Restrictive Covenants

[monkeymagic]

Hi all, I need advice on the covenants. I see they are for 12 months is this actually enforceable a full 12 months and are they referring to customers and suppliers as well as colleagues? In short am I restricted to contacting current customer base only after 12 months?

Having obtained and being likely in the course of your employment with the Company to obtain knowledge of the trade connection and secrets and other confidential information of the company, the Employee agrees to be bound by the following restrictions:

1. You shall not at any time either during your service with the Company or for a period of 1 year thereafter solicit, interfere with or endeavour to entice away from the Company or any other member of the Group any person, firm or Company who at any time within a period of one year prior to the termination of your employment was a customer having contact with you or was in the habit of dealing with the Company or any other member of the Group in the course of the business with which you shall have been concerned under the terms of this Agreement, and

1. you shall not at any time either during your service with the Company or for a period of 1 year thereafter solicit, interfere with or endeavour to entice away from the company any other member of the Group any person who at any time within a period of one year prior to the termination of your employment was an employee of the company or any other member of the Group in the course of the business with which you shall have been concerned under the terms of this Agreement.

[atticus]

These could well be enforceable. Restrictive covenants have to be reasonable in all the circumstances. You have not told us whether your job is peeling spuds in a fish and chip shop, sales director for a large company, or something in between.

Court action about these things can be cripplingly expensive for an individual. Do your best to conduct yourself in such a way as to avoid your former employer wanting to take action against you.

[monkeymagic]

Sorry I forgot to add in the first paragraph I am restricted to three or twelve months?

You agree that, for a period of three months (less any period spent on Garden Leave) after termination of your employment howsoever arising, you will not, without the written consent of the Company, directly or indirectly either on your own behalf or on behalf of any other person, firm or company in respect of the provision of Services and in competition with the Company or any of its Associated Companies:

[dslippy]

You need to answer Atti's question. Typically, such covenants extend for rather more than a year.

[monkeymagic]

Thanks DSLIPPY & ATTICUS for responding.

A managerial position covering all operational aspects and a commercial team within logistics. It seems that the covenants are standard to all and not bespoke to a particular role

Also what are your thoughts on the three / twelve month elements.

[ULA]

If you were in a managerial position, then restrictive covenants such as these are really not unusual and are meant to safeguard the business interests of your employer.

Sorry a bit confused, the italics para in your post #3 does not logically follow on from the top of the italics section in your first post so think it may be best if you set how the complete clause in its entirety.

[monkeymagic]

Hi ULA, here it is just as it is written :-

You agree that, for a period of three months (less any period spent on Garden Leave) after termination of your employment howsoever arising, you will not, without the written consent of the Company, directly or indirectly either on your own behalf or on behalf of any other person, firm or company in respect of the provision of Services and in competition with the Company or any of its Associated Companies: (a) canvass, solicit or approach or cause to be canvassed, solicited or approached for orders any person, firm or company who, at the date of the termination of your employment or within 12 months prior to such date, is or was a client or customer of the Company or any Associated Company or was in the habit of dealing under contract with the Company or any Associated Company and with whom you were materially concerned or had personal contact at any time during that period (a “Restricted Person”). (b) deal, enter into any contract, or transact any business with any Restricted Person; (c) solicit or entice or endeavour to solicit or entice away from the Company or from any Associated Company any employee who immediately prior to your termination, was engaged in a role at technical, specialist, supervisor or management level in the Company or Associated Company, and with whom you had any direct or indirect dealings (including via your reporting line) at any time during the 12 months prior to the termination of your employment. 12.2 Each of the above obligations is an entire, separate and independent restriction on you and if any part is found to be invalid or unenforceable the remainder will be valid and enforceable.

[ULA]

Sorry still confused the clause you posted up at #7 seems to be worded differently from that at #1.

Are they two separate clauses in your contract of employment and if so how so they appear?

[dslippy]

I suspect that the clause, given the nature of the employment, is valid. I have seen much worse.

Whether it is or not depends upon a detailed investigation of the nature of the business(es) involved. That can be expensive.

[atticus]

I agree

[monkeymagic]

Sorry still confused the clause you posted up at #7 seems to be worded differently from that at #1.

Are they two separate clauses in your contract of employment and if so how so they appear?

Hi ULA , no that is exactly how they are written. Pasted straight in.

[ULA]

Having reviewed clauses side by side other than one being 3 months post termination and the other being 12 months termination, the former refers to Company or Associated Companies plus a Restricted Person and the latter refers to Company or any other member of the Group.

What you will potentially need to do is go back to the definitions section and find out the definition of "Associated Companies" and "Group Members".

It's still confusing but that may shed some light on this.

[atticus]

Are the clauses in post 1 and post 7 in the same document?