An employment contract is one of the most important documents any of us will ever have to sign. However in the excitement of getting a job offer it is something that many job hunters approach with a cavalier attitude. As a result they never fully understand the restraints they are bound by.
“People tend to neglect to look at the small print of their contracts,” said Stuart. “One area which is often overlooked is restrictive covenants and non-compete clauses.”
There are several reasons why non-compete clauses don’t receive enough attention; the main one is a widespread viewpoint that they are actually unenforceable. This does not actually reflect the situation on the ground.
Businesses are increasingly taking a firm line in response to perceived breaches of non-compete clauses, as they try to protect their business interests.
“We had such a situation recently with a preferred candidate for a senior management post. Despite the candidate’s earlier assurances, closer examination of his employment contract revealed a 12-month non-compete clause. We consulted an expert in this field that we work with; he advised that the clause was sound and that litigation would likely follow if the restraint was ignored. As a result the job went to another candidate.”
In order to be enforceable, non-compete clauses and restrictive covenants have to be well drafted and be reasonable in their limitations. Companies are increasingly taking legal advice during the drafting of such contracts. This in turn means that they are having greater success in enforcing them.
Candidates should read their contracts carefully and should, if necessary, seek legal advice. While many candidates will be reluctant to be seen to be ‘making waves’ during the recruitment period, it is much better to sort out these issues at the front end.
Spindler can help point you in the right direction and put you in touch with professional advisors with the necessary expertise. “It is best to be straightforward with your potential employer,” says Stuart. “Explain that you never enter into any contractual agreement lightly and highlight the areas that you may have issues with. Most employers will consider this as an acceptable part of the negotiation process.”
