Employment Law-Non-Solicitation and Restraint Covenants and Covenant Not to Compete

No Chocolate

Hi guys, 

I'd like to consult some questions about an employment contract of 'Non-Solicitation and Restraint Covenants' and 'Covenant Not to Compete'.

My questions are mainly relevant to clauses 23.2， 24.1(a) and 24.4.I signed the employment contract as a salesperson with 6 month probation in a company last August, then I had done the job from 23rd of August 2021 to 4th of March 2022. There is no Garden Leave and any extra payment after I quitted the sales job. Recently I got some job offers, two of them that interested me. First one is an account manager, second one is a Marketer. But both offers from the Company which bit compete with my previous work place. So I'm not sure what the meaning of clauses '23 Covenant Not to Compete' and '24 Non-Solicitation and Restraint Covenants', also are those clauses affecting me to accept the job offers in this condition. 

If you can give me some professional advice please let me know. Many thanks.

" 23 Covenant Not to Compete

23.1 You agree that at no time during the term of your employment with the Company will you engage in any business activity which is competitive with the Company nor work for any company which competes with the Company.

23.2 For a period of one (1) year immediately following the termination of your employment, you will not, for yourself or on behalf of any other person or business enterprise, engage in any business activity which competes with the Company of the facility in which you were employed. 

24 Non-Solicitation and Restraint Covenants

24.1 The Employee will not for the period of 12 months immediately after the Termination Date whether as principal or agent, and whether alone or jointly with, or as a director, manager, partner, shareholder, employee or consultant of any other person, directly or indirectly:

(a) negotiate with, solicit business from or endeavour to entice away from the Company the business of any person, firm, company or organisation who or which to their knowledge is or was a customer, or client (or who had regular business dealings with the Company) during the period of 12 months immediately preceding the Termination Date and with whom he had direct dealings or personal contact in the normal course of their employment during that period, so as to harm the goodwill or otherwise damage the business of the Company provided that this restriction will be limited to activities by the Employee which will involve offering or providing services similar to those which she will have provided during the Employment. For the avoidance of doubt, for the purpose of this sub-clause, any person, firm or company which has been an investor in any funds which the Company has managed or advised or any investor who has entered into managed account arrangements where the Company has acted as investment manager or an investment adviser shall constitute a client or customer;

(b) interfere with, solicit or endeavour to entice away from the Company any person who to their knowledge is and was, at the Termination Date, or within the period of 12 months immediately preceding that date had been an Employee of the Company and with whom they had personal dealings in the course of their employment during that period.

24.2 For the avoidance of doubt, none of the restrictions contained in this clause shall prohibit any activities by you which are not in direct or indirect competition with any business being carried on by the Company at the date you cease to be employed under this Agreement.

24.3 The Employee shall not during the Employment or at any time thereafter make or authorise any disparaging remarks about the Company or any of its shareholders, employees, directors and other offices. 

24.4 The Employee agrees that, having regard to all the circumstances, the restrictions contained in this clause are reasonable and necessary for the protection of the Company and that they do not bear harshly upon them and the parties agree that:

(a) each restriction shall be read and construed independently of the other restrictions so that if one or more are found to be void or unenforceable as an unreasonable restraint of trade or for any other reason the remaining restrictions shall not be affected;

and (b) If any restriction is found to be void but would be valid and enforceable if some part of it were deleted, that restriction shall apply with such deletion as may be necessary to make it valid and enforceable."

dennyk

You should talk with a solicitor for advice on this matter. "Non-compete" and non-solicitation agreements can be enforceable here, but the courts don't necessarily look kindly on them if they are overly broad or if there isn't a genuine need for such a restriction to protect your employer's legitimate business interests. All of the factors involved in this case (things like the nature of your work, how long you were employed with them, what confidential information you had access to, and the exact nature of a potential new employer's business and the work you would be doing for them in the prospective role in question) would need to be examined in detail to judge how likely it is that your non-compete term would be enforceable.

In general, non-solicitation agreements tend to be more likely to be enforced than a broader non-compete agreement, as by their nature they are more restricted in the scope of activities they prohibit and the prohibited activities are more likely to fall under the "reasonable and justified" definition.

No Chocolate

https://www.boards.ie/discussion/comment/119189868#Comment_119189868

Thanks for your response Dennyk :)