Employment & HR Brought to you by Jaluch (DocsWizard)

Non solicitation clause

Discussion in 'Employment & HR' started by Richard Harrod, Jul 13, 2018.

  1. Richard Harrod

    Richard Harrod UKBF Newcomer Free Member

    3 0
    Hi, I work as a project manager in the property consultancy sector, at associate director level (non-shareholding). I am considering a new position and have been sent a draft contract with the following clause. I think that the 12 and 36 months are excessive (I would prefer 6 and 6, or 6 and 12 at a push). New company will have two directors, and admin person and me. I would appreciate any comments.

    “You agree that you shall not for a period of one year after termination of your employment supply, directly or indirectly, any goods or services to customers of the Employer with whom you had contact and to whom you provided services during the last 36 months prior to the termination of your employment, whether solicited by you or not . For the purposes of this clause, such a customer is defined as a Client of XXXXXX Project Consultancy Ltd or a person and / or Company with whom XXXXXX Project Consultancy Ltd has been actively discussing business opportunities.
    This is not intended to preclude you from working for an organisation which is already working for the same clients as Enborne Project Consultancy Ltd, it’s purpose is to prevent poaching of known Enborne Project Consultancy Ltd‘s business opportunities and Clients.”

    Many thanks.
     
    Posted: Jul 13, 2018 By: Richard Harrod Member since: Jul 13, 2018
    #1
  2. The Byre

    The Byre UKBF Ace Free Member

    6,976 2,713
    It's a bit rich, considering the directors are themselves employees of another company in the same field (though it looks as if this other company may be about to be dissolved and the leading shareholder is about to launch his own solo consultancy).

    I would quiz them on their relationship with their current employer and to what extent they are subject to similar restrictions! Make your decision based on their replies.
     
    Posted: Jul 14, 2018 By: The Byre Member since: Aug 13, 2013
    #2
  3. Awinner2

    Awinner2 UKBF Regular Free Member

    231 37
    Not a clause I would accept. Look elsewhere?
     
    Posted: Jul 15, 2018 at 5:43 PM By: Awinner2 Member since: Aug 4, 2017
    #3
  4. Richard Harrod

    Richard Harrod UKBF Newcomer Free Member

    3 0
    Thanks
    The two directors are actually my bosses now, but they are splitting away from the current company (which will dissolve) to set up their own consultancy, and they have offered me a position. I am thinking will as for the 12 months to be reduced to 6, and the 36 months to 12.
     
    Posted: Jul 15, 2018 at 9:37 PM By: Richard Harrod Member since: Jul 13, 2018
    #4
  5. Newchodge

    Newchodge UKBF Big Shot Free Member

    9,114 2,318
    You should check whether this situation is covered by TUPE. If it is you transfer to the new job without having to accept any change in your terms and conditions.
     
    Posted: Jul 16, 2018 at 8:32 AM By: Newchodge Member since: Nov 8, 2012
    #5
  6. Richard Harrod

    Richard Harrod UKBF Newcomer Free Member

    3 0
    Thanks. To be honest my current contract is very woolly so I would prefer to have something better in place, and in fairness the rest of my new contract is okay, just this non-solicitation clause - it is just trying to gauge how onerous it is as I have never been presented with one before. I can understand why they want it, but the durations of the restrictions seem OTT to me.
     
    Posted: Jul 16, 2018 at 9:04 AM By: Richard Harrod Member since: Jul 13, 2018
    #6
  7. Newchodge

    Newchodge UKBF Big Shot Free Member

    9,114 2,318
    That can be to your advantage. If it were ever to be invoked you could get a court to say it is invalid because it is too onerous.
     
    Posted: Jul 16, 2018 at 9:18 AM By: Newchodge Member since: Nov 8, 2012
    #7
  8. The Byre

    The Byre UKBF Ace Free Member

    6,976 2,713
    36 months is out of the ballpark and probably (health warning - outside my skill-set!) unenforceable.
     
    Posted: Jul 16, 2018 at 10:38 AM By: The Byre Member since: Aug 13, 2013
    #8