non compete in contract/ restrictive covenant

tombruton87

In my contract I have the following lines

Restrictive Covenant
On leaving the company, I agree not to undertake provision of the same services
/ products as supplied by the Company either from my own business, or the
employment of a competitor to the Company, for a period of two years, unless this
is specifically agreed by the Company. The Company will only enforce that which is
reasonable to protect it's business.

How enforceable is this especially the 2 year period? I personally dont think this is fair as I am building up all my skill sets in the education software industry, so my skills lie in that area. Making it hard for me to find a job if i leave

ValHaller

No flexibility over the period. Your only hope is to find another employer who do educational software for different topics to your current employer - or to do general software - or perhaps educational assessment software or presentation type software or something removed in a similar way

dacouch

One for Lazydaisy me thinks

Takeaway_Addict

ValHaller wrote: »

No flexibility over the period. Your only hope is to find another employer who do educational software for different topics to your current employer - or to do general software - or perhaps educational assessment software or presentation type software or something removed in a similar way

No one can really say either way if this is flexible or not. My personal feeling is that its not (2 years is a ridiculous amount of time, 6 months would be more appropriate IMO) but the OP needs to go see a professional as it could get messy

ohreally

The Court of Appeal ruled a clause preventing an employee from working in any capacity in any business within the UK for anyone who was in competition went beyond what it was legitimate to protect and was unenforceable (Wincanton v Cranny [2000] IRLR 716).

+

Restrictive covenants will only be enforceable for a reasonable period of time following the termination of employment. Restrictions lasting longer than six months are generally considered to be unreasonable. However, restrictive covenants lasting up to 12 months may be justifiable where the former employer's business is part of a niche industry or if the former employee is very senior or has specific technical expertise. A restriction, which may be reasonable for a senior employee, may not necessarily be reasonable for a more junior member of staff - so one size does not fit all.

Mands

tombruton87 wrote: »

In my contract I have the following lines

Restrictive Covenant
On leaving the company, I agree not to undertake provision of the same services
/ products as supplied by the Company either from my own business, or the
employment of a competitor to the Company, for a period of two years, unless this
is specifically agreed by the Company. The Company will only enforce that which is
reasonable to protect it's business.

How enforceable is this especially the 2 year period? I personally dont think this is fair as I am building up all my skill sets in the education software industry, so my skills lie in that area. Making it hard for me to find a job if i leave

I suspect the lack of geographic limitation weakens the whole clause. "2 years and not within 50 miles of our offices" is one thing; as it's written you are prohibited from moving to Fiji and setting up shop there. That's not reasonable.

Incidentally, is the wording exactly as above with the "it's" rather than "its"?

Mands

tombruton87

its exactly as above copy and pasted

pmlindyloo

tombruton87 wrote: »

In my contract I have the following lines

Restrictive Covenant
On leaving the company, I agree not to undertake provision of the same services
/ products as supplied by the Company either from my own business, or the
employment of a competitor to the Company, for a period of two years, unless this
is specifically agreed by the Company. The Company will only enforce that which is
reasonable to protect it's business.

How enforceable is this especially the 2 year period? I personally dont think this is fair as I am building up all my skill sets in the education software industry, so my skills lie in that area. Making it hard for me to find a job if i leave

To be honest, you will never know whether this is enforceable unless they try to enforce it!

I personally think this is unenforceable due to the length of time and the wording.

I also think that this is one of those fairly standard clauses and the 'get out line' (if you forgive the expression) is in my bold.

They would have great difficulty, I suspect, in proving that any action was reasonable to protect its business.

The fact that whoever drew up this contract does not understand basic grammar (should be 'its') tells its own story.

My OH had a similar clause in his contract and his solicitors 'take' on it was: 'How will they monitor this? How will they prove that it is detrimental to their business?'

Mands

tombruton87 wrote: »

its exactly as above copy and pasted

Then I'd say that was good news: either it was written by a very sloppy lawyer or it was written in-house without a lawyer ever looking at it.

Mands