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JGM, Solicitor
Category: Employment Law
Satisfied Customers: 13186
Experience:  30 years experience as a solicitor.
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I need advice regarding restrictive covenants included in my

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Hi, I need advice regarding restrictive covenants included in my new employment contracts. I'd like to know how enforceable they are, since the time frame specified is 12 months.
Customer: replied 9 months ago.
I work for a Lighting Manufacturer in the UK, since April 2014. I started a new position last September as Project manager and now they asked me to sign the new contract. At the ends it says:Restrictive Covenants
Each of the post termination restrictions outlined below is independent and severable and if any provision should be unenforceable if part were deleted, it shall apply with such deletions as may be necessary to make it enforceable.You acknowledge that the restrictions in the clause are fair and necessary to protect the legitimate business interests of the Company and you undertake to inform a prospective new employer of this clause. You agree that, for a period of 12 months from the date of termination of this contract of employment:1. you shall, unless first obtaining written authority signed by a director of the Company, be restricted from disclosing or making use of any information in your knowledge or possession relating to the Company's secret processes of research, development, or product design, or any other information of a sufficiently high degree of confidentiality to amount to a trade secret.
2. and for the period of this contract, you shall not directly or indirectly solicit or endeavor to entice away from the Company any employees who are employed by the Company during the course of your service with the Company.
3. you shall neither on your own behalf nor for any other person, company or organization by way of trade seek to obtain orders for any services of a type or class with which you have dealt with, or which you have provided, on behalf of the Company during a period of 6 months prior to the termination of your employment nor for the said 12 month period shall you solicit or deal with the customers of the Company to place orders for that type of service elsewhere.
4. you shall not use any sales or marketing information belonging to the Company
5. you shall not solicit or deal with any client of the Company with whom you dealt personally in the last 6 months of your employment.I'm particularly worried about point 3 and 5, since I was already planning or leaving this job towards the end of the year and start either my own design activity (as an independent Lighting Designer) or to look for another job in Italy. Since I have more chances to remain in my field of work, I would have looked for a job in a similar Lighting Manufacturer Company.Would these restrictive covenants impede me to work for 12 months for another Lighting Company (as an employee) or even to work as a freelance in the same field (lighting specifications, from this and other manufacturers)? In this second case, I was planning to start working as a exterior consultant for an architect (also friend), who at the moment is in the clients' list of my current Company. Since not geographic area is specified in the contract, I would assume that this will apply to wherever I may end up living, the UK or Italy.Thank You

Yes, these covenants would cause you a problem. They would be enforceable as regards ***** ***** and 5. They have taken their time over asking you to sign these if your promoted position was last September. Any reason?

Customer: replied 9 months ago.
They were reviewing everyone's contracts. I just found out about these clauses because I took the time to read the contract without signing it immediately. Does it mean I can not even work as an independent consultant / designer?

Yes it does. I would not advise you to sign this.

Customer: replied 9 months ago.
Thanks for your reply. I read that if the clauses are not too specific in the terminology, they are not really enforceable and I was hoping this was the case. How can they prevent me from working for 12 months? Would you advise to talk to my Managers and try to negotiate a shorter period, maybe 3 or 6 months?
Customer: replied 9 months ago.
I just noticed that the date of employment stated on the contract is 2014 but the Job title is the one obtained just last September. Doesn't it look like that I had this role since 2014 and therefore it's more reinforceable?

The clauses are quite specific in their terms; the issue is whether they are reasonable and that depends on your particular industry. I suspect they would be upheld and that is why you shouldn’t sign them. As you rightly say in your last narrative, they have given you the promoted post already but didn’t change your written terms at the time. I suggest that they can’t do so now.

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