Switching jobs to a competitor company

M

Manwithdog

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I've been offered a position with a company who compete directly with my present employer.

On reviewing my contract, I've noticed there is a clause that says I cannot do so for a period of 6 months (!) after leaving. How easy would this be for him to enforce, is there a minimum term for such restrictive clauses ?
 
He could take legal measures to stop you but it would be an unusal judge that would stop you from working there (you have a right to earn a living). He could look for compo instead. It depends if you are nabbing customers from him...
 
Non-compete clauses are common in employment contracts and are generally enforceable so I wouldn't necessarily rely on a judge being sympathetic. You have a right to work of course but then you already have a job so no-one is trying to deny you this right. Your boss also has certain rights to protect his commercial interests.

If your current employer feels strongly enough, he could seek an injunction preventing you from taking up employment with the competing firm. This would be likely to tie you to your current job and may therfore make for a very uncomfortable work situation.
 
Thanks Magoo & Contemporary for your opinions.

What then are my options ? I've been advised of a couple of possibilities;

1. Leave and work in a self-employed capacity for a while.
2. Leave and take full-time paid employment with an aquaintance in his (non-competing) business for a few weeks, subsequently leaving him, and then joining the competitor.

Any thoughts ?
 
I cant see who option 2 gets you around the 6 month problem, would it be obvious you were working for the competitor?
 
So long as you don't work for a competing firm for six months after you leave, you can effectively do as you please for this period.

If the offer of the new job can be frozen for the six month period, it doesn't really matter what you do 9subject to your own finances, etc).

However, how sure can you be that the job will still be there in six months time? You'd be taking a chance but only you could determine whether it's a chance worth taking.

On the other hand, if you have already decided to leave the employer, you could risk taking the new job in the hope that your existing employer either wouldn't hear or wouldn't care enough to the point of taking legal action. The worst that could occur in this scenario would be that you would be forced back to either working on a self-emplyed basis or working for anon-competing firm. In other words, the situation you're facing now anyway.
 
Contemporary - yes it would be screamingly obvious that I was working for the competitor, as I would be in a fairly public sales role.
 
I've just put together a contract, in it came the non solication clause. It was interesting because in conversation, the parties couldn't care less about the clause but on paper it was a big issue.

How do you think your employer would think about it? how many of you are there? Without over inflating your importance. If there are very few of you then you are most likely on very thin ice. It really could be ugly...in that case six month notice is the best optiton. On the other hand if if you are one of 20 or 30 sales people in the country it is possible that your employers has bigger fish to fry.

QP
 
Queenspawn - thanks, some good points there.

Where this has become interesting is that my present employer (and possible future one) compete in the same patch for the business of 10-12 clients, most of whom already deal with both companies.

Were I to move, I would not be bringing a hitherto undisclosed client list with me. Each employer knows all there is to know about each client. Tieing me to the 6-month exclusion clause serves no-one, as there are no trade secrets or customer lists to be copied.
I would argue that were it imposed, it would be done purely for reasons of personal invective - would this be seen as good enough reason to strike down the exclusion ?
 
I presume you're leaving your present employer because you are unhappy with conditions or salary? Is it an option to be frank and tell them you've been offered a better position and then to see if they will come up with a matching offer etc?
 
I think you need to ask this question to a solicitor who specialises in employment law. In the UK, these clauses are widely regarded as unfair and unenforceable as they limit your career without any advantgae to you (ie all the advantages are for the employer). As you are not actively 'pinching' the existing client list I would guess you would be OK but advice from an employment savvy solicitor would tell you how much you need to worry, if at all.
 
Diziet said:
I think you need to ask this question to a solicitor who specialises in employment law. In the UK, these clauses are widely regarded as unfair and unenforceable as they limit your career without any advantgae to you (ie all the advantages are for the employer). As you are not actively 'pinching' the existing client list I would guess you would be OK but advice from an employment savvy solicitor would tell you how much you need to worry, if at all.
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This is good advice. I doubt that 6 months is enforceable in law, for example.

However, you should think about talking to your employer first.

Honest after all is usually the best policy.

You could tell them that this offer came in; that you didn't solicit it, explain the role and how in your view the anti-competitive clause is too restrictive.

They may (a) offer you more money (b) kick up a fuss or (c) walk you to the door.

The risk here is that you tip your hand, indicate that you are thinking of leaving, and then this job falls through. You are now off the promotion list (as you are leaving).

Are there any employees you could ask who left?
How likely is your employer to kick up a fuss?

There is no harm in telling the potential new employer about the anti-compete clause now and in fact you should definitely do this. If they find out later that you knew about it and didn't tell them, there could be hassle from their legal side!
 
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