New job contract clause - normal or not?

[iamsoshocked]

DS has just got his first job offer for September. It's for a Business/engineering consulting company. Looking through his contract, he called us to ask if it's normal to have a clause which says if you leave the company, you can't work in the same field for 18 months. Or words to that effect anyway.
What if he wants to move to another company? Does he have to be out of work for 18 months? That can't be right.
(we are both freelance so have no experience with this kind of contract).

Non-compete clauses are subject to the common law principle of “restraint of trade”: they can’t legally enforce a clause which entirely prevents DS from working in his chosen field / field of expertise. They can insist that he signs a non-disclosure agreement if he were to leave to work for a direct competitor, or place some restrictions on him starting a directly competing business of his own (such as not contacting the customer base he created through his employment), but anything beyond that is too broad.

Yes its normal, 18 months sounds a long time though. It shouldn't prevent him getting ANY job, it should be to prevent him from leaving and taking his current employers clients with him. I had one at my last company which prohibited me working for competitors for a period of time, can't remember how long for. You need to check the exact t+cs of the clause

In my line of work they have non compete clauses within a certain mile radius of the current job. As yet none have managed to make them stick.
I wouldn’t sign anything that said I couldn’t work for 18 months

18 months is very long for a non-compete in a first job!

And they are the most difficult to enforce BUT if the employer is intransigent they can make things difficult

My son works in digital engineering and his contract says that if he leaves he can’t work for any of his company’s clients for (I think) 9 months. But he could do something similar (think 3D printing etc) in another area or for a completely different company.

18m sounds a long time, they can be useful in certain areas (a good one might be pub manager not able to manage a pub within 2 miles for 6m for example to prevent poaching of trade) to restrict stealing of clients but my understanding is they are very hard to enforce. We once tried to enforce one which was 6m when someone left and set up the exact same business in direct competition to us, taking the entire team with them but it was costly and we decided not to pursue past pre action. 18m is particularly long, would it mean he couldn't work at all? If so I can't see it being enforceable but more importantly does he want to work in a company that is trying to do something unreasonable right from the get go? Appreciate he may not have much choice so I'd be warning him to be alert to this in case there are wider organisational issues.

If it is so restrictive as to prevent him getting other work (which this is) then it's pretty much unenforceable.

That is totally unreasonable and wouldn't get very far legally if your son got proper legal advice.

That said, it is a massive red flag that the company is ruthless and I wouldn't work for them personally.

18 months sounds a long time and it depends on his role... ie if he's middle management or below it seems very unfair, less so if he's high up!

OK. thanks all. I've just asked him to send me the actual wording they have used in the clause.
It's a shame, because otherwise, he's really excited about the job.

I work in engineering consultancy and that sounds ridiculous to me, it would (if enforcable) basically trap you at that company. Ive seen clauses restricting going to work straight for a client within say 1 year. People hop around all the time between consultancies!

As a lawyer - that’s too long and too wide so very likely unenforceable.

Most employers wouldn’t enforce at all anyway - but in this case good luck to them in court. Just do some research but it’s a massive red flag.

@To111ornotto111

Thanks! Do you need any new graduates?!!

Non compete clauses aren't unusual but often not enforceable, especially if they are long.
However, they CAN be enforced sometimes. I was approached by a company to work for them and they were very very insistent about checking my existing contract for a NCC before making me an offer. I did have one but it wouldn't be an issue due to how it was worded. I actually didn't take the offer to work for them BUT I found out that they had recently invoked a NCC when an employee left them and it had gone to court and won.

Lawyer here.

what everyone else said.

It’s disproportionate and unreasonable, thus unenforceable.

also, some US states have made these clauses unlawful and there are similar waves in debate for the UK now.

moreover, let’s say your son breaks the clause. What’s the company going to do? They can’t actually enforce it (without yyyyears of legal proceedings and tens of thousands), and they can’t sue for damages because they haven’t actually lost anything (in all likelihood).

I’d query the clause as if HR have made a klutzy mistake and see if they offer to remove.

To add, if your son were super senior, they might be able to get away with the 18 months but would have to qualify with eg a geographical element eg “not work for anyone in X town”. It can’t just be “wherever in the world”. But for someone as junior as your son? No chance

if a subsequent company asked to see his contract, he can respectfully refuse and cite a confidentiality clause etc

this is what gardening leave is for. They can’t reasonably expect anyone to sit unpaid between roles.

Honestly at my company we discourage it and get peeved in someone goes to a competitor but honestly we wouldn’t actually do anything about it unless there was some very obvious propriety issue. They would have to sit out their notice period though which is 3-6 months. I have seen 1 year clauses but they were paid.

Wrong time of year I'm afraid! Hope he gets it sorted

Non compete clauses of very tricky to enforce, but they do have their place.

I’m going to be a bit vague here, but I used to work as a consultant. To do that job, I was given unbelievably confidential information about my clients. It would have been extremely damaging to my company’s reputation if I quit and then went to work immediately for one of a client’s competitors. Sometimes even just the information in my head would have been enough to hurt the client if given to a competitor. So I had a clause that I couldn’t go work for any related company for 2 years. Since we switched clients constantly, that was a lot of industries that I was banned from applying.

no one would have really cared if I went to another consulting company. However, I might not have been an interesting candidate because I would not have been able to take on certain clients.

it didn’t matter, because I got excellence experience and skills. I didn’t want any of the jobs that I wasn’t supposed to apply for.

It is his first job. Non compete clauses are often not enforceable and there is case law on this. If it's a good job/offer I would just sign it and see what happens.

Something else I've just come across as this is something I'm currently thinking about, is that if an employer can terminate a contract on short notice, that makes it harder for them to enforce non solicitation clauses because they've not really protected their own information by not having a longer notice period ( where they could enforce gardening leave)

@HiddenInCubeOfCheese or anyone really.
Would you be willing to check the paragraph out for us please if I copy it to you? Sorry to be cheeky. 😱🥰💐🙏🏻

Yes, it’s normal, nobody abides by it though

If this is the sort of unreasonable and probably unforceable clause that the employer is putting into a contract, I'd be looking beyond just that particular clause and asking an employment lawyer to look through the entire contract for other items that might be questionable - such as insisting that an employee signs away their rights under the Working Time Regulations, or unfair notice periods, unworkable holiday approval / holiday allowance procedures, unclear rights regarding working off-site or at client sites (e.g. who pays for travel, accommodation, meals etc) and so on.