Restrictive covenants - advice needed!

bigdavecox90

I have handed my notice in at work last week, which was graciously accepted (sad to see you go etc) and was honest about leaving to go and work for a direct competitor.

Having arrived into work today, I have been called into a room and a copy of my contract read to me which states essentially that I cannot go and work for a direct competitor within a 6 month period of leaving. Let me add at this point, other employees have gone to 'said' company recently and no action has been taken. I've been advised that as they were not in a role as vital as mean, this is why nothing had been done.

I have stated that I feel I'm being treated unfairly due to the fact that I have been pulled up on this, when others have left and have not?

Essentially, my contract does state the black and white that I can't work for a competitor, but is there anything I can do with the other piece surrounding me being treated unfairly. How can this be allowed?

Please someone advise...

A very desperate Dave.

Undervalued

What has happened with others is completely irrelevant unless you can show that you able being discriminated against purely because of a protected characteristic (e.g race, gender sexual orientation etc). Otherwise there is no legal obligation to treat different employees in the same way.

Beyond that, restrictive covenants are a complex legal area. Properly drafted they can be enforceable provide the scope is not too wide. Ultimately only a court can decide and you will need expert, one to one, legal advice if you want to challenge it.

bigdavecox90

Thanks Undervalued, I expected this to be the case.

So realistically, there is no way I can claim that I'm being treated unfairly? Surely if I have proof from others that they were not 'prosecuted', this would help my case?

Undervalued

bigdavecox90 wrote: »

Thanks Undervalued, I expected this to be the case.

So realistically, there is no way I can claim that I'm being treated unfairly? Surely if I have proof from others that they were not 'prosecuted', this would help my case?

Not in the slightest I'm afraid.

It is a popular myth that if an employer treats Tom and Richard in a particular way they must do the same with Harry.

You might have a valid legal claim against two suppliers. Just because you decide not to sue one doesn't mean you can't sue the other!

All that matters here is whether the agreement is legally enforceable and, to be honest, whether you can afford to fight a claim even if it is not.

London50

Personally I do not think you are being unfairly treated, you agreed the t&c's when starting the job. What has happened to others does not matter it is what COULD happen to you that is the important thing.
If it was me I would take the risk and go with the other competitor and and then wait and see if anything happens. I know it is more than likely a 50/50 chance that they COULD take it further but IMO too much would depend on cost v chance of winning their case and IF in is a smaller company factoring in that side MAY not be worth the hassle.
I am no expert this is just my opinion but should you choose to go for the new job I hope it works well for you :0)

gettingtheresometime

But what about being able to earn a living?

Say you're a hairdresser then unless you work for one employer all your life, you'll be either working for a competitor or be a competitor.

Undervalued

gettingtheresometime wrote: »

But what about being able to earn a living?

Say you're a hairdresser then unless you work for one employer all your life, you'll be either working for a competitor or be a competitor.

That is why the scope of the covenant is important.

To say a hairdresser couldn't work in the field at all for 6 months would almost certainly be unenforceable.

However to say they couldn't work for another salon within a mile radius for 6 months would very likely be upheld.

This is a very simple example of a complex subject.

Malthusian

Although it's been established that what happened to the other employees who jumped ship is irrelevant from a legal perspective, are you able to contact them discreetly and ask whether they had the same problem?

In a court of law it may be irrelevant, but it might still be helpful to know if they went through something similar and the company eventually backed down.

Undervalued

Malthusian wrote: »

Although it's been established that what happened to the other employees who jumped ship is irrelevant from a legal perspective, are you able to contact them discreetly and ask whether they had the same problem?

In a court of law it may be irrelevant, but it might still be helpful to know if they went through something similar and the company eventually backed down.

Yes, that could be worthwhile.

One other point to keep in mind (and sorry to add to the OP's woes)!

The current employer could also go after the new employer for enticing the OP to breach his contract. Again it is not certain they would win but all too often the new employer takes the easy / safe option of withdrawing the offer and giving the job to somebody else. That can be the worst of all worlds as you end up with no job.

sangie595

Undervalued wrote: »

Yes, that could be worthwhile.

One other point to keep in mind (and sorry to add to the OP's woes)!

The current employer could also go after the new employer for enticing the OP to breach his contract. Again it is not certain they would win but all too often the new employer takes the easy / safe option of withdrawing the offer and giving the job to somebody else. That can be the worst of all worlds as you end up with no job.

Yes, I've known that to happen. Unless you have a particularly unique skill set and knowledge then it is easier by far for the new employer to just find someone else who isn't a risk. And if you do have those unique qualities it's more than likely a covenant could be upheld.

steampowered

Do you feel comfortable sharing the exact wording of the restrictive covenant? There may be a technical get out in there.