Non-compete clause - any HR or legal advisors that can help?

[Jobdilemmaz]

Hi, I work for a pretty niche industry and have worked for the same global company for 5 years. When I joined the company I signed a contract which had a non compete clause saying if I leave, I can't work for a company providing a similar product or service for 12 months. At the time it wasn't an issue but in those 5 years the landscape of the industry has very much changed.

I'm wondering if/how I can challenge this clause. The industry is so niche and my particular role makes it even more niche, to the point where this clause is pretty much ensuring I cannot get a new job.

This is all hypothetical at the moment as I haven't yet got a job offer, but I've had an initial interview with a similar industry company that I'd really love to work for and they have specifically asked if there is a non-compete clause to which I've had to say yes. This company is nowhere near global, it's much smaller, probably still considered a start up, but a really good opportunity. So if I was to be offered a role, I'm not sure how to proceed? Eg if I accept the role and then tell my existing HR, they might enforce the clause and I'd lose the job offer and then be in hot water with my current company as they'd know I'm wanting to leave, and probably end up being 'made redundant' in a few months.

I've called ACAS and they weren't much help, lots of generic info that I already knew from reading online.

Any advice please?

IANAL but my understanding is that such clauses can be hard to enforce and are very situation-dependent. If as you say it would effectively mean that you couldn't take any job in your current line of work then that sounds like restraint of trade which would render it unenforceable. The only way they could enforce it in any way is (I understand) to either sue you for compensation or seek an injunction, it's not like they can actually do anything to stop you accepting another offer.

If I were you I would speak to an employment lawyer to get their take on it as they will be able to advise on the specifics of your situation.

It would really be if your current company want to pursue this if you leave and if they the clause is valid - could they prove that it’s detrimental or a risk to them you going to the other company?
I understand the hesitance but speaking to your current company could help you understand if they would seek to take further action and if it would even be considered a conflict.
People move and change jobs, most organisations with their salt would want an amicable end.

They can’t make you redundant for asking and if they would illegally apply redundancy when someone queries this clause… they sound pretty awful!

My ExH worked in an industry where this was fairly standard.

He consulted a lawyer and the advice was that non compete clauses are very hard to enforce because they essentially stop you getting the job you are trained for and do.

A lot would depend on where you are going and under what circumstances.

I am not an HR or legal professional, but have had a very similar clause. I took legal advice and was told that they are very hard to enforce as you can’t prevent someone earning a living. However if you have a v specific role within the business - sales where you have prospect info it can be more challenging.
I was aware of new client facing/sales colleagues that received one legal letter from their old employer reminding them of specific aspects of their non compete but it went no further.

A restriction of more than 6 months is unlikely to be enforceable unless it is normal for your job title or industry.

It is also unlikely to be enforceable if it means you can't find another job at all.

If you are not in a position where your taking the new job would result in them losing money, e.g. because you took some customers with you, it is unlikely to be enforceable.

You won't get a definitive answer on here. However, it sounds like the clause as written may be unreasonable and hence unenforceable.

You could, of course, try to negotiate a shorter period with your current employer. Given that enforcing the restriction would involve going to court which would be time consuming and expensive even if they won, they may willing to compromise.

Is your job involved with commercially sensitive/valuable/critical aspects of the company that you could port to a competitor?