quinnj3
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 posted on 5/12/11 at 12:27 PM |
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New job offer but is it legal!
Hi Guys,
I got a phone call, from a customer of the company that I currently work for, on friday asking me if I wanted to work for them. It is more money,
less hours and better T&C's. I had expressed interest a few months back but only in conversation with the electrical manager. There have
been a number of people that applied for the job and out of that there are a couple that would be suitable with further training. Even though I
didn't apply, I have been given first refusal as the job is in line with what I currently do and I have experience of their equipment. What I
want to know is are there any implications in accepting the job offer?
hope this makes sense
Jonny
my aim is to build my own locost wether it takes me a week or 10 years to get started, i'm sure i will sometime
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Autosri
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| posted on 5/12/11 at 12:32 PM |
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In my contract it states if I leave I'm not alowed to do work for any of my current employers customers for 6 months but it doesn't state
I'm not allowed to work for them
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edsco
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| posted on 5/12/11 at 12:45 PM |
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Assuming you wouldn't be in breach of any contract ties in your current contract and you abide by the notice period of your current
contract....if you choose to accept the role and you get it, you as an employee have nothing to worry about in terms of legalities. Whilst a job
usually has to be advertised internally first for specified period of time and then opened up to the external market, whether the potential employer
sticks to those rules or not is not your issue to worry about....its theirs. If they get pulled up on it, its not your concern.
That is my understanding for what it is worth.
edsco
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mad4x4
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| posted on 5/12/11 at 12:46 PM |
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Depends on your contract of employment but on the other hand if it went to court and you could only work as a 2" hole filler (speciallist in
that field) and weren't allowed to work of any 2" hole companies then your old employer would be breaking a law as he would be stopping
you from working... very grey area.
Scot's do it better in Kilts.
MK INDY's Don't Self Centre Regardless of MK Setting !
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bi22le
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| posted on 5/12/11 at 12:46 PM |
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My contract says along the same lines as above. they also keep all Intel rights so i can't share company design secrets and things.
sensible business really.
Check your contract. if its not mentioned your fine.
Regarding you excepting. its the companies responsibility to employ and reject lawfully. not yours to except.
Well done. you must show value to your customers. its always a good feeling being head hunted.
Track days ARE the best thing since sliced bread, until I get a supercharger that is!
Please read my ring story:
http://www.locostbuilders.co.uk/forum/13/viewthread.php?tid=139152&page=1
Me doing a sub 56sec lap around Brands Indy. I need a geo set up! http://www.youtube.com/watch?v=EHksfvIGB3I
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Tiger Super Six
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| posted on 5/12/11 at 12:50 PM |
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Restrictions can only really be applied to key and senior personnel as well - if you are one of a few people doing your job they can't restrict
your working options.
Mark
Tiger Avon
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Theshed
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| posted on 5/12/11 at 01:23 PM |
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Yes they can! Check your contract - if silent then fine
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jossey
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| posted on 5/12/11 at 01:56 PM |
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even if it says your cant work for any customers or competitors its very hard to enforce as they cant stop you working...
Thanks
David Johnson
Building my tiger avon slowly but surely.
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Theshed
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| posted on 5/12/11 at 02:05 PM |
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Yes they can.........Trust me!
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hughpinder
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| posted on 5/12/11 at 02:22 PM |
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When I left my permenant job 20 years ago my contract had a clause which said I couldn't work for any company I had worked for while I was
employed there. Since that covered a large sector of my potential market, I payed for advice from a lawer, who said it would be classified as an
'onerous condition' and they had no tie that would stand up in court.
It would not have been legal for me to take copies of any work I did while there, but of course I can use the knowledge I gained to work for my new
employer. E.g If I wrote a piece of software to control a turbine, I could use what I know about turbines to write the code again, but if I stick a
copy on a memory stick and walk out of the door with it, I'm in trouble.
I'd get a copy of your contract and ask the guy you want to work for to get his HR people or lawyer to look at it(most decent sized companies
pay an annual fee to a lawyer for advice, so like to use it every now and again) , or if the company isn't big enough, perhaps citizens advice
can advise (or worst case: Go to a lawyer and ask for an opinion - probably £100+ for 2 minutes in his office I suspect but it could be an investment
in your future)
Best of luck
Hugh
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Alfa145
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| posted on 5/12/11 at 02:31 PM |
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The " Can't work for our customers/suppliers for 6 months" part has always confused me.
When you hand in your notice, you are effectivly saying I want to terminate my contract. Then when you leave the contract is null as you have
terminated it by leaving so how can they enforce a term listed in the now terminated contract?
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Ninehigh
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| posted on 5/12/11 at 04:11 PM |
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quote:
Originally posted by Alfa145
The " Can't work for our customers/suppliers for 6 months" part has always confused me.
When you hand in your notice, you are effectivly saying I want to terminate my contract. Then when you leave the contract is null as you have
terminated it by leaving so how can they enforce a term listed in the now terminated contract?
Exactly, swmbo's last contract stated that she couldn't work for any similar company for two years afterwards. The solicitor said
it's binding, right up until she leaves at which point the contract has ended. It's (from what I understand) little more than a legal
bluff
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Theshed
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| posted on 5/12/11 at 04:31 PM |
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Ok a longer answer. If a contract of employment is silent as to activities post termination then the only restrictions as to future conduct for an
ordinary employee will be (1) a requirement to give lawful notice (2) an implied obligation to return all property (3) a prohibition on exploiting any
confidential information amounting to a trade secret (this is a bit more complicated than it looks). It is unlawful to memorise say a customer list or
make a copy for the purpose of competing later. Electronic lists of contacts (SIM cards outlook etc) are the employer's property and must be
returned if required.
Where there are express provisions as to activities after the employment has ended then the fact that a person has given notice will not affect their
enforceability. If on the other hand the employer is in serious breach of contract that could release the employee of any further obligations at
all.
Restrictions that prevent an employee from freely plying their trade are usually referred to as Restrictive Covenants. It is widely believed that
these are all unenforceable. Nothing could be further from the truth. It is right that the starting point is that they are unenforceable. But that is
displaced if (1) they protect a legitimate interest of the employer (2) the clause is no wider than reasonably necessary to protect that interest and
(3) they are reasonable as between employer and employee.
"competition" is not a legitimate interest but customer connections certainly are. Where the employer sells services to clients then a
clause preventing an employee from taking up work directly would protect the relationship with the client and so would protect a legitimate
interest.
In order to be no wider than reasonably necessary the duration of the clause would usually have to be justified by the time it would take to cement
the relationship with a new employee. A clause that tried to prevent an employee working with any customer including one that he had no dealings with
might well be wider than necessary as the employee is in no better position to exploit the relationship than a stranger (possibly explaining the
solicitor's advice referred to above).
Unless the clause prevents the employee from working AT ALL anywhere in the UK then the final test is usually not hard to satisfy.
So a clause that prevents a skilled employee from working for a client with whom he has had face to face dealings for a period of say 6 months is very
likely to be enforceable.
These clauses are enforced by seeking an injunction. Injunctions are usually sought pending a trial. Often by the time the trial takes place they have
run out. The costs associated with such applications are invariably 5 figure sums. Last one I was personally involved with involved £200,000 of costs
by the second hearing (three parties)!
So the long and the short of it is - (1) if no clauses then subject to not swiping things you are free to set up in competition (2) if there are
restrictive covenants then they may well be enforceable ....it all depends.
The new employer is usually joined in to proceedings as where a party induces a breach of contract they are liable for any loss and damage. This does
not usually go down too well with a new employer......
So if the contract contains restrictive covenants then perhaps it is wise to seek legal advice (no self interest here then!)
[Edited on 5/12/11 by Theshed]
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big-vee-twin
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| posted on 5/12/11 at 06:10 PM |
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Having been caught up in a legal battle surrounding this topic I can concur with TheShed. I can also confirm 6 months is thought to be reasonable any
longer not so. My restrictive covenants were for 12 months so seen as unfair.
I went through a 3 month battle using lawyers to defend myself from a previous employer when I set my business up and went on my own. After three
months and a lot of money spent both sides agreed to disagree and went their separate ways.
Unfortunately this law is not very clear, I ended up spending a lot of money on the best employment law solicitor I could find.
Duratec Engine is fitted, MS2 Extra V3 is assembled and tested, engine running, car now built. IVA passed 26/02/2016
http://www.triangleltd.com
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quinnj3
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| posted on 5/12/11 at 06:20 PM |
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Thats a lot of replies!
I don't think there would be any conflicting interests as I wouldn't be in competition with or taking work from my employer.
Anyway I had a chat with him this afternoon and he basically gave me a speel about not wanting to let me to go etc etc and gave me a 4K pay rise plus
a van to travel to and from my home to the office.   .
I'm happy were I work anyway, the extra money in the other job would be the only reason I'd leave but that is no longer the case.
thanks for the replies
Jonny
my aim is to build my own locost wether it takes me a week or 10 years to get started, i'm sure i will sometime
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big-vee-twin
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| posted on 5/12/11 at 06:24 PM |
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Nice one that's the best outcome I reckon
Duratec Engine is fitted, MS2 Extra V3 is assembled and tested, engine running, car now built. IVA passed 26/02/2016
http://www.triangleltd.com
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dhutch
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| posted on 5/12/11 at 08:48 PM |
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quote:
Originally posted by big-vee-twin
Nice one that's the best outcome I reckon
Sounds good to me too!
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