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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 47418
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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I am a contractor working Dutch company. They have issued

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I am a contractor working for a Dutch company. They have issued me a new 'Professional Services Agreement that says I am 'prohibited from entering the employ or from working in any manner for any business that is involved in the same or similar trade for a period of 24 months'.
The problem is that i came to them from a competitor and I am working (and have been for many years) working in a highly specialised market. This business in biometrics and specifically biometrics used in Governments in Africa....
Can they insist I sign this non compete clause?
Submitted: 2 years ago.
Category: Law
Expert:  Ben Jones replied 2 years ago.
Hello, my name is ***** ***** it is my pleasure to assist you with your question today. You have posted your query in our UK law section are you happy to receive a response based on the UK legal position?
Customer: replied 2 years ago.

Hi Ben,

The following are the issues as I see them;

1. I am listed as a 'Sales Director' for Genkey - a Dutch company on their website.

2. However I am actually an independent contractor. They have just issued a new Professional Services Agreement which contains the following;

'the laws of Netherlands governs this agreement'...So I guess I can't use UK law.

3. The contentious issue is that they are basically stopping me from working in this industry (an industry where I have been working for the last 10 -15 years - dependent on what you define as 'similar' - which is the term they use). This agreement prohibits me from working in this industry or similar for 24 months or I could be liable to a €1,000 per day that I am working with another company., should I exercise my right to leave their 'employ'.

I hope the legal advice (from EU) will be that this violates my right to work - and that because I came to them having already successfully worked in this industry for many years that they are impinging my rights.

Furthermore they will NEVER be able to recruit anyone (with relevant experience) with this term in their contract - so my next concern is whether this is a clumsy attempt to get me to leave them as I get older. (I am now 61).

Thanks,

Patrick

Expert:  Ben Jones replied 2 years ago.
ok I will transfer your quesiton to our European law seciton and hopefully someone will take this up. No need to respond as it will just lock the quesiton back to me, thanks
Customer: replied 2 years ago.

Dear Ben,

I saw your mail (which states I did not reply to the ABOVE message. Unfortunately i can't connect to your server to reply to that message. Instead I am reiterating to you that I DID REPOND yesterday and as you will see from this link I supplied additional information.

It seems i am waiting for someone with an understanding of EU employment (or more specifically) self-employed contractor employment rules to explain whether I can reject the clause described above. Please adjust your records to reflect that i have responded to your email.

I would appreciate a reply with some sort of information as soon as possible.

Regards,

Patrick XXX

Customer: replied 2 years ago.

I am still looking to hear from an expert in EU employment (or contractor law).

I am a self employed contractor but am governed by a 'Professional Services Agreement' and this agreement seeks to prohibit me from working in this industry (without written permission) for the next 2 years or face a €1,000 per day fine.

Please ask someone with knowledge of EU law to respond. I originally submitted my question on Monday so would appreciate some response...

Expert:  Nicola-mod replied 2 years ago.
Hello,
I've been working hard to find another Professional to assist you with your question, but sometimes finding the right Professional can take a little longer than expected.
I wonder whether you're ok with continuing to wait for an answer. If you are, please let me know and I will continue my search. If not, feel free to let me know and I will cancel this question for you.
Thank you!
Nicola
Customer: replied 2 years ago.

Hi Nicola,

I can wait a little longer. I was supposed to sign this agreement yesterday but i think I can delay a few more days. However if it is proving difficult to find someone with EU law expertise then please pass it back to a UK law expert to ask ...'if this was governed by english law then what would be the opinion of the english law expert...'

at least I can then respond to say that under english law it would be ......etc, etc...

Thanks,

Patrick

Expert:  Nicola-mod replied 2 years ago.
Hello,
We will continue to look for a Professional to assist you.
Thank you for your patience,
Nicola
Expert:  Ben Jones replied 2 years ago.
Hello Patrick, I am taking this up again as I see you wanted a point of view from UK law, which I can certainly provide. I can’t say how similar they would be to Dutch laws but generally in Europe you can see many similarities so I would expect that at least some of the following information will also be relevant in Dutch law.
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.
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
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 47418
Experience: Qualified Solicitor - Please start your question with 'For Ben Jones'
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