Non Compete Clause

[Amethyst]

Re: Non Compete Clause

That is interesting reading. I agree that there should be a period of time where the employee should not have access to anything that may compromise the employers interests but I am of the opinion that it is the employer that is gaining an advantage (or not receiving a disadvantage) and therefore should pay for it in the guise of "Gardening Leave".

She paid £250 for an hours consultation and written confirmation of advice.

Thanks!

Reptile

Yip I agree that Gardening Leave is a good alternative - although of course restricts when a new job can begin, and disrupts progress, keeping up to date on industry matters and so on - she may well be offered GL instead of working her notice period ( 3 months?), in which case she could argue (at the very least) the non compete runs concurrently to the GL.

As Account manager I'm not sure I'd agree in the restraint of trade bit - it's a position that can be appropriate to different industries, it hugely depends exactly what the job was and what the industry is. The area England/Wales/Ireland etc could be deemed too wide - but again depends massively on the industry.

I reckon so long as she doesn't go to the new employer and start chasing after her old clients or ex-colleagues she should be fine.

Thanks for the idea of cost - it helps to have a figure in mind when looking into the various fixed fees.

[R0b]

Re: Non Compete Clause

Yep, just be aware that because one lawyer says its unenforceable does not mean another lawyer will agree.

This article from a top law firm gives a decent guide if you wish to get some further information www.linklaters.com/pdfs/mkt/london/GC2081_Covenant_INT_Final.pdf

So be prepared if your wife decides to accept a job with a competitor

[hellengeek]

Re: Non Compete Clause

The only other option would be for her to get permission from someone with authority e.g. the account director agreeing not to exercise their right to bring a claim for breach of non compete clause.

[Openlaw15]

Re: Non Compete Clause

Hi R0b,

The main point that she said was wholly unreasonable was the "restraint of trade".

Thank you

Reptile

Yep. just as I stated above at post number 8, the clause was effectively a 'restraint of her trade.' A good employment lawyer knows their stuff but generic lawyers ie not employment law experienced simply would not. These type of non complete clauses are not infrequent as employers do try it on to 'control' the employee. So what it is the law on balance? Well, it is simply an unfair deprivation of her right to earn a living, ie against the public interest even if it, the non compete clause, were normally enforceable: Nordenfelt v Maxim Nordenfelt Guns & Ammunition Co Ltd [1894] A.C. 535; Esso Petroleum Co Ltd v Harper's Garage (Stourport) Ltd [1968] A.C. 269. For instance even if the employer were to have a 'legitimate interest' ie a genuine right to use a non compete clause, it still must not be unreasonably wide: TSC Europe (UK) Ltd v Massey [1999] I.R.L.R. 22. Said legitimate interest simply must not be more than is reasonably necessary notwithstanding it cannot have the effect of a penalty: Office Angels v Rainer-Thomas [1991] I.R.L.R. 214.

Moreover, in addition to a genuine interest the clause must be specific: Norbrook Laboratories (GB) Ltd v Adair [2008] EWHC 978, ie on your facts there is no specific job type but there is a 12 month period: Norbrook. However this could also be construed as a penalty as it is effectively a deprivation of employment for a year without stating what type of employment the non compete clause covers, other than the employer having a legitimate interest: op cit Office Angels [1991], et al.