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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 72635
Experience:  Qualified Solicitor
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Would you be able to assist me with interpreting a

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Hi, would you be able to assist me with interpreting a non-compete clause I have in my employment contract and see if this would apply for a new job offer that I have received?
JA: Have you discussed the non-compete agreement with a manager or HR? Or with a lawyer?
Customer: no, not yet as my current company does not know I am looking for new oportunities
JA: What is your employment status? Are you an employee, freelancer, consultant or contractor? Do you belong to a union?
Customer: I am a full time employee, not in a union
JA: Anything else you want the Lawyer to know before I connect you?
Customer: I don't know for sure to be honest, is there anything else that would need mentioning besides the exact details?

Hello, I’m Ben. It’s my pleasure to assist you today. I may also ask for some preliminary information to help me determine the legal position.

Please provide some more details of your circumstances. Please note this is not always an instant service and I may not be able to reply immediately. However, rest assured that I am dealing with your question and will get back to you today. Thanks

Customer: replied 13 days ago.
Hi Ben, thank you very much for your time today. I will try to explain my circumstances briefly and please let me know if you would require any additional details.
Customer: replied 13 days ago.
I am currently employed as a consultant for a consultancy that implements a specific financial software for companies. I have received an offer from a different consultancy to join them to implement similar financial softwares, but not the same exact one as I am currently doing in my role.
Customer: replied 13 days ago.
I have a non-compete clause in my contract which I am not sure whether it would be applicable in this circumstance or not. I will add the clause below.
Customer: replied 13 days ago.
34;You will not, for a period of 6 months after the termination of your employment, be engaged in or concerned in any capacity in any busness concern in the United Kingdom which is in competition with the Restricted Business. Thihs clause shall not restrain you from being engaged or concerned in any bsiness so far as your duties or work shall solely relate to services or activites of a kind with which you were not concerned to a material extent during the period of 12 months ending on the date of the termination of your employment."
Customer: replied 13 days ago.
where "Restricted Business" is defined as "Restricted Business means the business of the Company at the time of the termination of your employment with which you were involved to a material extent during the period of 6 months ending on the date of the termination of your employment."

Thank you. How would your current employer be affected if you were to go and work with the new one and do that work?

Customer: replied 13 days ago.
They have a team of consultants who would be able to do the same activities I have been doing, I would say that the only incovenience would be that they would have one person less that they can use on projects.
Customer: replied 13 days ago.
in terms of the other company, I would be joining a team of over 100 consultants if that is relevant

Many thanks for your patience, I am pleased to be able to continue assisting with your query now. It is common for employment contracts to contain post-termination restrictive covenants, which restrict the employee’s activities once their employment terminates. An employer would understandably want to protect their business from a departing employee's knowledge of confidential information, business connections, influence over clients, suppliers, staff, etc. However, a covenant that restricts an employee's post-termination activities will be automatically unenforceable by 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.

The first thing to consider is what legitimate business interests (LBIs) can the employer try and protect? The most common ones are:

- Goodwill (trade connections with customers and suppliers)

- Trade secrets and confidential information

- Stability of the workforce (preventing poaching of employees)

If they are trying to protect an LBI, any relevant restriction must be drafted no wider than is reasonably necessary to protect that interest. Generally, the courts would try and balance the interests of the employer's business and the employee’s right to freedom of movement and earning a living.

Non-competition covenants prevent an employee from working with a competing business or setting up to work in competition with their ex-employer. A covenant simply wishing to prevent competition will not be enforceable, especially as competition is generally seen as healthy for consumer rights. However, a non-competition covenant trying to protect an LBI can be. Such covenants will generally only be 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 duration of the restriction can be important, with 6 months usually seen as the maximum in standard situations and anything longer can be seen as unreasonable.

Restrictive covenants are often used as a scare tactic by employers, hoping that an ex-employee will simply not attempt to breach them in order to avoid potential legal trouble. However, if the restrictions are allegedly breached, the employer has the right to take the matter further. The following legal remedies are available to them:

- Injunction – an order of the court to stop the ex-employee from doing certain things that would make them in breach of the restrictive covenants, such as not to contact certain clients, not to use certain confidential information or not to work for a specific competitor. It can also instruct them to deliver up certain confidential information, which they may have tried to use

- Damages - compensation for loses which have directly resulted from the breach of the covenants, although it would only be possible if such losses are identifiable. This will normally include loss of profits on contracts or opportunities, which have diverted by the employee. It is potentially also possible to make a claim against the ex-employee’s new employer, if they had knowingly or intentionally induced the employee to breach their covenants

In summary, there are various factors which deal with the reasonableness and enforceability of 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. In the end, only a court can decide if a covenant is legally enforceable, so unless the employer goes to court and succeeds, they will only be able to rely on the employee’s own compliance with the restrictions.

Hopefully, I have answered your query in a way that is simple and easy to understand. If anything remains unclear, I will be more than happy to clarify it for you. In the meantime, thank you once again for using our services.

Customer: replied 13 days ago.
Hi Ben, thank you very much for your detailed reply. Based on what you are saying I believe that in these circumstances, I shouldn't be in breach of contract if I take the new position since I wouldn't be contacting any of my current employer's clients or use any confidential information or trade secrets. Thank you very much for your assistance today.

You are most welcome. If you have any further questions about this then please do not hesitate to get back to me and I will be glad to help. All the best

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