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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 49816
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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Im curently in a delema I currently work for a building

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Im curently in a delema
I currently work for a building maintenance company ive been with them 4 months (still on probabtion) but I hate it so I I handed my notice in last week,
I have another job to go to but I had a curveball in that a client of my current employer was not happy with this and has asked me to work direct for them,
Now the catch is the position isnt available until Jan so up to that point id have to contract in to them.
But I have concerns the convernant would prevent we working there even though the duties are different.
Has anyone got any input on this.
This is what my contract states-
"Restricted Customer"
any firm, company or person who, during the 12 months before Termination, was (a) a client or prospective client of the Company for whom you carried out any work or (b) in the habit of dealing with the Company or referring work or clients to the Company and in both (a) and (b) above, with whom You had contact or about whom You became aware or informed, in the course of your employment.
anyone employed by the Company or any other Group Company at the level of director; area manager; account manager; project manager; project engineer; service manager; office supervisor and site supervisor or above and with whom You dealt with in the 12 months before Termination in the course of your employment.
Post-Termination Restrictions
21.1 It is recognised that as a Services Engineer within the Company, you will have access to:
21.1.1 clients and referrers of clients;
21.1.2 confidential and potentially commercially sensitive information relating to those
clients and referrers;
21.1.3 suppliers and contractors who the Company work with;
21.1.4 financial plans, proposals and details of income or financial performance relating
to the Company, and
21.1.5 general documentation and other extraneous and/or sensitive and/or confidential
21.2 Such information is regarded as the property of the Company and it is recognised by You
that the Company are entitled to protect that property.
21.3 It is recognised that you will be expected to work professionally with and for clients and
referrers of clients, therefore will build professional relationships with those individuals. It is recognised that you will be expected to work within a team and will build professional relationships with your colleagues. It is recognised that the Company are entitled to
protect those relationships with clients, referrers of clients and colleagues.
21.4 In order to protect the Confidential Information, trade secrets, clients and other business
connections of the Company to which You have access as a result of the Appointment, You covenant with the Company that You shall not:
21.4.1 for 12 months after Termination solicit or endeavour to entice away from the
Company the business or custom of a Restricted Customer with a view to providing goods or services to that Restricted Customer in competition with any Restricted Business; or
21.4.2 for 12 months after Termination in the course of any business concern which is in competition with any Restricted Business, offer to employ or engage or otherwise endeavour to entice away from the Company, or otherwise facilitate the employment or engagement of any Restricted Person, regardless of whether or not such person would be in breach of contract as a result of such employment or engagement; or
21.4.3 for 12 months after Termination, be involved with the provision of goods or services to (or otherwise have any business dealings with) any Restricted Customer in the course of any business concern which is in competition with any Restricted Business: or
21.4.4 at any time after Termination, represent yourself as connected with the Company in any Capacity, other than as a former employee, or use any registered business names or trading names associated with the Company.
21.5 If, at any time during your employment, two or more Restricted Persons have left their
employment, appointment or engagement with the Company to perform Restricted Business for a business concern which is, or intends to be, in competition with any Restricted Business, You will not at any time during the six months following the last date on which any of those Restricted Persons were employed or engaged by the Company, be employed or engaged in any way with that business concern under which You will perform Restricted Business on the behalf of that business concern.
21.6 None of the restrictions in clause 21.3 shall prevent You from holding an investment by
way of shares or other securities of not more than 5% of the total issued share capital of any company, whether or not it is listed or dealt in on a recognised stock exchange; or
21.7 The restrictions imposed on You by this clause 21 applies to You acting:
21.7.1 directly or indirectly; and
21.7.2 on your own behalf or on behalf of, or in conjunction with, any firm, company or person.
21.8 The periods for

Hello, my name is***** am a qualified lawyer and it is my pleasure to assist you with your question today.

Customer: replied 1 year ago.
Hi there

Hi there. Was there a probationary period with the building maintenance company that you worked for?

Customer: replied 1 year ago.
which im still in its 6 months and im on month 4

OK thank you, ***** ***** it with me. I will be in court today so will prepare my advice during the day and get back to you at the earliest opportunity. There is no need to wait here as you will receive an email when I have responded. Thank you.

Customer: replied 1 year ago.
Ok thanks

No problem at all

Many 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:

{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 fact you have worked there for only 4 months are going to do different duties and not take away any business of the employer will all work in your favour.

I hope this has answered your query. I would be grateful if you could please take a second to leave a positive rating (3, 4 or 5 stars) as that is an important part of our process and recognises the time I have spent assisting you. 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

Customer: replied 1 year ago.
Ok my biggest concern is the few months between now and January when the full position becomes available il be self employed working for them and im worried this could be seen as competition regardless of duties.
Would this be the case or does it not matter what way im employed the same rules apply?

Essentially, the key is by you working for them, whether employed or self employed, will they be losing business as a result?

Customer: replied 1 year ago.
Not as far as I can see I currently maintain the property and the position is to primarily maintain the manufacturing equipment with some marginal property duties and also the position will be there in January regardless of me filling it or not

So the chance are that this will not be covered under the restrictions and the employer will find it rather difficult to stop you, also they cannot really seek any compensaiton if they have not suffered losses as a result which appears they won't.

If your original question has been answered I would be grateful if you could please quickly rate my answer by selecting 3, 4 or 5 starts at the top of the page - it only takes a second to do and is an important part of our process. I can still answer follow up questions afterwards if needed. Thank you

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