Post employment covenant

sangie595

Whatever! This is angels and pinheads territory, and the reason there are lawyers is because they will find twelve answers to one question. The point is whether the employer is going to try to enforce it or not. Because if they are going to try, that's a potentially risky game. And one that doesn't have to be played in court.

What do you think the potential new employer will do if threatened with a case of enticing the OP to breach of contract? They can get another production line engineer easily. Obviously, because if they were so desperate they wouldn't be playing games about employment status and recruitment. So they aren't going to take the risk of ending up in a court of law because they recruited someone they can replace in an instant. They'll deny (probably truthfully) all knowledge of the term and then find someone else to do the work.

The OP already has two totally different pieces of advice from two professionals about the clause, so clearly there are differences in the predicted outcome if it gets to court. So there is risk. But there is further risk which depends on what the employer might otherwise do.

So the point here really, is whether the employer is likely to care enough to do anything. I doubt that the OP really wants to end up in court, whichever way a court decided. And somehow, I think their "new employer" may not want to be associated with such a court action.

Is the employer likely to care? We don't know. But surely the reality is that letting it get to a court case is not in the OP's interests, and this is not a case of the clause being clearly unenforceable - as many such clauses are.

dacons

Ok so correct me if im wrong but the restricted customer is more a title then a statement and the clauses apply in regards to costing my current firm money so there not actually saying Icant have dealings with them there just saying I cant do any works that my current employer could have done so to use the apple analogy my company pick the apples the client then makes cider so as long as I dont go to the client to pick apples for them I should me ok.

Or am I wrong

sangie595

dacons wrote: »

Ok so correct me if im wrong but the restricted customer is more a title then a statement and the clauses apply in regards to costing my current firm money so there not actually saying Icant have dealings with them there just saying I cant do any works that my current employer could have done so to use the apple analogy my company pick the apples the client then makes cider so as long as I dont go to the client to pick apples for them I should me ok.

Or am I wrong

And nobody but a court can tell you that. But that isn't really the point. The point is, is the employer going to kick off? If they choose to make something of it, what they make of it might or might not cost you your employment. Quite a lot of employers have restrictive covenants in their contracts, but don't really bother to apply them. Others will only make a fuss if you are going to a nearby or direct competitor. So if the contract is enforceable in theory, that only matters if the employer intends to do something about it.

In the end, you shouldn't be depending on free advice on a website. This is a specialized area of law and you need to seek the opinion of an employment law solicitor with relevant experienc. Yes it would cost you some money. And it would still be an opinion, not a guarantee. But it would be foolish to pick out the advice you like best from a bunch of strangers, and then gamble on it being right.

dacons

Yeah I fully agree I put it here for opinions and if someone had been in a similar situation ,il be giving my contract to a family friend to go over he is some bigwig solicitor/lawyer/barrister at a big law firm in london so if he doesnt know noone will.
But ive also decided to approach my manager about it very carefully with the intention of pointing out the positives which there will be and hope he doesnt make a fuss.

steampowered

dacons wrote: »

Ok so correct me if im wrong but the restricted customer is more a title then a statement and the clauses apply in regards to costing my current firm money so there not actually saying Icant have dealings with them there just saying I cant do any works that my current employer could have done so to use the apple analogy my company pick the apples the client then makes cider so as long as I dont go to the client to pick apples for them I should me ok.

Or am I wrong

Yes, that's correct. The "Restricted Customer" statement is just a definition of what is meant when the contract refers to a "Restricted Customer" further down.

What you have said is basically correct. The clause is extremely clear that it only restricts you from working "in the course of any business concern which is in competition with any Restricted Business". It is also gives you a specific definition of the word "Restricted Business" as meaning the part of the business you were working in during the past 12 months. That isn't a matter of legal opinion, that is simply what the contract says!!!! So if your new employer doesn't compete in the area of property maintenance, it seems to be that in legal terms you are very safe.

I note you have received conflicting advice from two professionals. I don't know what the circumstances of this are. I would place more weight on the professional who has actually properly read the contract. For example if the Union rep was not a lawyer and hasn't actually read the clause properly, I would not put much weight on his opinion.

This isn't really an issue about the opinion of one lawyer vs another lawyer. The law on contract interpretation is simply that you read the contract to see what it says. In cases of ambiguity, the court will take the meaning which it thinks would be understood by a reasonable person.

The effect of the contract would only become a matter of legal opinion if the clause is ambiguous. Personally I do not think the contract is ambiguous. Yes the clause is long and complicated, but when you sit down and read it, it is very clear.

There's always a risk the old employer will kick off and try to cause trouble regardless of what the contract says. But if you haven't breached the contract, the legal risk to you is obviously much smaller than if you were breaching the contract.

Undervalued

dacons wrote: »

Yeah I fully agree I put it here for opinions and if someone had been in a similar situation ,il be giving my contract to a family friend to go over he is some bigwig solicitor/lawyer/barrister at a big law firm in london so if he doesnt know noone will.
But ive also decided to approach my manager about it very carefully with the intention of pointing out the positives which there will be and hope he doesnt make a fuss.

He can give you a (hopefully) expert OPINION as to what he THINKS a court may decide. Remember though he will have only heard one side of the argument and he won't be paying the bill if it all goes pear shaped.

steampowered

Undervalued wrote: »

He can give you a (hopefully) expert OPINION as to what he THINKS a court may decide. Remember though he will have only heard one side of the argument and he won't be paying the bill if it all goes pear shaped.

He will hopefully be able to advise the Op on whether the contract is completely clear (in which case he can say what a court would decide with an extremely high level of certainty), or ambiguous (in which case he can give an opinion but would tell the Op the decision could go either way).

Op please do give your friend the full contract, and then let us know what he thinks.

Yes the court would make the final decision, but that decision is based on what the contract says. The judge doesn't just pluck a random decision out of thin air !!!