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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 46156
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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I'm a Architectural and interior photographer about to sign

Resolved Question:

Hi I'm a Architectural and interior photographer about to sign a contract with a new photography company, they sent to a DNA & Confidentiality Agreement but I'm not comfortable with the last clause can please give an advise? find below the the clause.
many thanks
Upon leaving the Business or being given access to any business concept prior via interviews, telephone, written, email or internet based information or in person The Disclosee shall make no contact with any of the current staff, other photographers, company call centres, freelancers, sub-contractors, customers or suppliers of the Discloser without the authority of the Discloser in writing, and will undertake to NOT copy, mimic, transfer, or operate a similar business that ghosts any part of the Disclosers current business or blueprint plan, and any intellectual property rights or Copyrights to the Disclosers business and shall not operate in a similar business, partnership, Limited Company or field or profession whilst being in direct or indirect competition in any way with the Disclosers business.
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.

Ben Jones :

Are you likely to breach any of these restrictions?

Customer:

I'm Architectural photographer and if I leave the company it seem to me I won't be able to work

Ben Jones :

ok thanks let me get my response ready please

Ben Jones :

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 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.

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:



  • Obtain an interim injunction preventing the employee from doing certain things that would make them in breach of the restrictive covenant

  • 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. So in all likelihood it is unlikely that the company can just top you from working in your field but if you are breaching any of the above principles, such as using their work, poaching clients, etc then they could have a potential claim. But simply working in competition is unlikely to be a justifiable reason to stop you from working.

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

Customer:

ok ben thank you

Ben Jones :

you are welcome

Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 46156
Experience: Qualified Solicitor - Please start your question with 'For Ben Jones'
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