Restricted covenants

Doshwaster

As long as you don't do anything stupid or illegal such as downloading customer account database or taking any other protected material with you then it's very unlikely that it will be worth the time, money and hassle of trying to enforce the restrictive covenant. People jump between sales jobs in the same industry all of the time.

MEM62

Marcon said:

MEM62 said:

If the restricted covenant is included in your statement of main terms (contract) the it is not worth the paper it is written on once you have resigned as that contract is terminated.  However, if it is a separate document it may still carry weight.  However, as has already been mentioned, these terms can be very difficult to enforce and, in your circumstances, I would not be worrying about it too much.     

Some terms can and do survive the termination of a contract - and this is one of them. It's why it is called a restrictive covenant. How else would any employer enforce a restrictive covenant (and some do, with great success). Only if the employer breaches the contract would it cease to apply. 

Brynsam said:

MEM62 said:

If the restricted covenant is included in your statement of main terms (contract) the it is not worth the paper it is written on once you have resigned as that contract is terminated.  

Nonsense. If an employee resigns, they are still bound by any restrictive covenants they entered into (unless they are found to be excessively restrictive) at the time they signed their contract. If the employer terminated the contract and did so in a way which breached the terms of that contract, then the covenant would lapse.

I have had this debate on more than one occasion.  The first time the point was questioned I checked it with our advisers.  I will not name them but they are once of the UK leading firms.  I am assured that any such term included within a contract of employment will not stand the test of litigation.  However, it will stand as a separate document.         

LittleVoice

MEM62 said:

Marcon said:

MEM62 said:

If the restricted covenant is included in your statement of main terms (contract) the it is not worth the paper it is written on once you have resigned as that contract is terminated.  However, if it is a separate document it may still carry weight.  However, as has already been mentioned, these terms can be very difficult to enforce and, in your circumstances, I would not be worrying about it too much.     

Some terms can and do survive the termination of a contract - and this is one of them. It's why it is called a restrictive covenant. How else would any employer enforce a restrictive covenant (and some do, with great success). Only if the employer breaches the contract would it cease to apply. 

Brynsam said:

MEM62 said:

If the restricted covenant is included in your statement of main terms (contract) the it is not worth the paper it is written on once you have resigned as that contract is terminated.  

Nonsense. If an employee resigns, they are still bound by any restrictive covenants they entered into (unless they are found to be excessively restrictive) at the time they signed their contract. If the employer terminated the contract and did so in a way which breached the terms of that contract, then the covenant would lapse.

I have had this debate on more than one occasion.  The first time the point was questioned I checked it with our advisers.  I will not name them but they are once of the UK leading firms.  I am assured that any such term included within a contract of employment will not stand the test of litigation.  However, it will stand as a separate document.         

Was this once a leading firm?

Any way - were they talking about a contract which had been signed by both parties or simply a written statement given to the employee?

And had you set the scene of a probable reasonable restriction in terms of time, geography and activity or was it of the ever, anywhere, anything variety?

MEM62

LittleVoice said:

MEM62 said:

Marcon said:

MEM62 said:

If the restricted covenant is included in your statement of main terms (contract) the it is not worth the paper it is written on once you have resigned as that contract is terminated.  However, if it is a separate document it may still carry weight.  However, as has already been mentioned, these terms can be very difficult to enforce and, in your circumstances, I would not be worrying about it too much.     

Some terms can and do survive the termination of a contract - and this is one of them. It's why it is called a restrictive covenant. How else would any employer enforce a restrictive covenant (and some do, with great success). Only if the employer breaches the contract would it cease to apply. 

Brynsam said:

MEM62 said:

If the restricted covenant is included in your statement of main terms (contract) the it is not worth the paper it is written on once you have resigned as that contract is terminated.  

Nonsense. If an employee resigns, they are still bound by any restrictive covenants they entered into (unless they are found to be excessively restrictive) at the time they signed their contract. If the employer terminated the contract and did so in a way which breached the terms of that contract, then the covenant would lapse.

I have had this debate on more than one occasion.  The first time the point was questioned I checked it with our advisers.  I will not name them but they are once of the UK leading firms.  I am assured that any such term included within a contract of employment will not stand the test of litigation.  However, it will stand as a separate document.         

Was this once a leading firm?

Any way - were they talking about a contract which had been signed by both parties or simply a written statement given to the employee?

And had you set the scene of a probable reasonable restriction in terms of time, geography and activity or was it of the ever, anywhere, anything variety?

Should have read "one of the UK's leading firms"
Initially, this was discussed it in relation to the review / revamp of our SMT's so, as a general point rather than with reference to a specific case or employee.  Based on that review this we make all such covenants a separate document.  When my belief on this was challenged in a post some time back I ran this by them again and the original advice was endorsed.  The view is that a contract of employment can be terminated (It does not matter by which party) and that, once terminated, any T's&C's contained therein are also terminated.