Torquemada

Hi Snetters,

Firstly, sorry for the wordiness!

Wondering if you'd be so kind as to lend me a little advice, as Acas have advised that a solicitor is best with regards restrictive covenants.

I'm in sales, a prospective employer wants me to start immediately or as soon as possible but we have an issue; The company I currently work for contracted to the prospective new employer to supply my services earlier this year, ending in April/May. Now they liked me so much that they want to employ me directly but there is a clause from the contract from earlier in the year that states:

During the term of this Agreement and for a period of 6 months after it ends the Client shall not directly or indirectly without ******'s prior written consent entice away or seek to entice away from ****** or employ or engage or solicit the employment or engagement in office of any employee or officer of ******* who worked on the Assignment.

In the event of any breach of clause 7.1 above, the Client shall for each employee or officer pay to ***** immediately on demand a fee equivalent to one month's salary for the relevant employee or officer plus 20% of the total annual remuneration payable to such relevant employee or officer at the time of such breach.

Any advice? We have legal in the 'states looking at the contract but any ideas are welcome. From my own experience it's not massively enforceable but if anyone like Tubbs has any helpful suggestions it would be greatly appreciated!

Torquemada

Yeah I know, not exactly an amazing topic, no surprise no one has replied yet but hey, where are you guys!?

Hmm, ok, since I started this thread my current employers want to keep me and are looking at a nice counter offer and promotion, which is positive.

I still would be interested to hear what peoples experiences of restrictive covenants as employees/employers/contracted companies are though - anyone?

BULLITT

A mate of mine had this recently, he just waited it out. Personally I really fail to see how any employer can stop you working for whoever you want. At most all I could see it doing is causing "bad blood" between you and your current employer.

I can see it being semi useful when its someone wanting to work for a rival where company secrets and such would be at risk but to an everyday position, it's about as much use as a broken leg, just seems a way for employers to "take their bat and ball home" when you hand in your notice.

Torquemada

Thanks mate, yeah that's basically the way I see it.
The restriction is not through anti-competition etc. just them being greedy and wanting a pay off for nothing is the way I see it. However, as I am their biggest breadwinner, the realisation that I may be poached might work in my favour, I hope!

BULLITT

Have you discussed it with your new potential employer? If there's a possibility of your current employer demanding money from you then I would speak to a solicitor to see what your options are or if this part of the contract holds any weight at all. I know that they can't "demand" anything from you as far as money goes, most people's salary is already taken by bills and other necessary payments which you can legally be expected to bypass.

Torquemada

It's a weird one. Rather than asking me for money, they would want the new employer to pay to sort of buy me out from the current one, even when the new employer has nothing to do with us anymore.

Too right though, with a mortgage etc. to pay, if they asked me for money so that I can leave I'd probably go postal!

So now both employers know, my current one needs to step up.......

OK, whilst writing this they have come back and said they'll raise pay, promote me, give me new duties in line with it and also improve other benefits. Didn't expect them to be able to do that to be honest. Speaking with them honestly has helped (also being top performer and lynch pin there helps a bit!)

Torquemada

So, I guess the question has evolved a bit.

Do I stay where I am, considering they are investing in me, so they say (always paranoid about this stuff).

OR do I go to the new place and being in a more junior role but directly with an IT vendor rather than a company who specialise in maximising sales revenue for IT vendors via marketing, consultation and suchlike?

I think I have answered my own question now I've written that out!

mart360

If your as good as you say

Then get your new company to stump up the months salary +20%

Then you know they want you ....


OR It could be percieved another way....

if they take you out of the competition.... then the competition, may not be competition any more ......

TBF my last involvement with covenants, was with a house... we walked as thier a pita

Mart

BULLITT

If youre choosing to stay, Whatever they are offering, get it in writing with a specific date that the changes, including the pay rise will occur by, this gives you some backup and cover. If they go back on it then you have a written document stating what was offered, if they don't follow through with it, they in breach of their own contract and you would be free to leave and work for whoever you want.

Torquemada

I am awesome! lol, but I would say that as I am in the soul-less sales trade now (my IT geek mates ex-colleagues are appalled)

Yeah I am going to have to be careful about how I pit these guys against one another as the owners of each company know each other but I may have to go that route if the official docs BULLITT mentions aren't sent to me forthwith. Maybe a 'better the devil you know' scenario, for security's sake.

The guys who were offering the new job had already gone above what they would normally pay someone coming to work for them, signed off by the CEO and HR. Nice to be wanted, after I had such a crap time when the economy went to poo.

Torquemada

Spot on, I just had a conf call with the directors and I have told them to put something official in writing so that I can close talks with the other company who are trying to poach me.

I have sent the bosses an email with the actions to be delivered from the call, so now it is a waiting game. To be honest I never in a million years thought they would be able to match the new offer I have.

Thanks again for your advice and support, chaps!

I'll let you know how I get on.

p.s. I am on leave as well, so I'm not just farting around on t'internet when I should be working, lol.

PaulC72

I struggle to see how it is enforceable as your contract ends along with any terms signed up to when you leave - you are a free agent to move where you please and I am sure that being restricted and limited to where you can move is surely against a European law somewhere ;-)

Torquemada

lol, exactly my thoughts, Paul. OK sometimes EU legislation can be useful

Graz

Yes back to the original post I thought these terms in employment contracts generally aren't worth the paper they are written on.

Torquemada

Pretty much, the company who wanted to hire me were worried about getting sued.

Oh well, sorted now anyway but thanks for the advice etc guys. I was all ready for this to take ages to sort out but it turns out that we sorted it in a couple of hours. Nice