Non-compete - can it be enforced?

[comparison]

Hi, looking for some advice. I'm based in England. I'm considering taking a job with another company. However, I believe I may be prevented from moving due to a non-compete clause in my contract. I believe that this is the same for everyone in this company (10,000s employees, HQ in USA). To remain anonymous I'll switch some of the details.

I work within financial services in a technology job. My work relates to a specific product type. I was originally hired within the past 2 years as a software architect (Contract says 'Software Architect). The job turned out to be quite different to how it was described (my job title and work has informally changed several times) and I have decided I want to move on.

I've interviewed with several other companies within the same industry and received 2 offers of employment. The new roles would both be product strategy jobs, NOT software architecture.

In my new role I will work on financial trading technology but in a different capacity that requires no hands on technical work or design. That role is as a team manager / strategy setting role instead - so more management related. I would not be in a sales role but an internal tech team role. New job title would be 'Product Manager'

These new companies are much smaller and they compete in the same field but for a different size of customer. My current company targets massive businesses, new companies target medium/smaller businesses. There is very little overlap between these companies in terms of who their clients are, but the products are similar.

The clause from my contract:

Restrictions - Non-competition

You shall not during the 6 month period after the date of the termination of your employment, for any reason whatsoever whether lawful or wrongful, be employed, engaged, concerned, directly or indirectly, in performing or providing services substantially similar to those you performed on behalf of or provided to the Company, in any trade or business or occupation whatsoever with respect to the geographic region (EMEA) that you performed services for the Company during the 12 month period immediately preceding the date of termination of your employment which would or might reasonably be considered to compete with any of the restricted businesses.

Restricted businesses is defined as a list of the type of company like 'licensing trading software'.

Would appreciate any advice on if this can be upheld, if I can start earlier than 6 months (the idea is to start after my 2 months notice. I've never been held but a non-compete and was advised when I joined verbally that they are never enforced.

I think there are a few points that make this potentially unenforceable:

1) I have a 2 months notice period which indicates that my leaving wouldn't have that much of an impact, therefore 6 months restriction is unreasonable
2) The new role is 'substantially' different to my current job (current is a tech design role, new is a product strategy role)
3) The geographic region covers EMEA (Europe, Middle East & Africa) which is a very big area
4) I am not in a sales capacity, I do have exposure to customers but only for design queries, I am not billable so therefore wouldn't have an impact on the businesses income.

Honestly, I don't think they'll bother coming after me, or even know that I've gone to a competitor but I would like to get advice before I make a poor decision.

Thank you.

[theberenger]

I'm framing my response by saying I'm just a bloke on the internet, I'm not an employment law expert. That said, I do have a couple of thoughts.

I know you're keen to keep your head down and not draw attention to yourself in terms of your current employer, but one approach you might consider is to just go ahead and ask your HR department whether they would consider such a move to be a breach of restrictive covenant. Ask by letter or email, that will enable you to set out your own thoughts on why such a move is not covered by the restrictive covenant. Personally, I would merely mention the points you've made about the new job and its description, I would not mention anything about why you consider the restrictive covenant unenforceable.

If you're lucky, you get a response in writing (or email, which you can print and keep) which says you're in the clear. Otherwise, I'm not sure I see how you're any worse off. Your current employer is bound to find out where you've gone, after all they will come looking for a reference surely, at which point the game is up whether you tell them or not. If you didn't work in financial services you might have got away with slipping out the back door and into your new employer, but I doubt in your line of work you'd be so lucky.

[ULA]

There are a few things to "unpack" from this clause which need to be dealt with individually and in doing so I will try to cover off your questions at the same time.

1. Regarding your notice period, this is probably in relation to your role in the company, seniority and likely length of time to recruit if you hand in your notice and would not have have any impact on the enforceability of the restrictive covenant. You may also have a pay in lieu of notice clause (PILON) and/or a garden leave clause that the company could revert to if they were concerned about the competive nature and job role that you were moving to.
2. If challenged by your current employer you would need to be able to set out the substantial differences in the role that you are going to from the one you currently do which you seem to suggest you would be able to and an important point in your post that may help, is the differing size customer base of both your current and future employer.
3. This is the one where you may have a strong case with your employer as potentially this geopraphical location could be consider to be too wide to be enforceable.
4. Not sure your billablility is the issue here, it will be about your access to customer information which may be useful to potential competitiors of your current employer. Again, this could hopefully be argued that although you are moving within the financial services sector the target market within that sector are not the same and any information you have on current customers would not be of interest to the new company due to size of those customers.

You can never know how the company will react in relation to this clasue when you hand in your notice, but hopefully some of the above will help you should they decide to create an issue.

If this happens then just come back to this thread for further advice.