Solicitor recomendation - 12 month non-compete clause in contract

[Dowie]

Hi,
I was wondering if anyone could help either with general advice or with a recommendation for an employment solicitor with experience of defending against non competes/restrictive covenants in employment contracts. Ideally a good regional one rather than an expensive London one.

Basically I work for a software firm though I'm currently interviewing for a role at a client and have my third round interview this week. The issue I have is that I am subject to a 12 month, UK & EU wide non compete, non disclosure agreement and I'd want to run this past someone to check that I'm not breaching anything in the agreement that could actually be enforced. I'm not in a senior or management role and I'm aware that restraint of trade isn't allowed and that these agreements shouldn't be unreasonably long. As far as I can gather my current employer would have to demonstrate they were protecting a legitimate business interest. I'm not currently client facing... I could understand that such an agreement could be enforced if I were perhaps a billable resource in say a consultancy role and then jumped ship but my current role involves minimal client contact and the new role is a rather different one.

[Kati]

Re: Solicitor recomendation - 12 month non-compete clause in contract

National Pro Bono Centre might be useful: http://www.nationalprobonocentre.org.uk

[Dowie]

Re: Solicitor recomendation - 12 month non-compete clause in contract

Thanks for the reply That might indeed be useful in future - especially if my current employer decided to take me to the high court... I think I'd be trying such a service or attempting to defend myself should that happen. I'm not sure I'd warrant such assistance right now though as I could afford to pay for at least a consultation or for someone to look over my contract, write a letter etc.. if necessary.

[Kati]

Re: Solicitor recomendation - 12 month non-compete clause in contract

I'll give people a shout for you

Could you maybe post up a copy of your contract (personal info omitted) in the meantime??

[Dowie]

Re: Solicitor recomendation - 12 month non-compete clause in contract

Thanks,the whole contract itself is a few pages and is in pdf form... I've copied the relevant part regarding obligations after leaving:

[des8]

Re: Solicitor recomendation - 12 month non-compete clause in contract

Hi there,
Could you let us know how long the restricted period is, and the limits of the restricted area?
In the meantime you might find some useful info in this link: http://www.legalbeagles.info/forums/...ht=#post460948

[Dowie]

Re: Solicitor recomendation - 12 month non-compete clause in contract

Hi its 12 months and it covers the UK and Europe. Thanks for the link

[Johnboy007]

Re: Solicitor recomendation - 12 month non-compete clause in contract

Well looking at these restrictions, I think you should try to get your thinking cap on with regards to 5.3 in the agreement.
Now if you are a lowly employee (and I use that word without disrespect) perhaps the whole UK and Europe would be classed as going beyond reason, and therefore unreasonable for a start off.
Access to company secrets?
If you only had access to information that would not be detrimental to your employer in the event you move to a competitor, then this restriction could also be classed as unreasonable.

Clause 5.3 makes it clear that if any part of the agreement is unreasonable, then deletions, restrictions or limitations to these points are allowed.

I think this is your best move, to show the company that you are not a danger to their business and that by removing certain wording such as UK and Europe, material interest (which restricts your chances of employment, which is unreasonable), and should be removed in your contract. Clause 5.3 allows this if you read it.
That you are not in senior or management role, greatly reduces the chance that you could unduly make any difference to your company's business, other than your labour.
So to tie you to 12 months is unreasonable.

You really need to sit down and go over your existing job, and see if there are any points that would prejudice your employers business.
If nothing significant, then you could negotiate with your employer on points that are unreasonable.
If your employer will not budge, then raise a formal grievance with your employer.
Keep us informed on what you decide to do.
But 5.3 is the easiest and cheapest option for you to get your head around. It also neutralises clause 5.2 to a degree, as this clause could also be deemed unreasonable. Which in turn will effect clause 5.1
Get thinking and good luck

[Dowie]

Re: Solicitor recomendation - 12 month non-compete clause in contract

Thanks for your reply - I am just a lowly employee and I'm not privy to anything that would be confidential information as far as I'm aware nor do I intend to move to a competitor. Unfortunately I don't think a grievance would be much use in this case - the company is apparently not too friendly when people make the sort of move I'm considering making. My potential new role at the client wouldn't involve developing anything nor would it involve competing with any product/service offered by the company - it would simply involve supporting a piece of software supplied by my current company. I'm not currently employed in a client facing or support role. I am hoping that such a move wouldn't breach anything enforceable - the issue from the companies perspective is simply that the clients tend to pay better salaries, they seem to use the agreement as a weapon to stop staff from leaving or to make it very difficult for them should they try.

[des8]

Re: Solicitor recomendation - 12 month non-compete clause in contract

- the issue from the companies perspective is simply that the clients tend to pay better salaries, they seem to use the agreement as a weapon to stop staff from leaving or to make it very difficult for them should they try.

Not unusual.
Do you know if they have ever tried to enforce this clause on someone of your grade through the courts?
I suspect not, as it is difficult and expensive to make the case.
It is most probably a threat, and I would consider calling their bluff.

[Dowie]

Re: Solicitor recomendation - 12 month non-compete clause in contract

I'm not aware... only rumours unfortunately. I think I am likely to need a solicitor at some point though as they're unlikely to simply allow me to go to this new role. The parent company is essentially a small company that grew rather rapidly and ended up acquiring a bunch of other small to mid size firms along the way - its still very fragmented and we don't have much communication with the various other people in these different companies so I'm not sure if the agreement has ever been enforced against anyone.

[righty]

Re: Solicitor recomendation - 12 month non-compete clause in contract

These T's & C's are a massive 'Restriction of Trade' and I suspect many of them are unenforceable, particularly the area of restriction UK AND Europe. They can't stop you plying your trade

[Johnboy007]

Re: Solicitor recomendation - 12 month non-compete clause in contract

I think you have every chance of getting your new job.
These restrictive contracts do have conditions attached before they are enforceable.
on is, that they should not be unduly unreasonable or unfair.
From your job description, I would do as Des8 advised.
Call their bluff and just go get you new job.
The company would have a hell of a job trying to prove that you were a threat to their business.
It would cost them a small fortune, on a case they probably wouldn't win anyway.
Just quote clause 5.3 and say bye bye.............