September is a time for new beginnings. And as the nights draw in and kids go back to school or university, you may have decided to take the plunge and change jobs. It should be an exciting time, but there can be some legal pitfalls, which can make the move more stressful than it needs to be. Here is a reminder of what you need to do to help the process go smoothly.
BACK TO BASICS
The first thing to do is to unearth your staff handbook and employment contract – and check if you ever signed the latter. If not, some important clauses which might affect what you can and cannot do in your new job might not apply. But assuming you did sign it, check what period of written notice you are required to give. If your employer puts you on gardening leave – that is, keeps you away from the office during your notice period – check whether the contract expressly allows this.
THROUGH THICK AND THIN
Before you leave, and during your notice period, remember that you must still be loyal to your existing employer: don’t jump the gun by doing things which help your new company, such as writing business plans or promoting it to clients and current colleagues.
Another common mistake is to take information away with you. Don’t email or download a copy of a customer contact list, for example – it’s very easy to detect if you do.
SAFETY IN NUMBERS
If you are leaving along with others in your team, the legal position is more complicated – especially if you are the team leader. Try to avoid being made the “recruiting sergeant”. While you don’t have to tell your employer that you are on the market and attending interviews, you may well be obliged to spill the beans on what you know about the plans of the others, once you and their intentions to leave have become settled. If this is the case, it’d be worth taking some advice, and your new employer will often provide it or meet the costs of doing so.
GIFT OF THE GAB
You also need to check whether your contract contains post-termination restrictions – sometimes called “restrictive covenants”. Unless they are included in the contract, they will not apply. Even if they are in your contract, they may not be enforceable if they are unnecessarily restrictive. But these days, most employers will have taken care to draft them correctly. If you are leaving to go to a competitor, don’t make the mistake of assuming that they will not be enforced.
The courts will usually enforce a claim which prevents you from “soliciting” (seeking to persuade) customers that you were in contact with in the recent past. They will also restrict you from having any business dealings with those customers for a short period. Usually, this will be a six month restriction (depending on the circumstances), but it could be a year – especially in industries where customers renew their contracts annually.
You’ll usually find the same situation when it comes to soliciting senior members of staff that you have worked with. It’s more difficult to predict whether the court would enforce a term which would prevent you joining a competitor altogether – but don’t rule out the possibility. Discuss it with your new employer, who can get it checked out.
What’s the worst that can happen? If you get it wrong, you could be sued for damages, or find yourself ordered by the court not to start your new job – but that really is the worst case scenario. Provided you plan ahead, get good advice and behave sensibly, all these legal risks should be perfectly manageable.