Hello, my name is ***** ***** it is my pleasure to assist you with your question today. Whilst you say certain aspects will not directly compete how could it affect their business?
Hi. Well I have a network of digital people that i built up in my previous employment that could be beneficial in my new role, however I can be careful not to contact anyone for the remaiing 4 months that the new employer does not already have on their system
And I am hoping that if I am working on purely interim assignments,which my previous business didn't (only permanent roles), it might be ok. as I will notbe directly taking any business away from them. However, I am concious that my new business does manage permanent assignments so wonder whether that would still be an issue. evenif im not involved...
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:
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.
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. 6 moths is not necessarily unreasonable – some restrictions can last for longer than that even but your main argument would be to try and show that you are not actually competing directly with their business. You are unlikely to be prevented from joining a business that directly competes with your ex-employer’s as long as the work you are involved in does not compete with it.
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:
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 clarifies your position? If you could please quickly let me know that would be great, as it is important for us to keep track of customer satisfaction. Thank you
Thanks Ben. Just briefly, in your view, if I didn't contact any candidates that weren't already on my new companies system, or contact any clients that my old firm worked with, or in any way do anything to damage their reputation, they can't uphold it?
Also if I focus on interim placements, they don't offer that service so I presume there's no way of them demonstrating i've stolen business or caused loss of earning..
From what you say the odds are in your favour – you are not using your influence over customers/clients or actively taking away the employers business so these restrictions could be rather difficult to enforce here
Does this clarify things for you a bit more?
Yes thanks Ben,
appreciate the help. Let meknow when I can give you feedback
hi you are welcome and you should be able to leave feedback now, many thanks and all the best