How JustAnswer Works:
  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site. Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.
Ask Ben Jones Your Own Question
Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 52600
Experience:  Qualified Solicitor
29905560
Type Your Law Question Here...
Ben Jones is online now

Summary: I have been working with a medical device company

This answer was rated:

Summary:
I have been working with a medical device company for 2 years and 8 months in total; 10 months as a contractor in the past and currently 1 year and 10 months as Regional Sales Manager for London. During my time I have had a good relationship with all staff, including the CEO and Financial Director (FD), however have not had a great relationship with my direct manager (Sales Director, now appointed to Group Managing Director).
I have been demotivated in my job for some time now and have approached the CEO and FD for promotion and progress on 2 or 3 occasions. We didn't get anywhere so I have been looking for suitable roles externally. I have also been told to do this by my colleagues as my success would be restricted in this company. A job came up and is everything that I have wanted to do for such a long time and I was really excited about it. It is for a direct competitor but I really want to take the job, as it is in the line of work I want and better salary for my home and better life, as it is tough at home, especially in London.
I have looked in my contract and my notice period is 8 weeks and there is a Restrictive Covenant which states "Competition-
If you leave the service of the Company, for whatever reason, you will not work for yourself or another pharmaceutical company for a period of 6 months from the Termination Date." This means I will be out of work and de-skilled if I do anything else.
Conversation with CEO:
On Thursday 5th April, I sent an email to the CEO and FD to say I was leaving the company and would like to discuss my contract and leaving terms/ exit in good faith. The CEO asked my to call him to speak about this and we spoke at 15:30-16:15. I voiced my reasons for leaving again, I am going to a direct competitor and asked to negotiate my leaving terms as they are not fair or reasonable (notice period and competition clause). He asked me to give him 2 days to look at the contract and seek advice. I proposed a negotiation in good faith to waiver the unreasonable 6 month clause and for a 4 week notice period and 3months non-solicitation of clients in return.
I didn't get a reply by Monday 9th April 18:30 so I sent a polite carefully toned follow up email to say it would be good to negotiate these terms quickly so we can both move on.
I received a reply from the CEO on Monday 9th April to say can you please send me your resignation. It's best if you do this asap, we can then take it from there.
I replied on Monday 9th April 20:57 to say I would like to discuss the terms of the resignation with you. Please can we discuss in the morning?
I received a reply on Tuesday 10th April 10:34 saying this matter has now been passed to legal and HR and all discussions will be done formally.
I replied on Tuesday 10th April 12:19 to please instruct their HR person to contact me (they do not have a HR department).
Conversation with Sales Director:
On Tuesday 10th April 15:12, I then received an email from my direct manager (Sales Director), to say he has seen an email chain regarding talks of leaving the company and would like me to send a resignation.
I replied on Tuesday 10th April 15:34 to say I have been awaiting contact from their HR team and would like to propose a leaving date of 7 weeks from now. If this is acceptable I will hand in my notice.
I received a reply on Tuesday 10th April to say I would need to follow 8 weeks notice and he would like to point out your RESTRICTIVE COVENANTS. I know my Sales Director is unlikely to cooperate.
I haven't handed in my resignation yet.
I have also spoken to ACAS, who endorse the steps I have taken so far have been professional.
I have taken the next 3 days off as annual leave to deal with this.
Other points to note- I can't remember if I signed a contract as I don't remember reading the clause and also the Restrictive Covenants come after the signing page in the contract so not sure if this is legally binding too.
-----
What do you advise me to do? And best course of action?
If they do not co-operate with my proposed exit terms what happens? What do I need to do and follow?
If I continue to go and work for the new company in a different role i.e Business Analyst Role, what happens?
What potential legal action can I face? What would be the sanctions or penalties? And costs incurred to me?
Do I need to resign as soon as possible? How do I resign? I was planning to send email below? Please advise?
Resignation Email:
Hi Name,
Thank you for your email.
This is a formal resignation effective from Wednesday 11th April.
Thank you for pointing out the Restrictive Covenants. I also noted these and sought advice. According to the legal person I have spoken to, due to the geographic area not being stated and the broad remit of the restrictive covenant regarding “you will not work for yourself or another pharmaceutical company for a period of 6 months from the Termination Date”, this is not fair and reasonable and is not legally enforceable.
I would like to negotiate fair and reasonable leaving terms in good faith on exit, which will work for us both.
- I would ask for my end date to be Friday 25th May. I feel 7 weeks a good compromise.
- and will agree to 3months non-solicitation in areas where I have worked and have had success; namely Central London, West London, Hammersmith and Fulham, Hounslow, Ealing, Hillingdon, Harrow, Islington, Camden, Brent, City and Hackney, Haringey, Barnet, Barking and Dagenham, Redbridge, Tower Hamlets, Waltham Forest, Havering, Newham, Kingston, Croydon, Merton, Sutton, Bromley, Lewisham, Southwark, Greenwich, Lambeth Clinical Commissioning Groups.
This will give company name 5 months protection of legitimate business interest.
Hope this is a fair and reasonable compromise and wish you the best in the future. I hope to settle this with you as soon as possible. - End of email-
Please help?

Hello, my name is***** am a qualified lawyer and I will be assisting you with your question today.

Customer: replied 7 months ago.
Hi Ben, thank you so much.

Is it possible to upload a copy of your contract on here for me to look at please?

Customer: replied 7 months ago.
Uploaded

OK, thank you for sending me the attached document. Leave it with me for now and I will review the relevant information and laws 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. Also, please do not respond to this message as it will just push your question to the back of the queue and you may experience unnecessary delays. Thank you.

Thanks for your patience. I do agree that the current clause is rather broad and general and as such may be difficult to enforce. Stopping you from working for ANY pharmaceutical company is very unlikely to be fair or reasonable and as such the enforcement of that specific clause as it stands will be difficult. Had they taken the time to provide a more precise and less restrictive clause, it could have worked for them,

To answer your queries:

What do you advise me to do? And best course of action?

That is always difficult to advise on as there is no such thing as right or wrong or even best course of action – it very much depends on the employer, what they plan on doing about it and how aggressively they are willing to pursue this. Some employees will just ignore the clause and take their chances on the assumption it would be difficult to enforce, especially if you are unlikely to be directly affecting their business and using any trade secrets, confidential information, etc.

If they do not co-operate with my proposed exit terms what happens? What do I need to do and follow?

If they do not agree to these, you have to decide whether to leave anyway and as mentioned above, take the risks associated with a potential breach of this clause. To be able to do anything about it the employer must either take out an injunction, which would prevent you from working for that company or restrict what you can do with them for a period of time, or seek a claim for damages suffered as a result of your breach. They may never go as far as court, they may just issue threats but never actually sue you. Even if they did, a court would not just grant an injunction and will only do so if they are satisfied you working for the new company poses a serious risk to the ex employer and their legitimate business interests. As to claiming damages – they have to show you have caused them business losses, like taking away business or using the sensitive information obtained from them against them. That can be rather difficult

If I continue to go and work for the new company in a different role i.e Business Analyst Role, what happens?

It would make the restriction less likely to be enforceable. Clearly, the contractual restrictions were aimed at restricting you from working for them in the role you worked in with the ex employer. If you go and do something else, the chances of you using any information, links, etc will be reduced.

What potential legal action can I face? What would be the sanctions or penalties? And costs incurred to me?

I discussed some of this above already. There are no penalties as such, you do not get penalised for breaching this, but you can get sued for direct losses incurred, such as loss of business, if you poach clients away or use sensitive information to the new employer’s advantage and in turn affect the old employer’s business.

Do I need to resign as soon as possible? How do I resign? I was planning to send email below? Please advise?

If you resign you would need to work your contractual notice period so time it based on that. The email you have composed is fine, but do not expect them to agree to it that easily. However, you have nothing to lose by sending that because they cannot make things worse than they are now, the worst outcome is that you are left in the same situation you already are in.

I trust this has answered your query. Please take a second to leave a positive rating by selecting 3, 4 or 5 stars above - this is an important part of our process and recognises the time I have spent assisting you. If you still need me to clarify anything else, please reply on here and I will assist as best as I can. Thank you

Customer: replied 7 months ago.
Reference:
If they do not co-operate with my proposed exit terms what happens? What do I need to do and follow?
If they do not agree to these, you have to decide whether to leave anyway and as mentioned above, take the risks associated with a potential breach of this clause. To be able to do anything about it the employer must either take out an injunction, which would prevent you from working for that company or restrict what you can do with them for a period of time, or seek a claim for damages suffered as a result of your breach. They may never go as far as court, they may just issue threats but never actually sue you. Even if they did, a court would not just grant an injunction and will only do so if they are satisfied you working for the new company poses a serious risk to the ex employer and their legitimate business interests. As to claiming damages – they have to show you have caused them business losses, like taking away business or using the sensitive information obtained from them against them. That can be rather difficult- in relation to your answer can they only take me to court to take out the injunction for and during the 6months after termination of contract?- can they sue me for damages/ sensitive data used against them after the 6months? Or for any other reason? How would they prove this?-Can they use things against me like files downloaded or transferred to a USB? And can this only be in the 6month period? (I did to remove personal files and provide handover)- is the termination date the date I resign or date notice period finishes?- can they fire me during my notice period for any other reasons? Or construct a dismissal during my notice period? If yes, what is the best thing to do?- is your advice today legally binding?I will definitely give you a great review. You have been excellent and very prompt so far. Really appreciate :) Thank you

Hello again, to answer your further queries:

- in relation to your answer can they only take me to court to take out the injunction for and during the 6months after termination of contract?

Yes, it is very unlikely they can continue preventing you from doing anything after the restrictions would have naturally come to an end

- can they sue me for damages/ sensitive data used against them after the 6months? Or for any other reason? How would they prove this?

Once the 6 month restrictive period is over, you can do as you please. What you cannot do is use data you have ‘stolen’, which belonged to them., For example, some people copy client lists or other sensitive information or email it to themselves. Using this, even after the 6 months, could be an issue,. However, if you are only using knowledge you have obtained in the course of the employment, things you have simply learnt and remembered, then that is not an issue.

-Can they use things against me like files downloaded or transferred to a USB? And can this only be in the 6month period? (I did to remove personal files and provide handover)

As discussed above. If you have kept any data which was only for the purposes of a handover and does not belong to you, then delete it. They may potentially find out you had taken it, but unless you used it against them and caused them losses as a result, they cannot do much, apart from ask you to confirm you have destroyed it and won’t be using it in the future.

- is the termination date the date I resign or date notice period finishes?

The date your notice period runs out

- can they fire me during my notice period for any other reasons? Or construct a dismissal during my notice period? If yes, what is the best thing to do?

Yes they can. You continue being an employee during the notice period and if they find a reason for dismissal, usually for gross misconduct, they can potentially dismiss you then. It is impossible to say what you can do until you know what you are being accused of. You just have to hope they do not go down that route for now

- is your advice today legally binding?

No, due to the way the site works, this is nor official legal advice. However, it is the same content I would have given you had I seen you in person and formally taken you on as a client.

Hope this clarifies a bit more?

Customer: replied 7 months ago.
Can they sue you or take you to court for gross misconduct after you have left employment? And for how long afterward?I'm worried most about mileage and files downloaded...I know these guys find a way and have a history of doing this to other leavers so am worried for any inaccuracies over the last few years? However nothing has been raised to dateWhat's the best strategic way to approach this?

As mentioned, it is difficult to say how to approach this, especially as I do not know what they know and what information they have, or what they could potentially find out and how. You cannot predict these things. I can say you should advise them of the copying of files and confirm they have been deleted and not be used, but that could just open up a can of worms, when they may have never found out about it. Similarly with mileage – if you know there are discrepancies then you should highlight these to them and make sure everything is above board but I cannot promise you that whatever you do they will not try and find a way anyway

Customer: replied 7 months ago.
Can they sue me or take me to court after I have left? Or within a time period afterward?
Customer: replied 7 months ago.
For gross misconduct regarding the above?

They cannot take action for gross misconduct after you leave but if you have caused them losses because of what you did they can sue you for these even after you leave

Customer: replied 7 months ago.
Within 6months or any time frame?
Customer: replied 7 months ago.
What would be the penalties or sanction to me if for example there were numerous mileage discrepancies upto the value of £500 over 2 years?Would it be worth sueing me or taking me to court?What would be my defence? Or could be my defence in court?Are there any mitigating circumstances here?
Customer: replied 7 months ago.
If they are investigating, do they need to let me know? Or certain procedural steps?Sorry for 3 separate messages

Any time frame. They can only sue you for the actual losses so any proven discrepancies. They cannot penalise you more than that. I cannot give you a defence now without having no idea on what happened and in any event it would not be possible on a simple Q&A site like this. If they are investigating there is no obligation to tell you now they can just take it further if they want so until they tell you you nah not know.

Customer: replied 7 months ago.
Can they report me to the HMRC? Or my professional body?And then can they take action against me if not my current employer?

There is nothing stopping them from reporting you but whether any further action is taken dpeends on whether you have actually done anything wrong, especially deliberately. They cannot take action against you apart from recover any money you have been paid out or claimed without being able to do so.

Customer: replied 7 months ago.
Hey Ben, thank you for following up. Your message showed up on email but not on the app

sorry about that, must be a tech glitch, however as long as you saw it eventually that is the main thing

Ben Jones and other Law Specialists are ready to help you