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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 45376
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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I've given my employer voluntarily an undertaking in writing

Resolved Question:

I've given my employer voluntarily an undertaking in writing not to entertain any companies approaches or offers of employment for a year this month. I'd really like to leave my employer but understand this undertaking is legally binding. Is there any sensible way to break off or retract this statement that I stupidly volunteered?
Submitted: 2 years ago.
Category: Law
Expert:  Ben Jones replied 2 years ago.
Ben Jones :

Hello, my name is ***** ***** it is my pleasure to assist you with your question today. How will your company be affected if you were to break this agreement?

Ben Jones :

Hello, my name is ***** ***** it is my pleasure to assist you with your question today. can you tell me how long you have been employed here and when did you sign this clause please.

Customer:

Hi Ben

Customer:

I've been with the company since July 2012 and were I to leave they'd be substantially affected by a loss of knowledge and my relationship with my existing corporate accounts. I manage the largest spending clients that we have in the South

Ben Jones :

Hello did you get my reply please.

Customer:

Signed the clause last month... but I'm desperate to get out. I have a competitor lined up to take me on in an amazing role but they want to see this statement retracted before they'd offer me formally.

Ben Jones :

Whilst the starting point is that such an agreement would be legally binding, that does not mean the employer can try and enforce it in any event and regardless of what you do. Such an agreement would be a binding contract so if you were to go ahead and breach it, it would amount to a breach of contract on your part. Under law the employer could then consider making a breach of contract claim against you but if they do so all they can pursue you for would be compensation for actual losses which they have incurred as a result of that. So for example if your actions have resulted in some financial losses for them, then they could consider pursuing you for these. If they have not suffered any losses as a result of that breach then there is little they can do to take this matter further. They cannot simply penalise you financially because that would be a penalty clause which is legally unenforceable. It is also unlikely that they will be able to prevent you from joining another company because that would amount to a restraint of trade, which is also unlawful. If by joining the new company you would be infringing the old company’s legitimate business interest, for example using confidential information or trade secrets you obtained from them and used them in the new employment, they could then consider trying to stop you from doing that. However, if you are not going to do this and will simply start a new job which does not directly affect them or their legitimate business interests in any way, then they cannot stop you from working there, even if you had the agreement in place.

Ben Jones :

Ok thank you leave it with me I need to look up a few things and then get my advice ready.I will post back on here when done there is no need to wait and you will receive an email when I have responded.

Customer:

Thanks Ben, will await your update. Reading to the bottom of your reply I presume you're going to research some more then come back to me

Customer:

Cheers

Customer:

Ed

Ben Jones :

Hi sorry I posted that by error, the reply is above

Customer:

Right. So if I left and they suffered as a result they'd be entitled to claim for the loss of earnings, which they almost certainly would as my other offer is from a competitor and my existing employer would lose creditability and my relationship with my clients. I'm not leaving them to do a similar role and I won't be a salesman or an account manager as I am now. I've been offered an overall development role. However, the other companies legal team think my only option is to plead for time off owing to family problems, say I can't work there any more and beg them to rescind the statement I signed to...

Ben Jones :

You cannot really be forced to continue working for them for a specific period of time. So even if you had a fixed term contract, that can be terminated if you gave them the notice period within it. They cannot just claim for loss of earnings had you continued to work there for a year - they have a duty to reduce any such losses and show they have taken steps to do so, meaning they would need to seek a replacement to do the work and if they have not bothered to do so they are unlikely to be able to claim the full sum they may be after

Customer:

Aha, thanks Ben, very useful. Anything else you think I need to consider or should do? How am I best advised to break the contract/agreement then? Simply say I want to leave? What if they won't rescind the statement in writing, that seems to be the only thing the new company is insistent on... I'm snookered without same.

Ben Jones : To break the agreement you only have a couple of options - try to agree that with the employer and obtain their consent , or go ahead and break it yourself and then be prepared to face any action by the employer, defending it with the arguments i mentioned above. They cannot force you to stay, no one can physically force you to stay there and it will simply be down to the employer taking legal action against you to try and seek compensation, subject to being able to prove such losses were incurred, were reasonable and that they had not been able to reduce them
Customer:

Please 'finish' answering so I can rate you and you get the monies paid Ben

Customer:

Many many thanks

Customer:

The new company legal team thought the existing could take out an injunction against me if I joined the competitor - no?

Ben Jones : Injunctions are not freely given if someone applies for it, there has to be a very good reason to do so and just because you had the agreement in place would not be sufficient. The employer would have to show there was a specific threat to their business by you joining the new company or you would breach confidentiality or trade secrets
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 45376
Experience: Qualified Solicitor - Please start your question with 'For Ben Jones'
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