RoseBrown1972 Posted June 16, 2010 Share Posted June 16, 2010 Hi This isn't a question related to Oz but i thought someone out there might know the answer. My hubby has just been approached by his former boss to go back and work for him, he knows we are moving to Oz in November and still wants him for 4/5 months. The problem is that the office is 5 mins away from my hubbys current job and is a competitor. He actually headhunted my hubby as he was the MD of my hubbys current employer then, it was his family business and they invested in the business and as they owned more shares they used his knowledge and forced him out so they are nasty pieces of work. He has always wanted my hubby on board again but hasn't been able to until now. My hubby has a clause in his contract that states he can't be employed by a competitor for 12months within a 28 miles radius. Obviusly this job is less than a mile away and will be started asap. Does anyone know if they are enforceable? We've been told that they're not but would like to hear it from someone who has had experience of this or is a lawyer rather than the opinion of in prnciple its wrong. I've tried ACAS and can't get through to the CAB, need to make a decision asap otherwise timewise it won't be worth it! By the way he won't be doing the exact same job and won't be responsible for getting new work just as he isn't know, he currently prepares estimates of the work with some health and safety work, his new job will be more health and safety. Its a sound move financially which is why we're considering it plus he hates his current employers and they really are idiots! Any advice very much appreciated! Thanks Link to comment Share on other sites More sharing options...
Que Sera Sera Posted June 16, 2010 Share Posted June 16, 2010 Hiya I work for Acas and they are open until 8 every night. I will pm the answer to you. Link to comment Share on other sites More sharing options...
RoseBrown1972 Posted June 16, 2010 Author Share Posted June 16, 2010 Thanks, I did try them first but they said they couldn't help and recomended a lawyer Link to comment Share on other sites More sharing options...
boganbear Posted June 17, 2010 Share Posted June 17, 2010 Hi I'm a legal librarian and these clauses are called restrictive trade clauses and ARE enforceable. However, it depends upon the circumstances of the current contract and potential job. They also exist in Australian law too. If your husband's current employers are not very nice it would be sods law for them to threaten or actually take legal action. A time restriction of a year and distance of 28 miles may seem quite harsh to you and me but such restrictions have been enforced. If he did move jobs the employer might give a bad reference for getting jobs here which is not something you want so might be worth putting up with things until you move. You need to get legal advice as I am not qualified to offer it. Many solicitors offer a cheap or free half hour consultation which might be all you need. Good luck Link to comment Share on other sites More sharing options...
Guest soon2move Posted June 17, 2010 Share Posted June 17, 2010 I worked in HR in the UK and had this clause in our contracts. It is enforceable and they can be difficult about it. He needs to talk to them and see where they stand. Realistically the hassle the company was to go through to sue him over it would be quite expensive and time intensive for them so probably wouldn't, however, to me often the more important issue is burning bridges with that company which is likely to happen if conversations turn sour. I think him outlining what his new role is versus the current/old role may help but its about intellectual property that they are most concerned about. They may put him on garden leave for a few weeks so the company can advance without him knowing whats happening and in that time he isn't allowed to start working for the new company. He would more than likely have to sign something to agree to it. Really it comes down to how flexible they are, what their views are of your hubby/ his role (i'm sure its all good), their relationship with him and perceived risk of letting him go to a competitor so soon. Good luck with it. Link to comment Share on other sites More sharing options...
RoseBrown1972 Posted June 17, 2010 Author Share Posted June 17, 2010 Thanks for advice. To be honest talking with them won't work in this case, the COE is a nutcase and very unpredicatble but what doesn't work in our favour is that she hates the guy offering the job with a passion which is most amusing since she was the one that shafted him big time! We were thinking of saying his reason for leaving was we're moving to Oz for my job and he needs time to sort things out, then work his leave or do the garden leave and then leave it a week and start, his excuse would be my job got delayed and his new boss had contacted him when he heard on the grapevine that he had left, so he rang him back and said I'm available. I know not great to lie but the truth won't work either! His existing role is an estimator with a health and safety aspect, the new role will be quality control for just the 4 fours months so we're hoping thats enough. But they're not going to be flexible. Based on the advice we've been given they have to prove he has lost them customers and cost them money, I think they'd find that hard when he is only being brought into to get H & S up todate. Burning bridges and lost reference is an issue, but we suspect even if he doesn't do this when we go in November we suspect they will be funny with him! He is highly thought of but more so because he is the only one in the company who does his job,some people can do parts of it but not all of it. Thinking as I type could that we used as costing them money- but surely he has the right to leave his job, its there fault they have no one else! The new employer is an old boss and has headhunted him twice and was the old MD so his reference would more than cover him! Its a risk we know but financially could be worth it! Thanks again for advice Link to comment Share on other sites More sharing options...
Guest guest33730 Posted June 17, 2010 Share Posted June 17, 2010 One of our employees was taken to court last month by his ex-employer (a competitor) as he came to work for us (we had no idea he had the clause in his contract). He was served with an interdict and it went to court the following week and the Judge said basically "You signed the contract so you must live by it" and now he can't work for us or obviously his ex-employer. He has also been left with around £2,000 of legal fees!! I would suggest being very careful!! Daniel Link to comment Share on other sites More sharing options...
RoseBrown1972 Posted June 17, 2010 Author Share Posted June 17, 2010 One of our employees was taken to court last month by his ex-employer (a competitor) as he came to work for us (we had no idea he had the clause in his contract). He was served with an interdict and it went to court the following week and the Judge said basically "You signed the contract so you must live by it" and now he can't work for us or obviously his ex-employer. He has also been left with around £2,000 of legal fees!! I would suggest being very careful!! Daniel Was this person doing the exact same/similar job and in a position to use his knowledge to take customers off there ex employer? Think that is what makes the difference, as his new role will be purely to sort out health and safety and nothing to do with customers, plus will only be for 4 months before we go to Oz Link to comment Share on other sites More sharing options...
Guest guest33730 Posted June 17, 2010 Share Posted June 17, 2010 Was this person doing the exact same/similar job and in a position to use his knowledge to take customers off there ex employer? Think that is what makes the difference, as his new role will be purely to sort out health and safety and nothing to do with customers, plus will only be for 4 months before we go to Oz We tried that one - The person was doing an Admin function for us and was not selling (as he was in his previous job). The judge said it made no difference as the knowledge he had gained in his previous post would still be prejudicial. Daniel p.s. I Own a letting agency in Paisley/Glasgow Link to comment Share on other sites More sharing options...
Guest guest33730 Posted June 17, 2010 Share Posted June 17, 2010 Also I forgot to mention - The restrictive covenant was only for six months and so the guy only has to wait until August before he can work for us again but that shows that the fact you are leaving in a few months probably wont make a difference in law Daniel Link to comment Share on other sites More sharing options...
RoseBrown1972 Posted June 17, 2010 Author Share Posted June 17, 2010 OK thanks Daniel I will bear that in mind, From what the CAB and what I've seen is they have to prove they have lost customers and money I think they'd struggle do that in my hubbys situation as for years before my hubby was there both companies tendered for the same jobs, both win some and lose some as there is a tendency to for their customers to want to keep there options open so give both and other companies work. The other thing is that there are not many companies that do my hubbys line of work so such a covenant really hampers his ability to work within a reasonable distance of where we live! How did they prove that him working for you had cost them money/customers? Stupid really for you when ultimately he will be back working with you soon, 6 months isn't long if you have a contact you can influence then you still can after 6 months! And you still have that knowledge! Link to comment Share on other sites More sharing options...
Guest guest33730 Posted June 17, 2010 Share Posted June 17, 2010 How did they prove that him working for you had cost them money/customers?! The really stupid thing was that he had previously worked for me before going to the competitors and we had a similar clause in our contract when he left but chose not to use it!! As far as proving loss was concerned they couldn't really prove it (although they tried to say he was contacting clients) but the judge took the view that it was obvious that taking sensitive knowledge from one company to another would be detrimental and therefore upheld their case. The guys lawyer was a bit surprised but it would cost too much to appeal Daniel Link to comment Share on other sites More sharing options...
RoseBrown1972 Posted June 17, 2010 Author Share Posted June 17, 2010 The new boss was the MD of the current employers, it was his family business but he took on investment to grow they company, they let him take on good staff including my hubby and they forced him out as they owned more shares once they got what they wanted! Yours is the first actual case I've heard of but mostly the advice I've been given is that most companies don't bother due to time/cost but these do have money behind them which worries me! We are waiting to see if the offer is worth it and we have asked for legal advice to be taken. To be honest they deserve to be shafted! Fingers crossed we make the right decision! Link to comment Share on other sites More sharing options...
Guest Bob Tonnor Posted June 19, 2010 Share Posted June 19, 2010 Now i am no expert on this but if you want to get into the nitty gritty of restraint of trade in contracts you can read this, Australian Competition Law and maybe this Nordenfelt v Maxim, Nordenfelt Guns and Ammunition Co - Wikipedia, the free encyclopedia . In Australia, Australian law is derived from the english law, restraint of trade clauses in contracts are basically void under the common law. I would say it is probably a simple matter of do you want to spend your last months in the UK fighting a legal battle so you can go work for someone you hate? As a legal question i reckon its winnable, if you have the time and money and good representation. Bob Link to comment Share on other sites More sharing options...
Peach Posted June 19, 2010 Share Posted June 19, 2010 Could the husband freelance for the 4 months? and in that way be self employed but selling a service to the new company - would that get around it? Link to comment Share on other sites More sharing options...
RoseBrown1972 Posted June 19, 2010 Author Share Posted June 19, 2010 No the contract specifies all types of employment/selfemploy ment etc but that could be its downfall as its too wide and people have to work, seeking legal advice as we have had the same amount of advice saying we will be ok as we've had saying we won't! Link to comment Share on other sites More sharing options...
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