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Ben Jones
Ben Jones, UK Lawyer
Category: UK Employment Law
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Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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Hi, I have a restrictive covenant in my employment contract

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Hi, I have a restrictive covenant in my employment contract that does not allow me to work for a competitor for 6 months after I leave my current employment as I am privy to sensitive information. The company have just extended my probationary period by another 3 month(9 in total) and I want to leave to go back to my previous employment who are a competitor. What are my rights?

Ben Jones :


Before proceeding please note that as I am a practising solicitor, I am often in and out of meetings, travelling between clients or even at court when I pick your question up. This may even occur at weekends. Therefore, I apologise in advance but there may be a delay in getting back to you and providing my advice. Please be patient and I will respond as soon as I can. You do not have to wait here and you will receive an email when I have responded. For now please let me know what is your specific question.

Customer:

Hi, I have a restrictive covenant in my employment contract that does not allow me to work for a competitor for 6 months after I leave my current employment as I am privy to sensitive information. The company have just extended my probationary period by another 3 month(9 in total) and I want to leave to go back to my previous employment who are a competitor. What are my rights?

Customer:

To be more specific, the company I want to go and work for is specifically listed in my current contract. I do have access to some customer pricing information but no trade secrets or copyright info etc. I started on 2nd of Jan2013 and was told I was on a 6 month

Customer:

To be more specific, the company I want to go and work for is specifically listed in my current contract. I do have access to some customer pricing information but no trade secrets or copyright info etc. I started on 2nd of Jan2013 and was told I was on a 3 month trial period, this has now been extend twice until end of sept 2013. Please help, this is causing me alot of stress and worry.

Sorry about the delay in responding I have only just managed to log back in to check this thread.

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:
• Trade secrets and confidential information
• Trade or customer connections
• Stability of the workforce

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.

Non-competition covenants will generally be unenforceable, unless the employer can justify their use. As a matter of general law, once they leave employees are restricted from disclosing confidential information amounting to a trade secret. As with non-solicitation covenants, the restriction must be for a limited time. And will only really be enforceable if by working for a competitor you are infringing on the current employer's LBIs. So that could be for example you using some confidential information or trade secrets in your new job. However, simply working for a competitor without using such information is unlikely to be sufficient to enable the employer to enforce such a restriction.

I would be grateful if you could please take a second to leave a positive rating. Your question will not close and I can continue providing further advice if necessary. Thank you
Customer: replied 4 years ago.

Hi Ben,


 


Thanks for the information, I have one question. Does me still be in my "probationary period" have any bering on this?


 


Many Thanks

No that would have no bearing on this
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