No leg to stand on whatsoever.

Nope nothing doing there.

I just plotted it on a map and it covers an area of 2,500 square miles!

Would they be able to with hold a reference?

I am pretty sure that these types of clauses have been taken to court and judged an unfair practice. However many employers still include them in T&C's as workforce legal protection is so weak.

Actually, it's closer to 5000 square miles...

[quote=Flaperon ]Actually, it's closer to 5000 square miles...
Mibbe half of it is ocean? 😆

The area is roughly 40x60 miles...whatever area that is 🙂

The answer is it depends. But my employment law is not up to date . Such clauses can be valid. As your post is worded it comes across if the clause was not in the contract but elsewhere, I assume that is wrong. If it was not in the contract then terms and conditions are irrelevant. If the term is part of the original contract then from memory the clause will only be effective if it is reasonable or can be made reasonable by deleting bits without rewording or addition. 40 miles on the face of it seems a bit wide ranging ,is it a rural big animals practice? Maxim the guy who invented the eponymous machine gun was subject to a valid worldwide clause .

It was in contract when the person joined. The new place isn't even that close, 20 miles maybe?!

utter bolleux - contractual idiocy - can be a sign of a poor or ill informed employer.

valid worldwide clause

Not legal under European and UK law. It is a restraint of trade, the law is quite clear on that. What you can't do is steal clients or use proprietary information/technology that was developed specifically for the company you were working for. However if you are taking just your own skills as a vet/electrician/weapons designer, there is nothing they can do legally to prevent you from moving to a new company.

However they can play dirty tricks with references so it is best to seek an amicable departure if possible.

Actually it's not illegal to prevent you leaving to join a competitor in the same industry / area / within a certain timescale. It can be quite legal, but to be so, the first employer should be offering something in return for that consideration, and simply offering employment itself would not normally be considered sufficient.

If they had said we offer you employment, plus a million pounds which we give you in consideration that in the event that if you leave you don't join a competitor, they might be able to get that to stick. But as above, if all they offer in return for your everlasting loyalty is the job itself..... no.

Isn't this what gardening leave is about: stay out of the office and don't work for anyone alse until your knowledge of corporate stuff is no longer current and useful?

Not legal under European and UK law. It is a restraint of trade, the law is quite clear on that.

Crankboy is right. You are wrong.

slowoldgit - Member
Isn't this what gardening leave is about: stay out of the office and don't work for anyone alse until your knowledge of corporate stuff is no longer current and useful?

Contract law cannot over rule statute, so the restraint of trade statute has precedence. That said, whether or not the restriction in the contract is determined to be a 'restraint of trade' would need to be tested in court. However, unlikely it would be enforced as all the employer could do is sue, which is expensive and there is no guarantee of outcome.

How would they enforce it?

Friend got taken to court by arsehole employer trying to enforce this sort of crap.

He won but found it all v stressful obvs.

RichPenny - Member
How would they enforce it?

chakaping - Member
Friend got taken to court by arsehole employer trying to enforce this sort of crap.

He won but found it all v stressful obvs.

I signed a contract when working on r&d stuff, that I wouldn't go to a competitor and work on a similar product taking technology we had worked on due to ip rights, etc. Which wasn't a problem as I changed sector completely.

Contract law cannot over rule statute, so the restraint of trade statute has precedence. That said, whether or not the restriction in the contract is determined to be a 'restraint of trade' would need to be tested in court. However, unlikely it would be enforced as all the employer could do is sue, which is expensive and there is no guarantee of outcome.

It's whether it's a reasonable one....... and whether you've been compensated for agreeing to restrain yourself. As above, a contract (or in my case a later 'employee handbook') whether or not you knew about it / signed up to it simply to get or keep your job is not normally sufficient. But if they compensate you in addition, then they may have a case.

A quick google shows that footflaps and others are correct from [url= http://www.out-law.com/page-7086 ]here[/url]and [url= http://www.lindermyers.co.uk/are-restrictive-covenants-enforceable_751.html ]here[/url]

the restrictive covenant is void on the grounds that it is a restraint of trade and contrary to public policy. [b]It follows that an employer is generally not entitled to protect himself against competition from his ex-employees[/b]

The first thing to note about restrictive covenants is that they are void as a restraint of trade. Any attempt by your employer to deny you the right to make a living in your chosen industry or profession is taken very seriously by the court.[b] If, for example, your contract of employment imposes a blanket ban on you working for a direct competitor of your employer, even for a short period of time, this is unlikely to be enforced by the court[/b]

Isn't this what gardening leave is about: stay out of the office and don't work for anyone alse until your knowledge of corporate stuff is no longer current and useful?

I was told of a case in F1 where the team put the employee into gardening leave for 2 years, contract said he couldn't work on any F1 stuff (even in private although not sure how that was enforcable).

Employee fought and won based on the fact that 2 years away from his chosen profession would make his worth to his new employer low so his career was at risk so it was an unreasonable clause.

Gardening leave in general though is a little different from being told you can't leave to work for a competitor as you are being compensated for not working.

Of course in a very specialist sector like F1 there will be reasonableness tests as to how long gardening leave can last for but in general 1-12 months is not uncommon depending on the sector.

What an employer cannot do is say we accept your notice wef whatever date but you cannot then go on to work for a competitor.

They can (and do a quick google search for Towergate restrictive covenant cases) restrict you from approaching certain clients or from poaching other staff - say the 10 largest clients or whatever.

A chap left Towergate, took a team of people with him, approached a large number of clients and was left somewhere in the region of £1.5m worse off following judgement

He fought the covenants on the basis they were a restriction on trade but because they were very specific and not a blanket ban on him trading the case was ruled against him.

It was seen as a big test case in the insurance industry as prior to this restrictive covenants had been assumed to be pretty much unenforceable but due to the way they were worded in the Towergate contract they very much were.

EDIT - re: the reference. There is no duty on an employer to give a reference and some firms have a policy now that no reference will be given.

Any reference though must be entirely factual and these days pretty much consists of yes soandso did work here between x and y dates had 4 days off sick and didn't have any formal disciplinary action.

Gone are the days where the boss then adds 'but I though he was a complete dickhead and would not employ him again as long as I have got a hole in my arse'

It's a civil matter. All the employer could do is sue the ex-employee.

They would have to prove that the had suffered a material loss which then financial compensation would be have to be paid.

Unlikely they would succeed.

Note - I am not a lawyer. Suggest you friend speaks to ACAS for free advice.

[i]Gone are the days where the boss then adds 'but I though he was a complete dickhead and would not employ him again as long as I have got a hole in my arse'[/i]

I find a simple " would you re employ this person" gives me pretty much the answer I need every time

I've worked in the same hi tech industry around Cambridge for the last 25 years. Every contract I've signed has this sort of thing, but it's never been applied (if it's possible). Given the industry I'm in, and the number of companies within 25 miles of Cambridge, most people have swapped companies several times (we call it ink jet bingo, the most is about 5 differant campanies).
So it seems that companies still put it in contacts, but everyone knows it means nothing.

Toys19, here's a quote, from your first link:

A restrictive covenant is typically clause in a contract which prohibits an employee from competing with his ex-employer for a certain period after the employee has left the business, or prevents the ex-employee from soliciting or dealing with customers of the business by using knowledge of those customers gained during his prior employment.

The starting point for any such post-termination restriction is that it is void on the grounds that it is a restraint of trade and contrary to public policy. It follows that an employer is generally not entitled to protect himself against competition from his ex-employees. [u]However, if the ex-employer can convince a court that the covenant is:
designed to protect his legitimate business interests; and
that it extends no further than is reasonably necessary to protect those interests then it will be upheld and enforced[/u]

🙄

The area is roughly 40x60 miles...whatever area that is

If it's a "radius" then surely the area is a circle ?

😉

It might be a county - easy to define and determine.

(edit) for ng, I think the OP was guarded or brief, or both.

I just presumed, as it said radius in the OP.

cynical-al, which does not contradict what I posted - it says

employer is generally not entitled to

ie generally, so yeah if the bit that you posted applies, but I find it hard to imagine proving this. We know the law is meant to be combative, ie tested to find the right solution, so what I posted is not definitive, as you well know it is quite hard to find any aspect of UK law that can not be challenged, even statute.

as above generally not enforceable and as long as they did not take business with them then it would be hard for the employer to show a loss

It is best to be amicable - ie leave and agree to turn down any business directly linked to their work at the current employer [ for a time limit of say 1-2 years]that approaches them as a result.

JY, you're too kind.

I'd agree that it would be a decent compromise not to approach previous clients either directly or indirectly (eg; advertising on the new practice's website that so and so has now joined), but if clients seek out where she's gone to themselves, surely they're free to do just that?

Otherwise she's effectively telling her previous clients that they aren't free to choose where they place their business, and their choice is either to stay at the old place or if they don't like the remaining staff there, to go a third practice.

Toys19: I think you'll find that the links you posted actually contradict the people who you think you're supporting and support the people you think you're contradicting! 😀

toys19 - Member
cynical-al, which does not contradict what I posted - it says
employer is generally not entitled to
ie generally, so yeah if the bit that you posted applies, but I find it hard to imagine proving this.

You seem to think the exceptions, where the restrictive covenant is valid, are rare. Unless you've some idea of the case law, then your opinion is pretty meaningless IMO - plenty of them are valid.

My mate is a barrister specialising in employment I asked for case reference. She said she couldn't be arsed to get involved in a lame discussion on the internet and pointed me at those two websites and said she has never had an employer win when they try to stop an employee working for a competitor.
Meanwhile, Al can't you find some case law to prove me wrong? or give an example (related to the OP) Otherwise: back at ya!

Kona, I don't see it that way. Convince me baby (although my mate has me pretty convinced an she is a poor barrister).

It speaks for itself - I don't have to convince you! 😀

Although I have just asked another question:
Does she know of any case law stopping an employee working for a competitor as I have just realised the flaw in her response-ie that [b]she has never lost[/b] one of these..

Kona Nope try again...

I'm not commenting on this case specifically (though 2 years seems excessive), my point is that there are bound to be a reasonable number of enforcable RC's around - you seem to be saying there are hardly any.

Lawyers will be drafting some of them and they will know what's enforceable, there were plenty to study when I did contract law many years ago.

Also...it depends on the circumstances of each case.

Yes jonv that is what she is doing hence why its a compromise as they are letting her work there - neither side is very happy nor furiously mad

I suspect they would get away with doing whatever they want tbh but it would be best to try and be fair then just walk anyway and see what they do

Its restraint of trade they wont, IMHO, be able to enforce

my point is that there are bound to be a reasonable number of enforcable RC's around - you seem to be saying there are hardly any.

Shifting the goalposts! My reference was purely to consider the idea that she could not get a job with a competitor, in such a generic industry which is what I asked the barrister. There are obviously loads of enforcable RC's, just that stopping someone from carrying on their trade is harder to enforce, than say stopping them from trying to poach clients of the previous employer. Which seems all the googleing in the world shows that this is the case.

How does this restraint of trade apply to franchises?

Shifting the goal posts indeed...

what do you mean Al, in my post the bits in bold are about preventing employees from getting a job in the same industry, this was my point? How have a shifted the goalposts? I never said other RC's were uncommon. I think you are making prejudgements against what I was saying