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  1. OUTSIDE EMPLOYMENT AND ACTIVITIES

During the period of your employment you shall devote the whole of your time and attention during ordinary business hours to your duties with the Company and shall not, without the prior consent in writing of the Company, be in any way engaged or concerned in any other trade or business either on your own account or with or on behalf of any other person.

Is this saying

  • no outside work during working hours
  • no outside work outside of working hours

I can read it both ways.

The former seems obvious, but sometimes contracts need to state the obvious.

If the latter, is this enforceable in UK law for a senior software developer accepting a permanent position?

I doubt that they could attempt to claim any income/IP from such work (as I believe they can in the USA), but what if the company was not requested to give permission?), but am not sure what exactly is being said here.

For someone who many not wish to notify the company of any hobby work which might turn into an income stream, is there any reason for concern?

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It means: no outside work inside or outside of working hours

Probably.

This is because, when interpreting a contract, the court assumes that everything in the contract has a purpose and isn't there just to fill space.

For the first interpretation you propose, if you comply with the first part of the clause "devote the whole of your time and attention during ordinary business hours to your duties" you have necessarily complied with the second part. This gives the second part "no work to do" (as the court puts it) and since it's there for a reason, that interpretation can't be right.

Therefore the second part extends the first part: work for us during working hours AND don't be "engaged or concerned in any other trade or business" at all times.

Is it enforceable?

Yes. Covenants on restraint of trade are unlawful unless they are reasonable to protect the employer's business.

The "without the prior consent in writing of the Company" makes the clause reasonable providing that the Company exercises their discretion reasonably.

Restricting a "senior software developer" from writing software for a potential competitor is always going to be reasonable. Preventing them tending a bar on a Saturday night or working as a voluntary treasurer for a kid's soccer club probably isn't - unless they can demonstrate that it will adversely affect your work (like you're doing it 30 hours per week).

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  • when interpreting a contract, the court assumes that everything in the contract has a purpose and isn't there just to fill space - how about to clarify? Is that a purpose? I can still read this 2 ways, but upvote & thanks for taking the time to answer Aug 6 at 11:40
  • As to your second point, I deliberately didn't raise it at first. The case in question (a friend of mine) would be someone working in the defence industry coding non-defence browser & smartphone apps. It's software, but no possibility of competition. I had thought to resolve the original question first before raising that. Aug 6 at 11:44

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