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0 pointsralferoo1y ago0 comments

> But you can be forced to work through notice period?

No, they can't force you to work per se, but you could (in principle) be sued for breach of contract if you don't serve your notice period.

Most employers are fairly pragmatic in the UK. If the employee requests a shorter notice period at resignation time, and they're not actually on the critical path for something, most employers will agree. If the employee doesn't request a shorter notice period, many companies will stipulate that all unused holiday allowance must be taken at the end of the notice period - so the pay period is exactly the notice period from resignation, but the employee finishes early.

> Think of a non-compete as a 6-12 months notice period when you don't have to work

That's fine if you're on paid gardening leave. If you're not being paid, they have no right to dictate whether, or for who, you can work.

> (and can actually work for a whole bunch of different jobs, just not for the competitors).

Typically in the UK, the provisions of gardening leave explicitly state that you cannot undertake any paid work. You can study, you can do DIY, you can do garden work (hence the name), even do voluntary work, but you can't take on any other paid work.

> Consider a sales manager going to a competitor with the knowledge of prices for the top 10 customers.

Typically, if the employee took commercially sensitive customer data (and that includes names, position, phone, email address), then they could be sued for breach of contract. It doesn't matter if they copied the data via USB stick, printed it out or memorised it - they're still breaking the non-disclosure agreements they'd have signed.

I should probably clarify that there are non-compete agreements in the UK, but typically they're not enforceable and the real reason they're there is to scare the employee. They're not part of employment law, and so it would be deemed to be a normal contract that would be tested in court based on reasonableness, and in general an employee's right to work would override any restriction in a previous contract. There's actually consideration going on right now that recognises that non-competes exist and to restrict the scope of them. To quote the document [1] that describes the status quo:

> There is no provision in the UK employment statutory framework for non-compete clauses, including in Northern Ireland where employment law is devolved. As such there is no statutory definition. However, non-compete clauses are subject to the common law principle of “restraint of trade”. The principle provides that a worker should be free to follow his trade and use his skills without undue interference, thereby rendering a contractual term (such as a non-compete clause) purporting to restrict that worker's freedom to work for others or carry out his trade or business void unless it is: (a) designed to protect legitimate business interests; and (b) no wider than reasonably necessary.

> Consequently, even where non-compete clauses are found in employment contracts, they may not necessarily be enforceable, unless a court considers that the non-compete clause is to protect a “legitimate business interest” and is no wider than reasonably necessary.

> Simply proving that the employer will suffer from “more competition” is not counted as a legitimate business interest. In broad terms, the courts have recognised that a legitimate business interest may include protecting trade connections (with customers, clients or suppliers) and, more generally, goodwill; trade secrets and other confidential information; and maintaining stability of the workforce.

[1] https://assets.publishing.service.gov.uk/media/5a7f68b440f0b...

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pandaman1y ago· 2 in thread

So it appears the US non-competes are more relaxed than UK ones? In the US non-competes are limited to the actual competition though the pay may or may not be reduced if you work.

>Typically, if the employee took commercially sensitive customer data (and that includes names, position, phone, email address), then they could be sued for breach of contract. It doesn't matter if they copied the data via USB stick, printed it out or memorised it - they're still breaking the non-disclosure agreements they'd have signed.

I don't know what kind of NDAs people sign in UK, but in the US NDAs have defined scope and in this case, since you have not revealed any protected information, there is no grounds for an NDA breach. If the UK NDAs punish you for using the knowledge you obtained, then it sounds like a unpaid broad non-compete without a term to me.

ralferooOP1y ago

I shouldn't have mentioned NDAs there to relate to customer lists, it got left in that paragraph after I trimmed the comment down a lot. Taking customer data would be considered as a form of corporate espionage.

There are so many different types of "knowledge you obtained", there's no one size fits all answer. If it's generic training, no issue. If it's learning an industry standard practice, no issue. If it's years of solving problems, and having an intuition about solving a new, unrelated problem, no issue. If it's taking a list of customers and contact details, that's commercially sensitive data and a big issue. If you were personal friends with say 5 of the 20 customers, and could show you regularly met outside of a work context then you could arguably show that you hadn't stolen commercial data, you'd just contacted old friends. You might be opening yourself up to undeclared conflict of interest problems though. If through your work you knew of a secret process that was better than the rest of the industry and provided a competitive advantage, and then the new employer you left with also started that technique, that's a big issue and you'd have a real job to prove you weren't stealing secrets. If some technique had already been made public, e.g. by a patent, and your experience allowed someone to replicate the method in the patent, then you'd probably be OK, but then opening up the new employer to a patent infringement case. If it's a non-patented process improvement to a well known process, then probably fine. If you were a high level manager for e.g. Intel and moved to an unrelated tech company, no issue. If you moved to another chip manufacturer, it'd be very hard to prove that you didn't ever make any decisions based on the commercially sensitive information you learned at the previous company.

Maybe your new employer might want you to take gardening leave in many cases to protect them from liability of claims for corporate espionage. Alternatively, it might be prudent for the employee to make sure he works on projects at the new company that don't relate to their old work.

But essentially, it all boils down to how what the commercially sensitive material is and much damage might be caused by that being given to a competitor. This is where it's back to NDA territory. If you know any company information that's not public knowledge, then there isn't a term limit for when you're allowed to talk about it. Obviously, the longer it's been, the less relevant it's going to be commercially sensitive, and so the less likely you'd be sued for divulging trade secrets, but it totally depends on what that situation is. I also don't think the situation would be wildly different compared to the US. I'm pretty sure Coca Cola would sue someone who knew the recipe for Coke and decided to leak it, and they'd probably win regardless of when they left the company, because maintaining that secret is still critical to their ongoing business.

pandaman1y ago

>Taking customer data would be considered as a form of corporate espionage

Again, the same point: if you left the job where you used customer data then how do you deal with that data in your memory? Either you don't give any reason to believe you used it, least you're getting charged with espionage and this would include not working for the competition, effective putting you under indefinite unpaid non-compete. Or you don't perform your job duties, and this gives no reason for someone to pay you.

If it's really like this in UK, I can see how you can think non-competes are not needed. I'd rather have an American non-compete where I get money and a defined term though.

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