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Ben Jones
Ben Jones, UK Lawyer
Category: Law
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Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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Customer Question

Hello,
I need advice regarding a former employer who is threatening to take me to court.
1) I left a company that specialises in a particular technology to go to a competitor that wanted to produce something similar.
2) I worked for this competitor for approx. 10 weeks, realised that it wasn't for me, handed in my notice and left within a few days. I received a contract the day before I handed in my notice, did not agree with it, did not sign it, and left.
3) I then went to work for a completely different company and was made redundant after a few weeks.
4) Luckily, the first company that I worked for approached me and said that they had a position open which I may be interested in. I went to speak to them about it (without mentioning that I originally left them to work for a competitor) and they offered me the position on a 3 month basis.
5) The boss of the second company has now found out about me going back to the first company and sent me a text to say that he had "just had a meeting with [his] lawyers and mentioned that you no longer work for us and they advised that I should reiterate one point in particular and that is that you can't work for a competitor for a year after leaving my company, which makes sense of course as you have highly confidential information about our business, leads and model that could be put to use by a competitor. Could you just let me know who you are working for now please and in what position?"
6) This of course struck the fear of god into me and I immediately checked the contract that he sent to me, and found that it does NOT state that I have a non compete clause.
7) The boss of company two has since called me and, when I questioned why he thinks this is the case as I do not have a non compete clause in my contract, he stated that a clause is present within the company handbook. I told him that I had never seen, nor signed, any company handbook so have no idea what he was referring to, nor did he mention it or direct me to it when I handed in my notice to him.
8) He then stated that the handbook was in 'draft format' when I left, and that this is why I did not see it. He stated that a handbook is referenced in my contract, though I know that this is within a section regarding general rules and regulations, and NOT in specific reference to my obligations upon leaving his company.
Is this legally sound?? I feel that he could simply have written a handbook now (or have claimed to) upon finding out about my new employment? Would I need to have signed such a handbook to make it legally binding (which, of course, I did not as there wasn't one!)?
Please help me, this is a dreadful situation and I just want to ensure that I remain in my current employment.
Thanks
Dean
Submitted: 1 year ago.
Category: Law
Expert:  Ben Jones replied 1 year ago.
Hello, my name is ***** ***** it is my pleasure to assist you with your question today. firstly is your currant employer aware of the situation please.
Customer: replied 1 year ago.

No, they aren't.

Expert:  Ben Jones replied 1 year ago.
Thank you for that information please leave this with me and I will get my advice ready for you on how to proceed with this. I will get back to you ASAP There is no need to wait on here I will email you when ready regards Ben.
Customer: replied 1 year ago.

Ok, thanks Ben,

Do you need any more info from me at this stage? A copy of the contract etc.?

Expert:  Ben Jones replied 1 year ago.
Many thanks for your patience. It is highly unlikely that this clause they are referring to would be enforceable. Such restrictions are difficult to enforce at the best of times and they would need to have been specifically brought to the attention of the employee before being accepted in writing such as by being part of the contract. A solitary mention that they are contained in a handbook somewhere which was not even made available to you at the time of accepting the contract will not really be enough and the employer will have a hard time trying to prove that this was a properly communicated clause which you had knowledge of and had agreed to.
As far as the general law on this clauses is concerned, 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.
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. In this case I would say that it'll be rather difficult for the employer to justify the clause as being enforceable in any way.
I hope this has answered your query. Please take a second to leave a positive rating, or if you need me to clarify anything before you go - please get back to me and I will assist further as best as I can. Thank you
Expert:  Ben Jones replied 1 year ago.
Could you please let me know if this has answered your original question or if you need me to clarify anything else in relation to this? It is important for us to know either way so we can track customer satisfaction or identify whether I need to help you further? Thanks

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