Ask the Expert: Better offer on the table, but locked into the job

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A. Non-compete clauses are quite common but whether they can be enforced depends on whether they are deemed to be reasonable or not.

To be reasonable a clause must protect the employer's legitimate buisiness interests and should restrain an employee only to such an extent as is adequate to protect those interests. Generally speaking that means excluding only a clearly defined activity, in a limited location and for a fixed time period - the wider ranging the clause, the less likely it is to be enforceable. The position of the employee is also relevant - a managing director can expect a greater degree of restraint than a middle manager, as the business is at greater risk if a more senior person defects.

You should consult a lawyer to see if there is any escape from the clause in your contract. If it is binding then you would be well advised either to stick to it or to attempt to get agreement from your employer for an earlier release. If you simply defy the clause, your current employer can take out an injunction to stop you working for the competitor and can then seek damages from that firm for enticing you to leave.

Finally - make sure you read your next employment contract carefully and don't sign anything that you don't want to be bound by.

Next week's question: I would like to make a team move with two of my colleagues in the structured products department. We have a pretty good idea of which institutions might be interested in our skills but are unsure how we should proceed. Should we contact other banks directly or go via an agency?

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