Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today. How different is the new role to the original one?
Ideally the contract the employer will try to rely on should reflect the job you are actually doing. Nevertheless it is possible for an old contract to still apply even if your job has changed, as long as it can be shown that this is a standard contract for the employer which is likely to have applied in any job you would have had with them, in which event the only things that would have changed would have been the specific terms governing the job, such as title, pay, and duties.
Saying that, such clauses will not necessarily be enforceable anyway. It is common for employers to want to protect their business interests from unfair competition by current and ex-employees. This applies especially to employees who have knowledge of sensitive and valuable information, have considerable influence over the workforce or have strong customer connections. However, at the same time it is in the public interest to ensure that employees are free to move between employers and use their skills, knowledge and experience in a new setting.
Whilst employers try and impose certain restrictions on their employees, under the doctrine of restraint of trade, any contractual term which seeks to restrict an individual's freedom to work for others or carry out his trade or business is illegal and unenforceable. The exception is when the employer can show it has a legitimate business interest that requires protection.
Legitimate business interests (LBIs) are commonly accepted to include:
An employer cannot impose a restrictive covenant merely to stop someone competing, but it can seek to stop that person using or damaging something which legitimately belongs to it, such as an LBI.
The most common restrictions are:
There are a couple of options open to employers when trying to enforce restrictive covenants:
In summary, the law on restrictive covenants is very subjective and depends largely on the individual circumstances of the business and the LBI that needs to be protected. There are no set rules and procedures, apart from the requirement for the restrictions to be reasonable and go no further than is required in the circumstances. Therefore, it is usually only down to the courts to establish whether a restriction is enforceable and, if so, whether an injunction should be granted or damages should be awarded.
this is covered by the non-dealing clause so it depends if such a clause exists
well the inclusion of the word 'deal' could suggest they intended this to be a non-dealing clause so they could try and rely on that. However the issue remains the same - no one apart from a judge in court can decide whether these clauses were reasonable and enforceable. The employer can try and implement them, you can try and resist them - it is rare that both parties would agree on their enforceability, so in that event it would be for the employer to pursue this further if they wanted to and the only way is to take it to court, where a formal decision would be taken. Until they do that, and there is no guarantee they would, you are not prevented from dealing with these customers. Also the restriction would be from the time your employment actually terminates, so the end of your notice period
Please let me know if this has answered your query or if you need me to clarify anything else for you in relation to this?
You are most welcome. Please take a second to leave a positive rating for the advice I have provided as that is an important part of our process. Thank you and all the best
DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.
The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).