Is my old contract valid when offered a new role with the same company?

lithium_101

Hello!
I joined a company in 2013, signed an Employment Contract which contained my job title, place of work. notice period and non-compete clause etc. 
I resigned from that role in 2016 and started to work my 4 week notice. 
So, just before my last official working day in 2016, my boss makes me an email offer for a new role in a new team with the same company. He offered me fully remote working, outlined the new responsibilities and offered a generous salary (plus a 7 week paid mini sabbatical!). I caved, accepted the new role in 2016 and stayed with the company. I was not given a new contract for the new role. 
So kind people, the time has come for me to move on.. I've accepted a new role with a competitor but am concerned about the non-compete clause in my original contract. I understand non-competes are potentially easy to circumvent and both my new employer and recruitment agency have said there is unlikely to be any grounds for a court case. My role is not in sales and I cannot influence customers etc. Technically there are no interests to safeguard within the non-complete clause. 
So... in a worst case scenario. Could I state I was never issued a non-compete for my current role and therefore they cannot reference my old contract? 
Any advise would be welcomed. 
Ta,
 

General_Grant

lithium_101 said:

Hello!
I joined a company in 2013, signed an Employment Contract which contained my job title, place of work. notice period and non-compete clause etc. 
I resigned from that role in 2016 and started to work my 4 week notice. 
So, just before my last official working day in 2016, my boss makes me an email offer for a new role in a new team with the same company. He offered me fully remote working, outlined the new responsibilities and offered a generous salary (plus a 7 week paid mini sabbatical!). I caved, accepted the new role in 2016 and stayed with the company. I was not given a new contract for the new role. 
So kind people, the time has come for me to move on.. I've accepted a new role with a competitor but am concerned about the non-compete clause in my original contract. I understand non-competes are potentially easy to circumvent and both my new employer and recruitment agency have said there is unlikely to be any grounds for a court case. My role is not in sales and I cannot influence customers etc. Technically there are no interests to safeguard within the non-complete clause. 
So... in a worst case scenario. Could I state I was never issued a non-compete for my current role and therefore they cannot reference my old contract? 
Any advise would be welcomed. 
Ta,

Did you actually have a break in your employment?  That is, instead of leaving on the expiry of your notice, did you continue working - in the role from which you resigned or the new one?  Did you get a P45?

Marcon

lithium_101 said:

I understand non-competes are potentially easy to circumvent and both my new employer and recruitment agency have said there is unlikely to be any grounds for a court case.  

Where does this 'understanding' come from - a properly informed legal source, or reading vague headlines on the internet?

Of course the agency and new employer are telling you there's no problem...although whether it's dawned on them that they could be roped in for encouraging you to break a clause in your contract may be something they haven't stopped to think about.

Get yourself some proper advice - a lot cheaper and less messy than contesting any claim your current employer may decide to bring.

lithium_101

Hi, firstly thank you for replying. 
There was no break of employment. I continued working at the company and gradually transitioned into my new role. There was no written start date for the new role and I did not receive a P45. 
I guess there was no legal requirement for them to issue a new contract for my new role? Would the email offer be deemed an agreed change to contract I signed in 2013?
Thanks. 

JohnDorian

Non competes are not easy to circumvent as per the advice I received a while ago. There are specific rules around how a non compete is worded and if it is worded correctly then it applies.

You really need to get specific legal advice in relation to your contract and situation. I wouldn’t personally take the advice of a recruiter or future employer because if you end up in court it will cost you to defend yourself and potentially pay the damages.

Sandtree

Contracts do not have to be signed to be effective and as you withdrew the resignation then the existing contract stands. Even if you had ended and came back without any new wording it'd be a fairly strong argument that the implied contract would be on the same terms. 

As others have said, its easy for those with no financial interests to say its not a problem for you but if they are so sure are they willing to put an indemnity clause into your new contract so they cover any liability that may arise inc defense costs?

lithium_101

Thanks for all the replies. Some useful info here. It seems my decision to stay in 2016 would be deemed a continuation of my existing contract, so no get out jail free card for me.. I guess my options are to negotiate the 6 month restraint with my current employer, ask my new employer to accept any liability for costs or see if the non-compete can be omitted due to the wording?  I'll seek some independent legal advise on this. 
Thanks, 

Mands

lithium_101 said:

 I guess my options are to negotiate the 6 month restraint with my current employer, 

Is there a geographical limitation within the clause? 

Mickey666

lithium_101 said:

Hi, firstly thank you for replying. 
There was no break of employment. I continued working at the company and gradually transitioned into my new role. There was no written start date for the new role and I did not receive a P45. 
I guess there was no legal requirement for them to issue a new contract for my new role? Would the email offer be deemed an agreed change to contract I signed in 2013?
Thanks. 

I'd guess the same as you and would conclude the email describing the new role and salary would be deemed to be a change to your original employment contract.

Even a pay rise is technically a change to your employment contract, which is why a typical notification would be something like "Dear ????, this is to confirm your new salary will be £xxx starting on [date].  All your other terms and conditions remain the same"

If such a notification of change is not contested within a reasonable time (not sure if there's a legal time required) then it will be deemed to be accepted by both parties.  Of course, no one contests a salary increase, but the notification does constitute a formal change to the existing employment contract and is why it usually confirms 'all other terms and conditions' remain the same.

Even if such a notification does not include that confirmation, I think it's a reasonable assumption that all other T&Cs remain the same when there are no grounds to believe otherwise . . . and given there has been no break in employment in this case, why would there be any doubt about the existing T&Cs not remaining in place when only the job title and salary had been formally notified as being changed?

lithium_101

Mands said:

lithium_101 said:

 I guess my options are to negotiate the 6 month restraint with my current employer, 

Is there a geographical limitation within the clause? 

Hi Manda, there is reference to a Territory as below:
"Relevant Territory" means the area constituting the market for services of the Company.
I work in IT and the company services a global market place (as does my new employer). Is the use of Relevant Territory perhaps to ambiguous thus to restrictive? 
My new employers had their legal team check the non-compete clause (during the early stages of my application) and said the 6 month non-compete would be deemed unreasonable by a court given my contracted 4 week notice period. I don't have this in writing and this was not legal advise. I have a call lined up with an independent Solicitor on Monday for their input.
Thanks for taking the time to reply. 

lithium_101

Mickey666 said:

why would there be any doubt about the existing T&Cs not remaining in place when only the job title and salary had been formally notified as being changed?

Hi Mickey_666, yes I think this is a relevant question. Given there was no official wording in my 2016 offer, it would have been implied that all other T&C's remained the same. Its probably not worth pursuing this in the event of a court case. I will however just mention the 2016 email offer contained details on my new role and responsibilities, bonus, place of work and changes to my shift pattern.  This was in addition to the title and salary changes. However, I'd expect the original T&C's are implied as stated. 
Thanks replying.