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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 48176
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I resigned from my employment last Tuesday 16th February. I

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I resigned from my employment last Tuesday 16th February. I am on three months notice. They have agreed for me to leave on 24th March 2016. They are paying me the 7 weeks I will not be there but they have also insisted I sign a form that quotes from the company handbook 2 sections on confidentiality of existing customers and documents. Im a Salesman in an IT Company. If I sign their document does it have any value. To complicate matters the company I work for was acquired just over 12 months ago. The original Contracts of employment were quite flimsy and have no statements in about confidentiality.
Submitted: 1 year ago.
Category: Law
Expert:  Ben Jones replied 1 year ago.
Hello, my name is***** am a qualified lawyer and it is my pleasure to assist you with your question today. Are you intending on breaching these clauses?
Customer: replied 1 year ago.
yes Im moving to another IT company I would like to contact my existing customers I enclose the 2 brief clauses:The Staff Handbook Confidentiality Clause: Confidentiality
During your employment by the Company and at all times after it has ended, you will keep secret and not use nor disclose nor copy to any person firm or company:-• information concerning or related to the research, design, development, manufacture and sale of products and services undertaken by the Company or any of its subsidiary or associated companies either alone or jointly with any person, firm or company; and• information concerning or related to the general business operation of the Company including, but not limited to prices, sales figures, costs profits, pricing methods, organisation, client lists, processes and equipment.You also agree that you will keep all clients’ affairs strictly confidential and that you will not use nor disclose nor copy any such information to any other person.
Customer: replied 1 year ago.
This is the bulk of the letter ....
Dear *****,I understand you resigned from Version 1 on February 16th 2016. This letter acknowledges receipt of that resignation.Your notice period is 12 weeks. I understand that you have requested and agreed with Joe O’Brien that your last day will be Thursday 24th March 2016. Subject to agreed conditions as follows, this will be deemed your last day of employment with Version 1.• Joe has agreed to pay the remaining 7 weeks (to May 9th) of notice in lieu. This is by exception and at Version 1’s discretion and will be paid with the final payroll. It is subject to achievement of objectives as agreed between you and Joe. These objectives are documented on the next page for your agreement. Joe does reserve the right to change the leave date if anything significant happens which requires him to do so.• We will also pay a bonus of £5,000 (which would be taxable as normal) in the next available payroll six months after your employment ends subject to:(i) You contributing positively to our bids for Birmingham and Brunel and us winning both of those bids; and
(ii) You agreeing to abide by the restrictions on confidentiality in the staff handbook – a copy of the relevant section is enclosed overleaf.Assessment that these conditions have been met will be made by Joe O’Brien.If you are in agreement with these conditions, then please sign and return this letter and we will proceed as outlined above with regard to your last day of employment.
Expert:  Ben Jones replied 1 year ago.
Is the staff handbook referenced in your existing contract of employment?
Customer: replied 1 year ago.
No
Customer: replied 1 year ago.
The Contract is 12 years old its 2 pieces of paper no mention of a staff handbook
Customer: replied 1 year ago.
No its not
Expert:  Ben Jones replied 1 year ago.
If they do not agree to let you go early, are you willing to work through your full notice period?
Customer: replied 1 year ago.
They have agreed to let me go early. Im leaving on trhe 24th March. I have a new job commencing on the 29th March. What I needed was re assurance that if I sign the letter they sent to me its not worth anything if I go after any of my existing accounts
Expert:  Ben Jones replied 1 year ago.
Well it would be impossible to give you such reassurance because you would be bound by a restrictive covenant in the circumstances. Whilst these are not always easy to pursue and enforce, they are still legal and the employer can try to take matters further in the event of a breach. They have the right to protect the legitimate interests of their business and that includes looking after their confidential information, client base, contacts, etc. No one can give you a guarantee that you can sign the clauses in question, completely ignore them and not be liable as a result – that would be negligent advice. The laws on restrictions are complex but there are certain principles which a court would look at to establish if the covenants should be deemed enforceable or not. This is why you cannot be given reassurances that you will be safe in the event of a breach, because even though you may try and argue that you should not be held liable, a court may find otherwise. This is your basic legal position. I have more detailed advice for you in terms of the principles that will be taken into account when determining the enforceability of such restrictions, which I wish to discuss so please take a second to leave a positive rating for the service so far (by selecting 3, 4 or 5 stars) and I can continue with that and answer any further questions you may have. Don’t worry, leaving a rating will not close the question and we can continue this discussion. Thank you
Expert:  Ben Jones replied 1 year ago.
Hello, I see you have read my response to your query. Please let me know if this has answered your original question and if you need me to discuss the next steps in more detail In the meantime please take a second to leave a positive rating by selecting 3, 4 or 5 starts from the top of the page. The question will not close and I can continue with my advice as discussed. Thank you
Customer: replied 1 year ago.
Thanks for your help
Expert:  Ben Jones replied 1 year ago.
You are welcome
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Expert:  Ben Jones replied 1 year ago.
Thank you. 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:{C}· Goodwill (including supplier and customer connections){C}· Trade secrets and confidential information{C}· 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:{C}· Obtain an interim injunction preventing the employee from doing certain things that would make them in breach of the restrictive covenant{C}· 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.