Restrictive Covenants
You now know some of your basic employment law, so you need to create a strategy to deal with the situation.
Ideally, consider the issue of restrictive covenants sooner rather than later. When you get that perfect job offer, the last thing you may want to think about is what happens if you chose to leave or you lose the job later. However, this is the best time to consider these employment law issues, as you have an employer who wants your services and you are in a good negotiating position. If you ignore it, you risk being hampered by restrictive covenants when it comes to moving on.
What is open to negotiation? This is an area where you need the considered advice of your headhunter together with assistance from an experienced employment lawyer to guide you through the maze. Preventative steps are more effective than the need for drastic action or frustration later.
For example, if you already have some clients you should definitely ensure those clients do not fall within your new employer's clauses. The time period during which the covenants can bite may also be an area for negotiations. As a rough rule of thumb, most clauses are enforced at 3-6months for junior employee and 6-12 months for senior employees and key executives. Many employers have now started to subtly extend these periods by increasing the period of notice required and/or putting in a period of 'gardening leave'. The courts have taken the attitude that there is no specific rule that time spent on gardening leave can be taken into account to decrease the period in which the clauses can bite. For example, if the garden leave is for a period of three months and the clauses are for a period of 6 month then you may effectively be unable to contact the ex-employer's clients for nine months.
You should think very hard before agreeing to a non compete clause, as it may mean you cannot work for a certain period of time. You can ask you new employer to either take it out or reduce the length of time it applies. You could ask for a ‘golden hello', so that you have a lump sum to cover this eventuality. You should certainly ensure it will not apply in the event of a redundancy scenario.