Can I ignore the non-compete clause in my employment contract?

[pinkcarpets]

I recently left work due to unreasonable work load after months of trying to resolve issues between my employer and my team - the situation became untenable (I posted about this previously under a different username). I've been job hunting for a while and have been offered what I think is my perfect job, but our industry is small and the position is within what could be termed as a key competitor.

Within my contract I have a non-compete clause, which excludes me from participating in the management/operation of a business that is a competitor to my ex-employer. This clause lasts for 12 months.

Would it be fair to think this clause is pretty unenforceable, bearing in mind my 15 years of experience is in this area, and it would be tricky to find employment elsewhere?

My potential new role is within a different department to that I've been working in previously, operations rather than sales, so I won't be customer-facing as before.

I've never had to deal with this covenant before as I was made redundant from my last job!

I think it falls under restriction of trade or around stopping you from earning a living and unless they’ve paid you 12 month salary to compensate for the fact that you can’t work for somebody else are you garden leave then I don’t think that they’d have a legal leg to stand on

The fact that you won’t be customer facing is key here, make sure your new employer knows about the clause and ask them to support you in this and then crack on!

In effect you probably can - especially if you don't take any business with you when you leave. Don't use your work account to publicise to clients that you are leaving for a new company and give follow on contacts etc.

Is it likely that your current employers would pay to enforce the clause, especially if you aren't causing them detriment?

I would take legal advice from a reputable employment solicitor.

Depends entirely on the terms of 1) your employment contract & scope of the non-compete & 2) any agreement made when you left (i.e settlement agreement etc).

I've seen many a non-compete successfully enforced so I'd suggest you take advice from an employment lawyer before making a decision.

I’d give ACAS a call, send them your current contract job description and your new job description. They will be able to give you a legal opinion on whether the noncompete clause applies to your specific situation.

I thought non compete clauses referred to you setting up your own company and approaching their clients.

The central question is whether the clause is reasonable, not whether it is customer facing. In general, a restriction lasting more than 6 months is not reasonable unless longer is normal in your industry or job title. It is also not reasonable if it means you can't find a job at all.

If you want proper advice, you will have to consult a lawyer. Alternatively, you could try to persuade your old employer to ignore the clause. After all, if they want to enforce it they will have to go to court and prove that the restriction is reasonable, which will be time consuming and may be expensive. So they may be willing to compromise.

The only noncompete I’ve ever seen in Forster around contacting clients, you can’t stop somebody working for a competitor.

*enforced

This is all really useful, thank you!!

My old employer were reasonable when I left and although I exited because of the unreasonable workload we remain on good terms (no settlement agreement etc). I've booked time with the HR head tomorrow to discuss and am hopeful they'll be agreeable as I won't be soliciting clients, so it'd be impossible for them to prove any kind of loss of business. If this doesn't work I'll try ACAS.

I am not a lawyer
I was recently approached by a company that was sort of a competitor to the company i was working for. If you imagine my employer only did A but the new company did ABCDE. I met with them but they said that before they made me an offer they wanted to see if I had a non compete in my contract. I queried it as I had heard these clauses weren’t enforceable but they insisted as they have recently enforced one successfully.
As it turned out there was one but there was a mistake in it that meant it didn’t apply to me and the new company (geographical) but I decided not to join the new company anyway.
So as I said I’m not a lawyer but that’s at least 1 case where one was apparently enforced

It depends on how exactly the clause is phrased and also perhaps on if you have a case for constructive dismissal.

You need to ask an employment lawyer

Whether they are enforced or not can depend on a lot of things. If you take clients with you, your current employer might well proceed with this. If it’s just a job, then they probably won’t due to cost. Some people would never move within an industry if these were enforced!

My DH successfully argued that former employees, who set up a rival company 20 miles away, shouldn’t put his company’s projects and clients on their web site. The clients were still with DH. And continued to be.
A solicitor’s letter threatening action had the desired effect: and they would have taken it.

So I would say circumstances are everything and frankly how much you know and how valuable you are to your current company do matter when they consider what to do. However restricting trade for a year is draconian so I would take advice from an employment law specialist but I don’t think it’s enforceable. It’s too long and too restrictive and therefore not reasonable.