get out of non compete in reasonable way

saunaboy

Hi,
I recently left my old job to move to another business & have realised that it was a huge mistake (they have changed scope of role after I resigned...). But done now & I'm looking to move on.
I have been contacted by a competitor of my old business with an ask to talk about a great job with them.
The problem is a non compete. I had a 3 month notice period + 6 months no work for competitor in my old contract. My new firm is a competitor of neither of them & I only have a 1 month notice period.

The new firm are looking to appoint someone asap. My non compete runs out at end of Feb, but this is too long for new firm, they need someone in asap.

IF I were to agree to go in say end of Jan or even after Xmas, would I be exposed to legal action, or would it likely be seen as not worth it? I'd be going in 4-5 months after leaving last firm, and after having worked briefly for someone else inbetween. Company offering chance of job have said I am perfect for role & only issue is length of wait. I have countered that other less well suited candidates at level I am at will all have 3 months, with takes it now until after xmas anyway.

Appreciate any thoughts!!

Jillanddy

I don't see how you can expect anyone here to guess what your employer would do. Assuming the clause is enforceable - and I would certainly never assume it isn't without clear written legal advice to that effect - then what your employer may or may not choose to do will be entirely down to them. They may very well see it as worth it - not least to prevent someone else doing it. Or they may not.

Also, unless I am reading this wrong, you have already moved to another employer, so it isn't your current employer but a previous employer with whom this contract stands. That is somewhat more complicated. Honestly, if you have any concerns about it, I think it is worth taking proper legal advice. We can tell you it won't matter. We can tell you it will. We can tell you is may. All answers may be correct. But you can't sue us for being wrong! 

saunaboy

fair comment - was just seeing what opinion was.

I think the clause must count, hence my question here re 'reasonableness'. Otherwise anyone with a similar clause would just take a fiddle job for a few days to nullify the first contract...!

Not the case here - took this new job on basis of plans set out by CEO. During notice period they were replaced new one who has reversed most things & left me with a non-job unfortunately.

oh_really

saunaboy said:

The new firm are looking to appoint someone asap.

I guess you've learned something from events and are aware of any likewise restrictions to be imposed by this prospective employer.

saunaboy

oh_really said:

saunaboy said:

The new firm are looking to appoint someone asap.

I guess you've learned something from events and are aware of any likewise restrictions to be imposed by this prospective employer.

Sorry don't understand that comment.

The firm who are offering me a role need someone in faster than my non compete would allow.

What was asking was opinion whether old company (who I left a month ago) are likely to take action against me if they hear I start with a competitor 5 months into a 6 months non compete.

Jillanddy

oh_really said:

saunaboy said:

The new firm are looking to appoint someone asap.

I guess you've learned something from events and are aware of any likewise restrictions to be imposed by this prospective employer.

Unfortunately, it's not really that easy to negotiate with a prospective employer unless they are so desperate to get you that they will agree to almost any terms. And whilst such clauses are often over-used (and often unenforceable) they do serve a purpose in some industries. If your industry knowledge and/or client base is valuable, it isn't unreasonable to not want current knowledge falling in to the hands of a direct competitor. 

saunaboy

no client base. would be a specialist project management role.

Undervalued

saunaboy said:

oh_really said:

saunaboy said:

The new firm are looking to appoint someone asap.

I guess you've learned something from events and are aware of any likewise restrictions to be imposed by this prospective employer.

Sorry don't understand that comment.

The firm who are offering me a role need someone in faster than my non compete would allow.

What was asking was opinion whether old company (who I left a month ago) are likely to take action against me if they hear I start with a competitor 5 months into a 6 months non compete.

As Jillanddy has said, nobody can answer that with any degree of certainty.

Even if you pay for specialist legal advice you may well not get a clear answer. Plus, you can only sue the lawyer if their advice is negligent, not just because it turns out to be wrong!

Finally, even if you got correct advice that any claim brought against you would most likely fail, you still have to consider what it may cost to defend any such action if the old employer decides to try.

There is no easy answer. Most likely you will be fine but nobody can tell you that for certain. Occasionally employers play difficult, they could potentially try and involve your next employer in any action claiming that they enticed you to break a legally binding contract. If that happens, unless you have truly exceptional skills, your potential employer may just find it easier to hire somebody else.

For future reference, never enter into this type of contract unless you are prepared to be fully bound by its terms. Assuming it is not enforceable is dangerous. It may not be but that doesn't mean you won't be involved in an expensive battle establishing that.

Sorry!

oh_really

I guess I've failed to be understood. Having been burnt by your previous employer, you've checked this new one isn't going to apply similar restrictions should the time come for you to move on in future either by way of non compete or unduly long notice period.

General_Grant

oh_really said:

I guess I've failed to be understood. Having been burnt by your previous employer, you've checked this new one isn't going to apply similar restrictions should the time come for you to move on in future either by way of non compete or unduly long notice period.

and I thought you were pointing out how roles can change between recruitment and actually taking up the position with a new employer.

getmore4less

In these situations I think one key element is what the prospective employer would do if the old company with non compete clause comes after you.

Would they defend or just drop you, as they could get pulled into a case.

One factor that comes up is restriction of trade, I think you may have blown that option as a defence as you got a job with a non competitor.