Is my DS restrictive covenant enforceable?

[oldmissmort]

My son has worked at minimum wage for a retail company for the past three years. The specific type of business is specialised.
It is his first job since leaving education. He has the opportunity to move to another company trading in the same field but has a clause in his contract about not being allowed to work for a similar company within 6 months of leaving and within so many miles.
Is this enforceable on the basis that he is on minimum wage and his only experience is in this field?

[UnexpectedItemInShaggingArea]

His salary and experience don't have any bearing on it. It's unlikely that a company would pursue him so it's is worth the risk.

These clauses are usually in place to stop people poaching customers for their new company so as long as he acts appropriately it should be fine.

[nilbyname]

I would doubt it- my DH was in the same situation but at a senior level, his previous employer tried to enforce the clause and a couple of scary solicitor letters later... It all went away!

I would ignore it.

[OurBlanche]

They can't enforce it if it prevents him from finding work.

So, as he is on the lowest rung possible, they would be doing just that.

As pp have said, it is intended to stop managers etc stealing clients. They won't chase down a shop assistant, shelf stacker etc.

[MachiKoro]

I take it this is IT? I have seen it enforced before now.

[nancy75]

Blimey I have never heard of this in a retail contract, to inflict this kind of thing on a person on minimum wage who might just be getting a little step up is nothing short of bloody nasty.

[RayofFuckingSunshine]

DH has just been through this when offered a job with a direct competitor. He is in a professional job and quite senior, his contract had a number of restrictive covenants. We ended up paying for legal advice before him taking the new job. Solicitor advised that they were unenforceable because he wasn't senior enough, they weren't specific enough and it would not be in the public interest for a case like that to go anywhere even if the company did seek to enforce them.

[oldmissmort]

Thanks for the replies. I thought it would be stretching it a bit - but the boss is a nasty piece of work - so it is worrying DS. Don't want to say what field and where as would potentially identify DS but it's not IT.

[nilbyname]

Bet it's a call centre!

Honestly don't worry about it, it's totally not enforceable if it's not"reasonable". Tell your ds to disregard.

[BeakyMinder]

It's not enforceable because it would breach his human rights to earn a living! Lots of employers have these in their standard contracts (mine does too). They might possibly enforce it for a really high value employee who was threatening to take clients with them. Even then there are ways around it.

[prh47bridge]

His salary and experience don't have any bearing on it

His salary and experience DO have a bearing on it. If he was a senior executive the courts may enforce the covenant on the grounds that it is reasonable for the employer's protection. For someone in a junior role on minimum wage the courts would almost certainly take the view that the covenant was not reasonable and hence was unenforceable.

[oldmissmort]

Thanks for more feedback. My DC always joking " you're not on Mumsnet again are you?" DS not saying that now!!!! More than grateful !
Not a call centre. Not being awkward about field on purpose but it's so specialised both in field/location that it would ID him!

[MummyBex1985]

There are quite a few misconceptions on this thread.

A non competition covenant is, in theory, fully enforceable if it is concisely drafted and goes no further than is reasonably necessary to assist in protecting the employers legitimate business interests. That applies even if it deprives the employee of employment in their chosen field and it isn't deemed a breach of human rights.

Salary and seniority are however taken into account when considering if the covenant is reasonable.

However, it's impossible to say whether this particular clause is enforceable or not. Firstly, I would need to see the wording to check for any drafting errors. Secondly, the fact that he is paid minimum wage and working in retail points away from it being enforceable - but the fact that it's a specialist area points towards it being reasonable. Thirdly, the covenant may well be properly drafted as six months is a reasonable time restriction, it has a geographical scope (although you don't say what that is) and only relates to relevant business activities which again points towards it being enforceable.

Basically a non compete covenant is usually designed to prevent the employee from passing on or using specialist knowledge - such as clients, prices, suppliers etc. If it's a narrow field and a lot of damage could be done by an employee working for a competitor then it could well be valid even though it's a restraint of trade.

He would have to do the ex employer a lot of financial damage for them to want to spend circa £10k in legal costs on a high court injunction, though...