Non-Compete help

[Random123]

Hi everyone

i currently work for a tech company who have a range of products (web, email marketing, web persinalisation etc) and have informally been offered a role with a larger competitor who provide the same products & others. Both are global and my current role is all of EMEA, new role would be UK only. I'm also in front line new business sales, have no daily interactions with customers.

After getting the informal offer, I've since checked my current contract and annoyingly discovered a section on restrictive covenants which I wasn't aware of (stupid mistake I know)

The clause that worries me effectively states i cant join a company in competition or intends to be in competition for 6 months post termination - cannot see any mention of geography or what constitutes a competitor in there

It also has clauses I've seen in the past around non solicitation of clients and employees which i intend to completely follow.

My other half thinks I should be fine to try and negotiate with the current employer, agree to the non solicitation and ask to be let off on joining a competitor. I'm leaning towards having a lawyer review my current contract and advise, but I'm aware advise will probably be to speak to current employer

I'm also planning to make the new employer aware and share the restrictive covenants with them, hopefully it won't ruin the job offer

Has anyone seen non competes be enforced in this sort of scenario? Particularly for someone who isn't working directly with clients and isn't in management or even one of the higher paid sales people

Thanks in advance for any advice!

[Random123]

Thought it'd be useful to add the specific wordings so have added here :

In order to protect the Confidential Material and business connections of the Protected Companies to which you have access in connection with your employment, you covenant with the Company
(for itself and as trustee and agent for each other Protected Company) that you will not, in any
Capacity:
13.2.1 for six (6) months after Termination Date be engaged, concerned or involved with
any business which is (or intends to be) in competition with any Restricted Business
13.2.2 for six (6) months after the Termination Date, solicit or endeavour to entice away
from a Protected Company the business of a Restricted Customer with a view to
providing goods or services to that Restricted Customer in competition with any
Restricted Business;
13.2.3 for six (6) months following the Termination Date be involved with the provision of
goods and services to, or otherwise have any business dealings with, any Restricted
Customer in the course of any business which is in competition with any Restricted
Buisness; for six (6) months after the Termination Date, offer to employ or engage
or otherwise endeavour to entice away from a Protected Company any Key
Employee whether or not such person would breach their contract of employment
or engagement;
13.2.4 for six (6) months following the Termination Date employ or engage or facilitate the
employment or engagement of any Key Employee (whether or not such person
would breach their contract of employment or engagement) in any business which
is in competition with any Restricted Business; or
13.2.5 at any time after the Termination Date, represent yourself as connected with a
Protected Company in any Capacity.
13.3 None of the restrictions in clause 13 will prevent you from:
13.3.1 holding an investment by way of shares or other securities of not more than 5% of
the total issued share capital of any company, whether or not it is listed or dealt in
on a recognised stock exchange;
13.3.2 being engaged or concerned in any business concern insofar as your duties or work
relates solely to geographical areas where the business concern is not in
competition with any Restricted Business; or
13.3.3 being engaged or concerned in any business concern, provided that your duties or
work relate solely to services or activities of a kind with which you were not
concerned to a material extent in the twelve (12) months before the Termination
Date.
13.4 The restrictions imposed on you by this clause 13 apply to you acting:
13.4.1 directly or indirectly; and
13.4.2 on your own behalf or on behalf of, or in conjunction with, any firm, company or
person.
13.5 The periods for which the restrictions in clause 13 apply will be reduced by any period the Company
imposes a requirement under clause 12.2, immediately before the Termination Date.
13.6 If you receive an offer to be involved in a business concern in any Capacity during your employment,
or before the expiry of the last of the covenants in this clause 13, you must give the person making
the offer a copy of this clause 13 and must inform the Company of the identity of that person as
soon as possible after receiving the offer.
13.7 You agree that the restrictions set forth in this clause 13 are fair and reasonable and are reasonably
required for the protection of the interests of the Company. However, should a court nonetheless
determine at a later date that such restrictions are unreasonable in light of the circumstances as
they then exist, then you agree that clause 13 shall be construed in such a manner as to impose
on you, such restrictions as may then be reasonable and sufficient to assure the Company of the
intended benefits of clause 13. Each of the restrictions in this clause 13 is intended to be separate
and severable. If any of the restrictions is held to be void but would be valid if part of their wording
were deleted, such restriction will apply with such deletion as may be necessary to make it valid or
effective

[atticus]

Yes, those clauses can be enforced. They are there to protect an employer from a former employee who may attempt to take part of their business.

The wording of the clause suggests that your employer is part of a larger group. It may have the financial resources to throw several grand at legal action should it wish.

[Random123]

Thanks atticus

Theyre owned by private equity, but operate independently, roughly 200-400m revenue

The new role is roughly 40% uplift in salary and a step up career wise so keen to find a resolution if possible

do you think negotiating with the current employer is the best approach?

[atticus]

It is a better approach than having to fight a court case.

[Random123]

Thanks atticus

I'm expecting the full offer tomorrow so will be aiming to speak with my manager (head of sales europe).

I'll do this before officially resigning in the hopes I can buy some time and get in touch with a lawyer if the answer is no from them

I'll update once I've heard back

Thanks again

[atticus]

I hope it goes well for you.

Next time, read and understand the contract before you sign it, not several years after!