Employment Lawyers Can Answer Your Employment Law Questions
Hello, my name is ***** ***** it is my pleasure to assist you with your question today. Does this restriction apply once your employment has terminated?
for a period of 6 months following the date of termination of your employment, be engaged, to any other business which supplies services which are competitive with those supplied by the company at the date of termination.
if you were to work for a competitor, how would that affect your current employer?
As the job would be different there is no conflict of interest that i can see, as i have been away for 11 weeks i would not know what is happening there now.
ok thanks let me get my response ready please
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:
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. A wide restriction that does not cover a specific region, radius or serves to protect a specific LBI is unlikely to be enforceable and in this case I do not see what the employer could realistically rely on to show it was a reasonable restriction.
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:
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 clarifies your position? If you could please quickly let me know that would be great, as it is important for us to keep track of customer satisfaction. Thank you
It appears that the situation is not so simple, should i contact my previous company to see if they will say it is okay to work for a competitor?
it is not always simple but at the same time in this case it is unlikely that such a restriction would be deemed enforceable. You could ask the employer for their consent but if they refuse to agree to it you are left in the same position. It could also put them on notice that you are considering joining a competitor, which they may not have necessarily found out if you had done otherwise
Does this answer your query?
It seems there is no official answer and it is a grey area. Thanks anyway.
there is no official answer because it would depend on the wording of the restriction and what it is trying to protect - it is unfortunately not a matter of simply saying is this legal or is it not - it would depend on many factors, the most common of which I have covered above
Thanks and gooodbye
you are welcome, all the best