Employment contracts

So, If I want a bigger piece of the action (financially) with my
current employer I've got to go from 4 weeks to 12 weeks notice, this
is ok because it works both ways and gardening leave is always a
possibility but there's another part of the contract that I find
rather unappealing...

Can they really put a restriction clause in preventing me from working
for either an existing customer or one of our competitors for 6 months
from when I leave?

Obviously I'll sign then ignore the clauses if I ever feel the need to
move on but I'd love to know if they'd actually have a chance of
winning if they took me to court.

 

Not a hope of them taking it to court - restriction of your freedom.

Of course, selling or using any proprietary knowledge is a different matter.

 

Using the patented Mavis Beacon "Hunt&Peck" Technique,

The three month notice thing only works in your favour - you cannot be
held to a notice period longer than your salary period.

The restriction clause may well be enforceable if they want to. Six
months is not too long, and if they can show that your joining another
company has cost them business they have a chance of winning an
injunction.

I have just looked into this in some depth.

 

But it's very difficult to prove, and harder to attribute directly to
the employee in question (unless, as I said, it's something in relation
to secrets or proprietary stuff), so most companies wouldn't let it get
to a court room.

Doesn't mean they won't shout and scream though.

 

They can put what they like, but can't actually prevent you earning a
living in your chosen profession.

There's some legalese here.
http://www.roydens.co.uk/content09.htm

You could always force the issue up front and cross parts out and
initial it, and insist someone else from the company also initials it
as void before you sign.

 

This ties in with how I understand it. If they can prove I've stolen
some 'intellectual property' they'll have a good case but otherwise
they've not really got a chance.

Like that'd worry me.

The contract is seriously restrictive in a lot of ways but all they
want to do is throw money at me and stop me from leaving until 'the
big plan' has reached fruition. I've had this before and worked my way
around it by working abroad for a while but for obvious reasons I
really don't want to be forced into doing that again.

 

On Fri, 04 Dec 2009 17:50:10 +0000, ginge

snip>

That's quite interesting because it mentions the fact that your
employer might send details of the covenants to a new employer and
potentially make a claim of 'inducing a breach of contract'. I'm
supposed to notify any potential new employer of all the restrictive
clauses before accepting any offer of employment.

Not always a good idea. As the link points out, it's often better to
leave a draconian contract intact so you can prove how unfair it is.

 

I would say that's correct. IME.
As to the enforcibility of the re-employment restriction, and how it
would actually pan out if put to the test.

Are you getting something in return for this change of employment terms.
Apparently you are.
Is it a restricted market sector, are your skill specialist and in short
supply, do you have commerciably valuable knowledge. I think yes!

BUT

A Court might well find that 6 months is excessively onerous for your
particular trade. I don't think anyone would argue with 12 weeks.
Particularly as you also have the option of 12 weeks garden leave and
assuming you had taken it. A point it might be worth pointing out to
them, poorly prepared employment contracts are as much a liability for
employers as employees.

--
'Hog
'06 ST4-S
'96 Bastard12 '89 R100RS '81 XS650 '78 RD400
'81 R65 Outfit
CO2-A load of hot air

 

In short, yes. At least that's what my lawyers recently told me.

--
Catman MIB#14 SKoGA#6 TEAR#4 BOTAFOF#38 Apostle#21 COSOC#3
Tyger, Tyger Burning Bright (Remove rust to reply)
116 Giulietta 3.0l Sprint 1.7 GTV TS 156 V6 2.5 S2
Triumph Sprint ST 1050: It's blue, see.
www.cuore-sportivo.co.uk

 

The 6 months would commance after the 12 weeks garden leave though
because that's still classed as paid employment, effectively
preventing Andy from bodging bits of metal together for 9 whole
months.

 

I think they're more concerned about me telling someone else how to do
the bodging rather than me doing it myself.

They know plenty about this subject because the three guys who own the
company all worked for our biggest competitor before setting up on
their own and they've hammered their previous employer over the last
10 years.

 

Swot I meant. 12 weeks garden leave and 12 weeks restriction might be
found acceptable. 12 weeks then 6 months not.

Remember that this contract isn't just placing an onus on the employee.
It is possible, indeed perhaps more likely that they could come after
the competing company that employed you. There have been one or two
high profile cases of that sort IIRC.

--
'Hog
'06 ST4-S
'96 Bastard12 '89 R100RS '81 XS650 '78 RD400
'81 R65 Outfit
CO2-A load of hot air

 

My understanding is you can't have your cake and eat it. So, if they ask
you to leave and say you can't go and work for a competitor, they have
to pay you for that period, ie the gardening leave. If they ask you to
leave, pay you three months notice but say you can't work for a
competitor for six months, then I'm pretty sure that's classed as
preventing you from work in the uk, and not valid.

If you do get asked to go then make sure you get paid redundancy rather
than payment in lieu of notice.

 

The only cases that I've read of being successful along those lines are when
people have left, taken the contact list with them, and nicked all the
customers. What they eventually get done for is stealing the company's data,
not for breaching the covenant, which is more or less unenforcable.

 

The punishment for which is what?

I would be reasonable confident to say that won't fly either - again,
possible restriction of your freedom to earn a living.

I don't know who you work for these days but you should consider:
a) how big is their in house legal dept, and how good are they?
b) how much money do they have to throw at pointless lawsuits?
c) do they often get into lawsuits with ex-employees?
d) are they likely to be afraid of the negative publicity that such a
suit would create?

of course, if you're planning to sell any official secrets, for which
you signed to say you didn't know, then that's a whole different kettle
of goldfish.

 

Yes.

Same sort of thing when someone sells a business - a clause saying
you'll stay out of the game for a while is normal, otherwise you'll just
start up again next door and poach all your customers back.,

Google for Contracts in Restraint of Trade: generally, the purdah period
must be reasonable. Six months sounds OK to me, but it might be
construed as too long. I'd suggest that if you're on three months'
notice, then three months for this would be a fair deal.

For cases where you sell a business, I think two years is the going
rate.

 

Yep - it's quite common.

You mean what proportion of ex-employees breaking such clauses have
been taken to court and lost? No idea. Nor, I suspect, has anyone
else.

 

Talk to an employment lawyer and don't go by what you read on
t'Interweb.

I've had this discussion with employment lawyers at various points years
back and the consensus what back then that /if/ it prevented you from
earning a living, it wasn't enforceable. The problem was the bit about
proving that it prevented you from earning a living; if you can still
find gainful employment while under the above covenant, it was OK,
otherwise it probably wasn't but that would've been up to a court to
decide. Cue hassle and expense.

Due to the massively incestuous nature of the business area I work in, I
think they've pretty much abandoned the above clause as it would only
cause trouble when trying to nick your competitor's staff.

Beware that the above clause can bite you in the arse if you even try to
work for a competitor based in a country that does recognise this sort
of covenant - like the US, where it's a case of you sign it and it's
likely to be enforced; lose your house and livelyhood? Tough, should've
thought about that before signing something this restrictive.

 

(On train, so can't be arsed reading whole thread)

From my understandig, they can restrict you from working for *them* for
6 months after redundancy (otherwise it could be argued you were not
redundant (position))

To restrict your working for competitors , if yiu leave, then they need
to prove you had some industry secret that would be financially bad for
them. Sales popel can be restricted from contacting previous customers.

In your case, **** all to worry about.

 

But gardebing leave is *always* a possibility without a notice clause as
you are always on a permanet 90 day notice in any redundancy situation
(IMO) where consultation is called for
wish this fucking train would stop wobbling !