Non Compete Enforceable?

[goncalossantos]

I am a junior software engineer. I left a previous job that I held for 9 months (was still on probation) from a small tech company last month and got an offer now from a huge multi billion tech company that has global reach and in no way competes with my old company. However, my old employer got contacted by a background check agency for my newjob and sent me this.. "I understand you've started work at X. As a part your employment with us, you entered into a trailing 12 month covenant not to be involved in any capacity with a competing business concern, which we view X as being. As such I would note our concern around potential breach of this agreement. Can you please let us know further on the nature of the role and responsibilities proposed, such that we can establish our position on this matter."

The jobs decriptions are compeltely different and the company have completely different scopes, both in terms of geography and interests, working on different market.

these are relevant restricted covenants:

During the period of your employment, and for a period of 12 months following the termination of your employment, you agree that you shall not, wheter directly or indirectly:

a) solicit or endedavour to entice away from the Company or any Sub-Contractor the business or custom of a Restricted Customer with a view to providing goods or services to that Restricted Customer in competition with the company or the Sub-Contractor

b) offer to employ or engage or otherwise endeavour to entice away from the Company or any Sub-Contractor any Restricted Person

c) be involved in any Capacityy with any business concern which is (or intends to be) in competition with the Company

d) be involved in any Capacity with any Sub-Contractor

e) be involved with the provision of goods or services to (or otherwise have any business dealings with) any restricted Customer in the course of any business concern which is in competition with the company or Sub Contractor, or

f) accept or demand commission, contribution, gift, or reimbursment in any form whatsoever from any Restricted Customer or other third party in connection with the performance of your duties under this agreement.

You acknowledge that the restrictions in this clause are reasonable and fair

Each of the restrictions is intended to be separate and severable. If any of the restrictions shall be held to be void but would be valid if part of their wording were deleted, such restricition shall apply with such deletion as may be necessary to make it valid or effective

My question is, is this enforceable?
It just seems so vague and broad that from what I have read it shouldn't be enforceable

 

[mauvais]

Presumably you are in the UK.

Non-competes are potentially enforceable, despite popular belief to the contrary.

Yours sounds very unlikely to be enforceable, on various counts: seniority, direct relationship and demonstrable loss. However I am not a lawyer.

Plenty of material on this, e.g. Restrictive covenants in employment contracts

If I were you, I would humour them briefly with the information they request, whilst making clear that it's a non-starter, and then if they persist, ignore and wait for them to do something tangible. The main thing is that they don't cause any harm to your offer.

 

[Manter]

Can't be used as restraint of trade- i.e. They can't be used in a way that makes it difficult for you to make a living in your chosen profession or trade. They can be used to prevent you using information from one employment in another. So a and b look fine, c onwards would likely be an issue in court (they won't take it to court, would be my guess)

I would respond with very short details, and confirm that you are not operating in a capacity which is in competition to them and will not be targeting their clients or using Information from your employment with them.

 

[Manter]

(Not a lawyer, still in the office next to one who agrees with me )

 

[goncalossantos]

Yes, thank you! I was mostly concerned with the c) one. THe other ones are completely not applicable, I'm a software developer, so no way I could entice clients or something.

This happened yesterday and I got really nervou because the new job is an opportunity of a lifetime. I replied with the job description that is publicly listed on my new company's website, and was a bit overeager (said something like "I will do anything to reassure you that my new job in no way is competing...")

I alslo spoke with my new company and they are going to get their lawyers involved. Still haven't gotten a reply from them so that is why I'm posting, I was affraid they would say that "Sorry, nothing we can do, and we are retracting the offer"

 

[Jackobi]

Acas helpline 0300 123 1100

Acas Helpline for Workplace Advice | Acas

They might be able to give you some sound advice.

 

[Manter]

Yes, thank you! I was mostly concerned with the c) one. THe other ones are completely not applicable, I'm a software developer, so no way I could entice clients or something.

This happened yesterday and I got really nervou because the new job is an opportunity of a lifetime. I replied with the job description that is publicly listed on my new company's website, and was a bit overeager (said something like "I will do anything to reassure you that my new job in no way is competing...")

I alslo spoke with my new company and they are going to get their lawyers involved. Still haven't gotten a reply from them so that is why I'm posting, I was affraid they would say that "Sorry, nothing we can do, and we are retracting the offer"

Sounds like your new company is supportive which is always a good sign.

You may well never get a response.

Enjoy the new job

 

[FridgeMagnet]

IME in software dev these clauses get C&Ped from US contract samples by small companies who really don't know what they're doing. It's always best to be polite as a default, so don't feel bad about replying, but don't be worried about it.

 

[equationgirl]

I agree with the above posts, especially if you are in a junior role. As Manter says, they can't prevent you from earning a living.

I am not a lawyer though.

There are also a number of other restricted covenant threads in this forum if you are interested.

Best of luck.

 

[goncalossantos]

Thank you for all the response. I just wantedd to update about what is happening so that I can help someone in the same situation.

I received a reply from them saying this:

Hi Gonçalo
Thanks for your emails.
Have you had a conversation with X about what the role would likely involve, and the nature of the projects and work? Is it in New York?
I could do a call Thursday afternoon 1.30pm if that works for you?
Best

Advised by my new company, I sent this:

Hi
Thanks for your message.
I don't have any additional details other than those I already provided you with, or other than what is available on X's website
But I have raised the issue with X, and if you let me know how exactly you deem that I may breach the clause in question, I may get back to you with their response.

My new company just wanted to know exactly what they thought would be a breach of anything, because no one can understand how my old company thinks they are competiotion.
To which I received this final reply:

Hi Gonçalo
Thanks for your email. There are a number of parts to the covenant. As a part your employment with us, you entered into a trailing 12 month covenant not to be involved in any capacity with a competing business concern, which we view X as being.
The reason I asked whether you were aware of the specific nature of the role was to establish whether we might be able to get to some exception: ie. that the role was in a completely unrelated part of the business, on completely unrelated products with unrelated clients. It isn't clear from what you sent that that would be the case.
Best

So they pretty much repetead the first email. I am now seeking legal advice to see if I put an end to this. Do you guys have any idea what my old employer wants? He seem to be insinuating that the onus is on me to prove my case is an exception just because he says he views my new employer as a competing concern. I'm pretty sure this isn't right...

 

[mauvais]

Are you or either of these companies in the UK?

 

[goncalossantos]

I am, and both my old and new jobs will be based on the UK. My old employer is mainly UK based whereas my new employer has offices all around the world, with its London office being the european HQ

 

[mauvais]

Right, was worth checking as US law will potentially be very different.

I suspect that, as FridgeMagnet says, your former employer is legally a bit clueless and trying to exert rights that they think they have because the wording is there. There's not necessarily any more complexity to it than that. At least if what you describe is true, it's massive overreach, and a waste of time in any case, but you are probably not going to be the one to educate them on that.

You should try and tread a path between being civil and forthcoming - you may still need a reference one day - and getting interminably dragged into the mire on it. Don't spend any money on it, and don't wind up your new employer with something that is only tangentially their problem. Do try and humour your old employer with any information you can give that will show separation between the two roles - it's not like you can really prejudice your own position here - and do try to draw a line under it.

If you go straight in with 'this isn't enforceable', you will get their backs up and encourage more of the same. But if they persist for several more iterations around the loop, I would politely make clear that there is no case to answer and they can go ahead and pursue it legally if they so wish.