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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46743
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I have job offer in hand and have put down my papers with

Customer Question

Hi there!
I have job offer in hand and have put down my papers with the current employer. Looks like the company I might join is trying to position me with an existing client of my current employer. Though I dont work for the client, can my current employer enforce non-compete clause?
What are the ramifications of breach of contract? Would that be to an individual or to the company that hired me?
Thanks,
Vijay
Submitted: 8 months ago.
Category: Employment Law
Expert:  Ben Jones replied 8 months ago.

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

Expert:  Ben Jones replied 8 months ago.

Is your current employer aware of this?

Customer: replied 8 months ago.
Hi Ben - Nope. The current employer is not aware of this but the account which I have been shortlisted will remain with my current employer until 2017. Can I send you the non-compete clauses?
Expert:  Ben Jones replied 8 months ago.

Hi there Vijay. Thank you for your response. Yes if you could please send this to me, I will review the relevant information and laws and will get back to you at the earliest opportunity. There is no need to wait here after you have sent this through as you will receive an email when I have responded. Also, please do not responded to this message after this as it will just push your question to the back of the queue and you may experience unnecessary delays. Thank you.

Customer: replied 8 months ago.
Thanks Ben. I've attached offer letter from my current company which has the non-compete clause.Note - The potential client is someone I have no delivery/financial dealing and have never been involved in any presales or project discussions. But I do have access to some information as it's in our common system.
Expert:  Ben Jones replied 8 months ago.

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:

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. In this case it does not appear that there is a sufficient link or risk for the ex employer for you going to work with that client. The main concern is the knowledge you may have and how influential it may if you were to work with the client and the adverse effects it may cause the employer. If this will not be used or the ramifications are minor, then the likelihood of such restriction being enforceable will be relatively low.

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.

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 8 months ago.
Thanks Ben. It sounds like a risk worth taking given the circumstances. Just one question though -> If at all my current employer decides to take legal action, would that be against an individual that is me or the organisation I intend to join.
Expert:  Ben Jones replied 8 months ago.

Hi, any action would be against you - the contractual relationship is only between you and your employer, there is no contractual relationship between them an your new employer so they cannot take any action against them.

If your original question has been answered I would be grateful if you could please quickly rate my answer by selecting 3, 4 or 5 starts at the top of the page - it only takes a second to do and is an important part of our process. I can still answer follow up questions afterwards if needed. Thank you

Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46743
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 8 months ago.
Thanks Ben. Done! I have rated the service as EXCELLENT!
Customer: replied 8 months ago.
Would it make any sense to have a chat about this with my current employer?
Expert:  Ben Jones replied 8 months ago.

you may indeed do so, but then it would put them on notice about your plans - you have to consider whether it would be likely that they will find out what you do after you leave, if the chances of that are low then you may wish to avoid telling them directly about it and just take your chances. If it is going to be clear to them that you have moved to this client then you could talk to them now just to see if it is going to be an issue and how much they protest

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