Non competition clause

[almosthome]

Hi,

I've come across a job almost identical to my current one that suits me better in terms of pay and hours so I'd like to apply. However in my contract there is a non competition clause - to not work for any competitor within a 25 mile radius of my normal place of work for 6 months from leaving my current role.

Both roles are 100% remote. My normal place of work is my home - in my contract this is down as Home, UK. Does this mean that I can't work for any competitor in the UK regardless of where they are, for 6 months, since the roles are entirely home based? Or would it be based on where the company office itself is?

I don't live within 25 miles of my company's office or the potential new company's office. They are more than 25 miles apart from each other.

Any employment lawyers out there who can advise?

Thanks

The answer is ‘it depends’. Courts are not keen on preventing people from making a living, but covenants can be enforceable subject to a variety of questions. Are you quite senior, and have access to info that could damage the business if it fell into the hands of a competitor. If not, then unlikely to be enforceable.if you’re at a grade where covenants are a thing the new employer can likely advise.

Would your moving there lead to your current employer losing revenue to the new company?

I'm not senior, pay is only a few thousand above minimum wage but it's a very niche business. I think the concern is that they invest time and resource in training people only for them to leave and use their skills elsewhere, which to be fair is exactly what I'd be doing.

It does seem a bit unfair though in the age of WFH that I'd not be able to take this job but someone working from the office would?

They are hard to enforce in practice as pp said, courts can’t prevent you from earning a living.

Being above minimum wage, and not senior would to me, imply you could be ok.

It’s fairly usual to share the clause contract details with the new employer. You may get them to protect you if litigation did happen.

The WFH thing throws up some new ifs & buts.

I can only go off my industry and the outcomes I've experienced over the years but the non compete clauses have been rarely pursued unless a compromise agreement was signed or a buy-out. The radius part though - if that applies to your home then they're saying you can't work for ANYONE else. Which seems unenforceable. Especially if that's your career. Hmmm...

And there needs to be a threat from it. "I don't want to pay you very much but equally dont want to replace you" won't be enough!

Sorry I am not able to advise you properly. My non-legal opinion is that the over 25 miles difference in office location, as you must have to go there for some things, even if occasionally, should be enough.

Good luck, hope it works out.

These clauses are in the main enforced only where it would be reasonable to do so, e.g. if you moved job taking your employers client base with you and it was obvious that would happen, from memory one of the cases has the example of a hairdressers - if a hairdresser moves to another shop on the same high street there is a risk that many of the clientele will switch and that will have a serious impact on the business. Your location clause is quite ambiguous as your contract base means you are a homeworker which as you say seems to make it so that you could never work for any competitor for six months. That is likely to be unenforceable.

As a PP suggested, see what your new company say about it. Will they offer to protect you if there is a dispute?

If your contract is 100% remote and your normal place of work is your home, the non-compete won’t be enforceable as it’ll be unreasonable - it prohibits you from working for any competitor remotely which won’t be proportionate or necessary to protect your current employer.

could you include the wording of what is actually prohibited pls? For example are you prohibited from working for a competitor in any capacity or specifically for what you actually do? How senior are you? What is the definition of competitor in your contract?

Non competes are hard (and expensive) to enforce and not usually worth the paper they are written on, particularly if you aren't senior/have confidential information on future business etc. The court would always look at it in terms of what is reasonable

Thanks all - I do think it would be unfair to enforce it on me as if I were to go to the office I would be over 100 miles away. It does seem to be a 'remote first' type of role, I haven't seen any similar ones that require you to be in the office. I've never been in, there isn't an office space for my team at all.

Competitor isn't defined in the contract itself, though they definitely would be classed as competitors - both companies have offices all over the world so don't operate in a specific region but do have clients with the same interests in the same regions.

@bunnypenny The clause applies to 'employment of any capacity in any business within 25 miles radius of your usual place of work where you would be acting in direct competition with that part of the business carried on at the date of termination of your employment'.

I'm entry level, part-time, fairly low earning and have been at the current company for less than a year. New role would be full time and a higher salary but only by a few thousand. Can't imagine the new place would entertain litigation protection for a role of this level, they'd just employ someone else if I asked (I haven't got the job yet I'm just hopeful!).

I worried about something like this once in my career but did it anyway - nothing happened. Agree with all the previous posters who say that these clauses are extremely difficult to enforce unless you are able to harm the previous company directly and significantly (by stealing all their client base or similar). They need to actually suffer a loss. Not just a loss of you as an employee but something far more substantial.