that it will be treated as a breach of data protection if they end up sending them and you will be pursuing them for compensation for any losses suffered.
Customer: replied 2 months ago.
Hi BenThanks again.Just a few more questions.On the restricted covenence it has the following statement which I'm confused about. "The employee shall not during the first 6 month period after the date of termination of employment, be engaged, concerned or interested, either directly or indirectly in any capacity in any trade or business or occupation whatsoever .
A.) In the United Kingdom and Ireland, which would reasonably be considered to, compete with the restricted businesses : or
B.) with a restricted company in the United Kingdom".I don't really fully understand this statement, is this saying I can't work for any competitor?
My new company is not listed as a restricted business on my current employers covenants agreement but is a competitor, although not a mane one. The restricted business as detailed in the agreement is the business of manufacturing and storing electrical cables and cable accessories which is what my new and old company does.
I guess this ties in with what you have detailed in section three of your last email. I take it this does not apply to me because my new company is not listed as a "restricted business"? The product I will be selling is not one which my current employers supply.It goes on to make the following statement.
The employee shall not during the 6 months either on his own account or in conjunction with or on behalf of any person, solicit, interfere with the company's or any group company's relationship with or entice away or attempt to solicit, interfere with the company's or any group company's relationship with or entice away any person who is a restricted client or prospective client or prospective client provided always that nothing contained in this clause shall be deemed to prohibit the seeking or doing of business not in direct or indirect competition with the restricted business.
Is this non solicitation covenenat? Is this still valid even though I'm selling a product type which my current employer doesn't make or supply?Final question, by signing and returning the letter I'm not inadvertently authorising my current employers to send the details to my new employer? Am I legally allowed to state on the letter that I will take legal action if they do send the details to my new employer?Thanks again for all your help and advise?
Expert:  Ben Jones replied 2 months ago.

Hi there, yes they are basically saying that you cannot work for a competitor, i.e. a company which Is either a restricted company as defined or in competition with the restricted business as defined) in the UK or Ireland for 6 months after termination. This is very unlikely to be enforceable as it basically prevents you from working for anyone in the UK considered a competitor and that would be way too wide to be a reasonable restriction.

The second part is a non-solicitation and again it is unlikely to be relevant if you are not actually acting in competition with the business of the employer.

By signing the letter you will not be giving permission for them to send this to the new employer, it looks like they specifically said they will only do so if you do not sign the letter. You may of course remind them that sending this without your explicit permission will be a data protection breach and that if necessary you will take the matter further if they do.

Customer: replied 2 months ago.
Thanks Ben, you have been a great help to me.I will sign and return the letter as I think it makes no difference to the situation.They state in the letter that they will send a copy to my new employee so I will put a note on there reminding them of data protection.Thanks again.
Expert:  Ben Jones replied 2 months ago.

You are welcome, all the best

Customer: replied 1 month ago.
Hi BenI hope you are well and you had a good weekend.I'm just about to sign and return the letter but just wanted to ask you if it is OK to hand write the following statement at the bottom of the letter with reference to data protection?Please feel free to advise if I should include or remove any words or statements? I would like to be polite but firm if possible.I have also scanned a copy of the letter for you to reference."Please note that by sending any information about me to a third party without my permission would be breach of data protection. I would like to put on record that I do not give you permission to do so".Many thanks again for your help.
Expert:  Ben Jones replied 1 month ago.

Hi there, I would just add a few words along these lines:

"Please note that by sending any personal information about me, including my contract of employment, to a third party without my permission would constitute a breach of data protection. I would like to put on record that I do not give you permission to do so".

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