Non compete covenant

[Help753]

can I have some advice on the following please. I terminated my contract with a firm on 10/11/20, they had the following covenant in the contract, which tbh doesn't make much sense to me. Here it is
"You covenant with the Company that you will not during your employment and for the period of twelve months immediately following the termination of your employment under this agreement without the prior written consent of the Company in connection with the carrying on of any business in competition with the business of the Company on your own behalf or on behalf of any person, firm or company directly or indirectly seek to procure orders from or do business with any person, firm or company who has at any time during the six months immediately preceding such termination done business with or been a customer or client of the Company and with whom you have had dealings."
Please can you make sense of it for me.
I work in complex medical care and one of the firm's clients have left ( due to the fact that their shifts weren't being covered), and have asked me if they can employ me direct. Can they do this based on the covenant?
Please can you get back to me asap as to what I can do as the family desperately want me to start from mid April.
I assume that they will have to prove that they have lost business, which surely they haven't as they couldn't fill the contract. Also they have tried to stop the client from using me by telling lies about me ( deformation of character), which I assume I could follow up as well? Many thanks

[MIKE770]

the old standard inclusion - safeguarding their position/products, had been used for decades.

[Help753]

Ok what can I/ can't do about it?

[MIKE770]

Ula might be able to comment

[Help753]

Many thanks. I don't want a huge bill for doing the wrong thing.

[Celestine]

Hi I know Ula is very busy today so I'll do my best.
This non compete type clause is very common in many employment contracts and exists to stop just such a situation as yours I'm afraid. Specialist businesses dislike staff with knowledge of their practices moving to competitors or clients.
As the contract states you can ask for written permission, then I suggest you do just that. If they decline, you could try and ask why and challenge them, especially as its a lost client rather than a direct competitor. If you go ahead and take the job offer, there is a possibility that your old employer could sue you for breach of contract. It is hard to say what type of damages they could pursue or prove for that matter but it would be worth checking with your current employer in writing EXACTLY what they would do, so that you can weigh up the costs risk.
On the subject of defamation, be very cautious as this is not easy to pursue, although telling a prospective employer lies about you would certainly qualify. I'm afraid this does sound like quite a toxic situation so don't make any rapid decisions, Ula will be here later/tomorrow to advise also.

[Help753]

Many thanks for that. Surely a a low paid careworker 12 months is a bit steep? The firm is very nasty tbh, that's why I left and their clients are beginning to as well

[Celestine]

Ok, that helps a bit. Like I said before these clauses are standard in many employment contracts. No offence, but if your job was a highly specialist medical researcher or similar then i would be concerned that the company may well pursue you for the breach.
This doesn't mean your role would not attract problems but the likelihood of them launching a full scale legal battle diminishes significantly. However! I am a former litigator, NOT an employment specialist so please wait for Ula's advice

[Help753]

Thank you and no offense taken. I'll wait for Ula to comment but you have been helpful

[Help753]

Just to add, it was the family who approached me to work for them and not the other way round. I don't know if that makes any difference. They left the company due to the lack of continuity of care, compassion and communication.

[ULA]

Sorry not to have been around. Some of my points will just confirm what has already been said by Celestine

Restrictive covenant clauses as they are known, are common in many contracts and I have seen them for all levels of staff junior to senior executives in various forms. They are intended to safeguard the interests of the business for a period of time after someone leaves.

You are effectively going to a client, even though they are an ex client now, who was a client for the 6 months prior to you leaving, which given the strict interpretation of the clause is not allowed.

The clause does give you the option to speak to your employer and get written consent and given that the client has now ceased services from your employer they would be limited in proving financial loss, if any by you going to work for them. The financial loss has already happened because they have lost them as a client. Which is something that you could point out to them. In addition 12 months for this restriction to apply, given your role, which although is such an important one, is not a senior management/exectuive level which is where I would more commonly see such a period of time being covered by a restrictive covenant. I would therefore again argue that if this was viewed by a court they would consider it to be an unreasonable length of time.

The other thing I have noticed which is me being very pedantic but it may work in your favour is that, if what you have posted is the entire restrictive covenant, it specifically states "....seek to procure orders from or do business with any person, firm or company....." This makes no mention of you being employed by a person, firm or company that has done business with your current employer in the last 6 months. An employment restriction is often a separate part of the overall restricitve covenant clause. If your post #1 is all there is then I think you can argue it does not cover an employment situation.

For them to try and enforce this would potentially cost them money in terms of legal fees and would they want to do that given what they would need to prove and how difficult that could be given the loss of the contract already?

Hope this helps.

[Help753]

Thank you for that, it's really helpful and has made it clearer. That is the whole of the covenant that I posted.

[ULA]

Thanks for confirming that is all of the covenant you posted. Given that, then my employment argument is something that you can use if needed.

[Help753]

Many thanks for that. At the end of the day my priority ( and that of the parents), is the welfare of the child. If the company can't provide the care that is required and do it safely then it's the parents choice to go elsewhere. It's not even as if the firm trained me as I already had the training so they can't use that as an angle either. The company is awful to work for and the amount of parents that aren't happy is astounding but they don't know what their next move is as this company is supposed to be specific and specialised for complex medical children. I know when it comes to contracts that doesn't come in to it but it's hard to separate when you see the treatment
many thanks for your help

[Celestine]

Raising a concern with CQC: A quikc guide for health and care staff about whistleblowing

Link to Quality Care Commission whistleblowing guide - good luck x