Some restrictive agreements apply if you can prove that this is the case: some agreements contain a provision that the worker can obtain the agreement of the former employer before engaging in competitive activity. The usefulness of such a clause for an employer is debatable, since it is always open to the employer to waive an alleged offence. Such a clause may imply a clause that such consent is not unduly retained, which will impose an additional obstacle on the employer that must be removed. In most cases, it is difficult for an employer to prove that a contract that prevents you from working with a competitor up to 12 months after departure is appropriate. However, it still depends on the nature of your employer`s business, your position in the business, the geographical restrictions and also the legitimate business interest that your employer is trying to protect. In some cases, a 12-month non-competition clause is appropriate. It is more difficult to limit demand to potential customers. Such protection is generally only appropriate when a company can demonstrate that building a relationship with its potential customer is a lengthy process that represents a significant investment of time and money. The key to such a clause, which is respected, is to ensure that «potential customers» can be well defined and identified – how clients on a list of goals or with whom employees have made offers or have conducted concrete negotiations.
The High Court upheld a contract limiting relations with clients with whom the employer had negotiated in the 12 months prior to the termination of the employment relationship. Restrictive agreements most often fall into the following categories: it is a general principle of contract law that the employer, when terminating a person`s employment contract in violation of its terms – for example without notice – is free of all contractual conditions that must survive its termination, including after the termination of restrictive agreements. This is one of the attractions of a payment instead of a termination clause in the contract. In these circumstances, a summary termination of the employment relationship, if achieved by a termination payment, would not constitute a breach of contract and the restrictions remained in effect. In the case of a transfer of TUPE, all restrictive agreements are transferred to the new employer. Since, in some cases, the nature of the employer`s business may change dramatically after the transfer, this may affect the interpretation and applicability of the restrictive pact. For example, a confederation that might have been reasonable in a relatively small business may be considered unreasonable if that transaction is subsumed by a national or multinational company. In June 2017, the High Court upheld the restriction of competition and issued an injunction that limited the infringement. The worker appealed to the Court of Appeal and argued that the High Court had improperly constructed the non-competition clause contained in the contract. The employer argued that the High Court judge had correctly interpreted the contract and relied on another clause in the employment contract that prohibited the worker from holding or having shares in competitors during his employment, but which contained an exemption for minor participations.
The employer submitted that it would be unusually important for the non-competition clause to be less than all the holdings, as it would then be more restrictive than during employment. In addition, if this is not the case, the words «or interested» can be removed from the clause, so that there remains a valid alliance. Restrictive alliances are often incorporated into employment contracts, only to deter.