Hello, my name is ***** ***** it is my pleasure to assist you with your question today. What does the covenant restrict you from doing and for how long?
A it is not too long I will write it out now....
It first starts by saying: Upon the termination of employment for whatever reason, you shall not either directly or indirectly ( without prior written consent of the company) for a period of 6 months therafter:
..Solicit the custom of or entice away from the company the custom or business of any person who is or was a customer of the Company and/or any of its associated companies at any time during the 12 month period immedialtely preceding the date on which your employment with the Alexis Ferraris terminated
The contract is with the uk Ltd company.
The main thought i have: My current employer and potential future empoyer and many others sell their equipment through dealers/distributors. I currently deal with dealers in the geographical area I am supposed to work in. Would I be able to work for this Czech manufacturer and contact dealers in the uk I have never dealt with? Obviously dealers operate in the free marker economy and do not exclusively deal with one manufacturer. As I am sure you have gathered; this is a big deal for me as I am moving country but also this is a rare opportunity to be able to use my english experience whlist living in the Czech republic.
I look foward to your reply.
I would appreciate your reply
Hello there, 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-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. If your current employer already uses the companies in question or the reason they start working with the employer is not directly related to the unique influence you have over them, then such a restriction is unlikely to be enforceable.
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
I think I have a slighlty better undestanding. But does it mean that the restrictive covenant is 12 or 18 months?
it is only for 6 months actually - the 12 month reference is only that it covers persons/organisations which were clients of the current employer for the 12 months before you left their employment
If my future employer has had an existing relationship with one of the distributors that I have been dealing with; am i still able to communicate with that distributor?
yes that should be no problem - just communicating with them and even working with them is not generally an issue, what could be a problem is if you are using your influence over them to actively try and take their business away from your old employer
you are welcome, all the best