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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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I am the Registered Manager of a domiciliary home care agency

Resolved Question:

I am the Registered Manager of a domiciliary home care agency that provides home care services to elderly people living in their own homes.
I have recently accepted a new job with another domiciliary home care agency. I've handed in my notice to my current employer and they've accepted it. However, in doing so, they have pointed out that I have a clause in my contract (restrictive covenant), which reads:
“Immediately following termination of your employment (whosoever terminates the contract) you will not, for a period of 12 months, take any of the following actions (directly or through a third party) which relate to your employment with the Company:
* Within the area covered by the Company, being involved with any activity or business which competes (or will compete when established) with the Company in any area that you were involved in during your employment.”
To be honest, I signed my employment contract without reading it properly, so this has come as a bit of a shock. The problem is that domiciliary home care agencies tend to cover quite a wide geographical area, so finding one to work for that doesn’t have some geographical overlap with the company I’m leaving would likely require me to either travel a long way to work, or move house. There are a couple of other clauses in the contract, which appear to protect their legitimate business interests (such as not poaching any clients) and I have no intention of breaching these. It’s just that this particular clause basically says I can’t work for a competitor, which seriously inhibits my ability to find a job. If I adhere to it, I’ll need to turn down my new role and start looking for something else; my career choices are going to be seriously limited, or I’m going to have to move away from the area (impractical), or change career (a bit extreme?)
So my question is this: Is this clause something my employer will be able to keep me to, or is it too broad?
Submitted: 1 year ago.
Category: Law
Expert:  Ben Jones replied 1 year ago.
Hello, my name is***** am a solicitor on this site and it is my pleasure to assist you with your question today. How would you working for the new employer affect the current one? Would you use any confidential data from them in your new job, take clients, etc?
Customer: replied 1 year ago.
Hi Ben, working for the next client shouldn't affect the other one. I wouldn't be taking any clients, or trying to. There's one county council client that both my current employer and my new employer already work with and that's the only overlap as far as I'm aware. They're just telling me I can't work for a competitor that covers the same geographical area. The clause I mentioned in my question is the only one that worries me. The other restrictive clauses don't give me a problem.
Expert:  Ben Jones replied 1 year ago.
Thank you for your response. I will review the relevant information and will get back to you as soon as possible. Please do not respond to this message as it will just push your question to the back of the queue and you may experience unnecessary delays. Thank you
Expert:  Ben Jones replied 1 year ago.
Thanks for your patience. 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, such as the one in your case, 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. In your case it is unlikely that it would 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:
• 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. However, as mentioned, in your case it is quite unlikely that the clause would be enforceable as it just prevents you from working for a competitor rather than trying to protect any specific and genuine interests the company may have.
I trust this has answered your query. I would be grateful if you could please take a second to leave a positive rating (selecting 3, 4 or 5 starts at the top of the page). If for any reason you are unhappy with my response or if you need me to clarify anything before you go - please get back to me on here and I will assist further as best as I can. Thank you
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 46184
Experience: Qualified Solicitor - Please start your question with 'For Ben Jones'
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