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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 50144
Experience:  Qualified Employment Solicitor
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I am considering working for a new employer, which is a direct

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I am considering working for a new employer, which is a direct competitor of my current employer.
My notice period for my current employer is 3 months and I also have a non-compete clause, which states that I covenant with my current employer not to work for any competitor for 3 months following Termination.
‘Termination’ is not defined clearly in the contract. However, it contains a reference to Garden Leave, as follows (there’s no other reference to this):
“The Employer may, in its absolute discretion, reduce the period for which the restrictions in [the non-compete clause] apply by any period that you spend on Garden Leave immediately before Termination.”
I expect that the employer will want to put me on Garden Leave or restrict my access/activities.
Is the clause clear enough to allow the employer to put me on Garden Leave (i.e. full pay but no work to do except being ‘available’ to work if needed)?
In a scenario in which I am put on Garden Leave from the day I give Notice, would I be able to start work for the new employer 3 months after handing in notice or 6 months after handing in notice (i.e. 3 months’ notice + 3 months covered by the non-compete)?
Ben Jones : Hello, my name is ***** ***** it is my pleasure to assist you with your question today. How long have you worked there for?
Customer:

About 15 months

Ben Jones :

Apologies for the slight delay, I experienced some temporary connection issues earlier on. All seems to be resolved now so I can continue with my advice.

If an employer wants to place you on garden leave they would ideally need a specific clause in the contract allowing them to do so. However, it is not uncommon for garden leave to be applied even in the absence of such a clause and whilst technically it may amount to a breach of contract, this would only be an issue if you end up losing out on any remuneration as a result (e.g. bonuses/commission), or if your skills are seriously affected by the lack of work during that period (usually only applicable to highly skilled or manual jobs where you need to be actively working to retain your skills). The clause you mentioned could allow the employer to place you on GL even if it does not specifically deal with this option, however the mention that GL is a possibility could work in their favour.

As to when you may start working for a competitor, the restriction applies for 3 months after termination. This would be the date your contract actually terminates. When you are on GL your contract continues to be in operation and as such the clause would only apply once the GL has finished, meaning it would continue for 6 months from the date you hand in your notice (assuming you spend the full 3 month notice period on GL).

However, such clauses can often be unenforceable due to their unreasonably restrictive nature. So even though you may be prevented from working for a competitor, assuming that you do not affect any of the employer’s legitimate business interests (such as trying to poach clients, using confidential or trade secrets against them, trying to poach employees, etc), it would be unlikely that such a restriction would be enforceable as it would be seen as too restrictive. So if you simply go to work for a competitor, have no influence over the business of the ex-employer and use your connections or influence to damage it, then the likelihood is that the clause may not be legally applicable anyway.

Hope this clarifies your position? If you could please let me know that would be great, thank you

Customer: Thanks, ***** ***** great answer. Sounds like the biggest question is enforceability of the non-compete. Assuming I work currently for a retailer in marketing (doing eg pricing, marketing etc) and would be doing much the same thing at the new employer (ie competing for the same customers in the wider marketplace, but not specifically targeting their customers or client lists, ex employees etc.) do you think this would be sufficient to mean the non compete is enforceable?
Ben Jones :

Hi, this would depend on your influence in the industry and how you go about your job. If you will be using your new employer's leads and not be using any confidential information, trade secrets or client lists of your old employer then it is unlikely that such a restriction would be enforceable.

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