A friend of mine who works in sales has been headhunted by another company, operating in the same field. The contract of employment states that there must be a gap of 12 months between leaving and starting afresh with a rival, albeit a much smaller rival.
The current employer has useless back up office personnel and expects long hours of work, who has finally caught up with my friend.
Would becoming a self employed sales agent, representing a few smaller companies in the same field, get around this?
I have strongly advised seeing an employment law specialist.
My friend is certain that the current employer would take court action because the sales figures are so good! But only because of the unreasonable hours worked.
Has anyone any experience of this please?
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They cant physically stop him joining another company, and the chances that he would be sued are minimal.
How hard he worked for his old company or the conditions has no bearing on the fact, unless he could drag in constructive dismissal
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Although this is a very standard clause in employment contracts in this sort of field, I have have never, ever, heard of it being successfully enforced. Tell him to remain polite to his erstwhile employers but to get right on with his next opportunity.
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Whilst it's not exactly the same situation, Humph's and Z's advice is similar to that I received when I changed jobs 12 years ago. I resigned and was sent on gardening leave for 3 months. My new employer wanted me to start immediately.
The advice was that they could stop paying me (of course) but that suing me for breach of contract wouldn't be worth their while. In the end I didn't, because breaching my contract would have cost me some share option rights, but that was a different matter. I also got paid for doing nothing for 3 months.
If they want to pay him for 12 months then it might be a bit easier to injunct him - but I imagine few courts would have much sympathy with an employer preventing somebody earning a living for a year.
If he gives them reasonable notice then they'll probably kick him out anyway. Even if they send him on paid gardening leave they've still deprived him of his job which also puts him in a stronger position.
Not legal advice, but the gist of what I was told in a leaving situation.
He should be careful about secrets though - if he takes contract documents etc then he has weakened his position. Of course he might have a good memory.
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...Not legal advice...
Nor is this, but I can't see how this contract can be enforced.
It's a civil matter, so the only issue is damages, not punishment.
How can damages be calculated?
The existing employer may claim loss of business, but the competition already exists, so the existing employer's customers could decide to go elsewhere at any time irrespective of where the OP's friend is working.
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It's a restraint of trade. So illegal I suspect unless he is made a payment to compensate - which must be at least what he would get in his new job....and then further more as his employmnt chances are diminished...
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...t's a restraint of trade. So illegal...
I tend to agree, although the employee has signed the contract.
This type of agreement does exist higher up the food chain.
A person selling his business may agree not to start a similar business within a set period of time as a condition of the sale.
It's a moot point whether a person can voluntarily surrender their legal rights.
An under-age girl may willingly have sex with an adult, but in law she cannot give her consent, so the act is still illegal.
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Salesmen are a fickle incestuous bunch of money grabbing Wh-Bags, (specially in the IT game) slagging* off competitors in one breath and then joining them on the next exhale.
As an employer all you can do is limit the damage of a move, As soon as you get a sniff they are leaving, immediately cut access to company resources, pay off any notice period and escort from the premises, tell your clients etc etc.
Its a smooth practised process, everyone in the trade is aware of it - including clients! I have never heard of anyone in the lower to middle reaches of the food chain having any issues over contracts of employment. (and most people have a non disclosure clause in a contract of employment - which is what in effect is at the heart of the OP's original question)
*Yes I know you cant slag off competitors, but check out the term "FUD" if you have never heard of it.
Last edited by: Zero on Sat 20 Aug 11 at 09:29
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Changing jobs. Contract clauses. - Zero
