Do everything in writing from now on telephone calls have a habit of never happened. Any meeting ask for the agenda before hand so you are prepared for the conversation/meeting Having a quiet word is bullying
So far no response in writing, and I suspect that he (my old company's Ops Director to whom I reported) is now somewhat concerned that he doesn't make any faux-pas in responding - he isn't legally qualified and I suspect has been told by someone higher up the chain that he needs to speak to me. My asking for it in writing will have thrown him.
Been through this. Your last employer has not a hope in hell of applying that rule through the courts. Let 'em huff and puff, cos that is all they will be able to do. Serve them with a cease and desist notice if they do not back off.
I don't do employment law so I didn't jump in on this but after reading the thread, I think some of the advice given is a bit gung ho tbh. However, I do have experience of such clauses in commercial "contract for services" cases. Each case turns on its facts but the court will apply the following principles. Are designed to protect a legitimate business interest. Are no wider than reasonably necessary to protect that interest. Are not contrary to the public interest. The considerations are slightly different when considering contracts of employment or contracts for services. In an employment context (in which the courts would be more likely to interfere than with a purely commercial contract), a restraint of trade clause of 6 months duration was upheld by the Supreme Court in 2017. However, it is not possible to say whether it would be upheld in this case, as that would require specialist knowledge of employment law (which I don't have) and also a lot more info about the market for health and safety managers in the local area. https://www.supremecourt.uk/cases/docs/uksc-2017-0182-judgment.pdf Have you heard anything further?
Nope - no written or verbal (telephone) response after my email asking for details in writing sent early Sunday morning (ie 2am). I started my new role today and told my Manager about it - she also left the same company 3 years ago for my new employer. She said that "they tried it on me, and put me on gardening leave. You've already left, so there isn't much that they can do - they can't stop you earning a legitimate living". As for the market for H & S Managers, before I left I helped them recruit my replacement by filtering the 40 cvs we received down to four. I then assisted in interviewing those 4 candidates - the successful one was working at Amazon doing the same role.
Your manager is incorrect I'm afraid as there is something your previous employer could do. If they are serious enough they could apply for an interim injunction (which is what happened in Tilman v. Egon Zehnder) and possibly get an expedited hearing within weeks. I am not saying that will happen, but what your manager told you is overly-bullish advice from a non-lawyer and should be taken with a pinch of salt. Hopefully though it will just turn out to be sabre-rattling and nothing will come of it as my experience of these sort of situations in the related area of restraint of trade clauses in contracts for services (mainly IT contractors in the City) is that threats are often made but rarely followed through even when the contractor only moved to the bank next door. I suspect that will happen in this case because unless you are actually adversely affecting their business then they probably won't bother wasting money on legal fess by pursuing you.
My previous employer sued several people for breaches. But they were for two things: breach only compromise, they were paid not to go to a competitor and breach of confidentiality when a sales guy contacted all the clients he had been managing. Only the ones he didn’t already know were deemed in scope. Don’t know the outcome of the confidentiality, but the compromise guy had to pay back 10’s of thousands.
Here's a little twist to all this. Many moons ago I was presented with a contract that had all the stuff about preventing me working on the same field blah blah blah. We were only a 5 man company so I had easy redress to the MD who wrote the contract. I complained so much about that clause and several others that he lost the will to impose anything. The big joke is that the contract wording ended up as '...the employee must work in a similar field upon termination...' blah blah
We are talking about someone who makes sure a company follows health and safety law. Last time I checked those laws weren't kept confidential . Good luck with your new job, enjoy it!
Update - tonight I received this email from my ex-manager (I have removed company names): Re: Contractual post termination restrictions Following on from your email on Saturday 4th July 2020, advising that following your retirement from ****** on 30th June 2020 you had been approached and subsequently offered employment as a Health & Safety Manager with ****** which you commenced on Monday 6th July 2020. Firstly, thank you for transparency with me in relation to the offer of employment you have received. As you can appreciate this news took me by surprise as your new employer is deemed a direct competitor of us due to their ownership of a bathroom fixture company. Following on from the signing of your contract of employment with us on 24th April 2018 you have agreed to several post termination clauses in relation to your employment during and for a period after you leave. I would like to take this opportunity to draw your attention and remind you of them. I attach a copy of your signed contract so that you can refer to and take the time to read and remind yourself of: Section 18.2 Confidential Information With regards to this clause we would be very grateful if you can undertake the following: Return any confidential information or copies of information that are deemed the property of the Company to myself by close of play on Wednesday 15th July 2020. Confirm in writing that you have deleted any information which is deemed confidential and stored on computer networks, emails, memory sticks etc. Confirm in writing that you fully understand the requirement of this clause and will comply with the content. Section 19 – Restrictions In relation to this aspect we ask that ensure that you comply with all the requirements of this clause and adhere the time-period specified. I would also like to draw your attention to the fact that at present you are in breach of the clause relating to working with a direct competitor due to the fact as highlighted that your new employer own ****** who are a direct competitor to us. Even though this is a direct breach of the clause as the 6-month period is not up, we are not going to prevent you from taking up employment or earning a living. However, we need you to understand that should we be made aware of any confidential information relating to us been leaked to your new employer or their subsiduary in regards to aspects such as strategic direction, business activities, trade secrets or any other confidential business information we will consider taking legal action due to your failure to comply. Please can you acknowledge in writing the requests as stipulated under the Confidential Information clause and ensure that all confidential information or copies of information which are deemed the property of us are returned to me by the date specified. Additionally, please can you confirm back in writing that you will adhere to the restrictions as specified in clause 19. I hope you understand my reasons for sending this letter and I wish you all the best in your new employment. Please do not hesitate to contact me should you have any further questions. Yours sincerely
Sounds OK? A fair bit of CYA, some reasonable requests, a lttle face saving and some well wishes. Result!
Best keep those health and safety regulations to yourself! All is well that ends well. Congratulations and well done.
