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I recognise that ultimately I would have to get advice from a solicitor but first I have a question I was hoping someone could answer.
In brief -
Hate my job. Got new job. Resigned from my job. Started working notice.
Few days later I received a letter from my employer saying they are enforcing post termination restrictions which would (among many other things) prevent me from taking up my new job for a period of time. Turns out when contracts were reissued to keep them 'up to date' there were restrictions and I signed without realising.
The restrictions are in a separate document (called an appendix).
Sections 1, 2, 3, 4 relate to things like intellectual property.
Section 5 (the section they specifically say they are enforcing) then follows something like this.
a) for 6 months after termination I won't do this
b) for 6 months after termination I won't do that
c) for 6 months after termination I won't do something else
d) blah blah blah
e) etc etc
My question is this
If (for example) restriction 5b is unenforceable what does that actually mean?
Does it mean?
1) The whole appendix is void/unenforceable
2) The whole of section 5 is void/unenforceable
3) Just item 5b is void/unenforceable but everything else is still enforceable
4) Something else (if so what?)
Any advice on what unenforceable actually means in this instance is appreciated.
Thanks.
Post employment restrictions can't normally be enforced as it is restricting you from earning a living in your chosen field. They may however prevent you from approaching clients, IP rights and such. They can't stop you from being as an example a sales manager for another competitor but they can stop you using your knowledge (pricing, contacts etc) gained whilst employed by your current employer.
what he said they cannot restrict you from doing your job unless they pay you as it is restraint of trade and actual law trumps whatever they say- it is rarely enforced when companies try
Generally used to stop you stealing their things and exploiting them- ie intelectual property
Time to start talking to them IMHO about what they will do etc
Its expensive to try and enforce and they know this too
Serve your notice not working and then add another month? Haggle for three months
Worth seeing what the new company say as well
What do you do - if you just work in saless and they wont let you then you will have more of a case
If you work for Microsft doing the Internet Browser and you move to Chrome they will have more of a case as you are using what you know from current employment rather than generic skills
Also more likely used for a CEO role for gardening leave than done on admin staff for obvious reasons
IIRC they still ned a coherent[legal] reason for doing this rather than because they want to
Also depends if there is might be a deeper reason why you're leaving your current job
if, for example, you were leaving your current job because you felt that your employer was in fundamental breach of one of the existing T&C's of your contract and felt that you had a case for constructive dismissal, then their breach would mean the contract is no longer enforceable in its entirety, including the restrictions.
that may be a hint!
Tell them you accept their conditions and look forward to receiving your next six months' wages.
Do you have a copy of the appendix that you signed along with the contract at the time?
Can that apply if the OP resigned without making a case for constructive dismissal?
OP, I believe the law states that when you enter into a contract that Ts&Cs need to be agreeable to both parties. However, some of these may be against the law. For example, I could make you sign a contract that states that you will sell me your firstborn. It maybe agreeable to you and me, but it's illegal and if you wanted out then no court would make you sell the child to me.
I'd ask them to clarify exactly which things they feel make it justified for them to ask you not to seek employment. The burden of proof to show that you seeking employment will threaten their legitimate business interests and is of a period of suitable length falls on them if they want to go to court anyway.
For example, their case will be stronger if you are a senior employee, or are party to trade secrets.
Your case will be stronger if you are not a senior employee, or are moving to another geographical region.
Ultimately, get your solicitor to write asking them why it's justified and to prove it and they may decide to let it go. Remember, lawyers aren't expensive, it's going to court that is. A good one will usually try to get you to settle before it goes to court.
Good luck.
A claim for cnostructive dismissal can be made up to 3 months after leaving so not really relevant
Thanks to those who have taken the time to reply. I understand that every case is different and different factors can have an influence.
I'm as sure as I can be that the clause preventing me from taking up employment immediately is unenforceable and therefore I can start straight away. What I don't understand is how that effects the other clauses.
It wouldn't surprise me if they were to take action against me 'out of spite'. There are so many restrictions I expect that individually many of them are enforceable. I wanted to know if I do start my new job straight away do I still have to tread carefully for 6 months or have all the restrictions become void.
So what is your job and are you actually taking anything with you (ie people you will contact)?
Best job description would be 'out sourced IT - jack of all trades'.
I'm not in the normal type of role which has restrictions (such as sales) and I don't have access to any financial information/trade secrets (but I am virtually the only point of contact for some customers which seems to be causing the concern).
Go and see an experienced employment lawyer and let them deal with it, it may seem ott but they know what they are going and your employer will know that as well
Every contract I've signed has something similar, but I've never heard of it being enforced. This is in a high tech area, with lots of companies doing the same within about 15 miles of each other,so very common for people to move around (I've been to 3 others 5-6).