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Restrictive Covenant

Hello,

I am an account manger involved in the tendering of marketing services and print work. I do this for company A.

The boss of the account I run has decided to move the business from my current employer (company A), and placed the business with Company B.

Company B has offered me a job, which I want to take and I have hence handed in my notice.

My currently employer has put me on gardening leave and is saying, they will enforce my restrictive covanants which say "I cannot solicit away or accept orders from any of my associates for a period of 6 months after leaving the business".

I have not solicited away the business, it just moved and then I found out... and I will certainly not go after any of their other clients.

Company B are telling me not to worry too much, as they feel they would be unenforceable in this instance as the business has gone, therefor there is no loss of earning for Company A and stopping me working on the account would be "unreasonable".
They feel they are annoyed (understandably) and are just writing me scary solicitors letters etc to worry me.

Could anyone offer an opinion / some advice please?

I assume at worst I can still take the job with company B - and just not work with on the account I currently work on for 6 months? They cant stop me taking the job all together can they?

Its all a bit worrying and sadly will spoil my Christmas. :-(

Thanks in advance..

Happy Christmas all.
«13

Comments

  • SarEl
    SarEl Posts: 5,683 Forumite
    Company B are lawyers? Or printers?

    It would be my view that they are not spending money on solicitors to just write you scary letters. I thinh this clause is abolutely enforceable and very clear. They can't stop you taking the job no, but they can sue you if you stray over what is a very fine line. It is not just this account you cannot work on - it is any work which may involve soliciting busnuess from their client group. The worry is - does company B actually still want to employ you under those terms. It is all very well them telling you to ignore it - if your former employer is not bluffing, and they very well may not be, are they prepared to foot your legal bill to defend this claim, and will you still have a job with them if you are not able to deliver what they almost certainly want - knowledge of your former employers client base and business.
  • dacouch
    dacouch Posts: 21,636 Forumite
    Part of the Furniture 10,000 Posts Name Dropper
    SarEl do you deal with your clients with the same frankness, I do hope so as it's exactly how I would want my barrister to be?
  • dacouch wrote: »
    SarEl do you deal with your clients with the same frankness, I do hope so as it's exactly how I would want my barrister to be?

    I have a vision of SarEl being like that divorce lawyer off Cold Feet.....
    2014 Target;
    To overpay CC by £1,000.
    Overpayment to date : £310

    2nd Purse Challenge:
    £15.88 saved to date
  • dacouch
    dacouch Posts: 21,636 Forumite
    Part of the Furniture 10,000 Posts Name Dropper
    I have a vision of SarEl being like that divorce lawyer off Cold Feet.....

    I think she has glasses and they play a great part of her addresses to court...
  • Company B are printers.

    Understood.. Company B are aware and wont put me in a position to get into trouble. If legal advice is such, I will just have to stear well clear of anything related to my old job.

    What I dont really get is what they could sue me for? The customer has gone... what are company A actually losing?
    If anything I am doing them a favour saving them having to make me redundant / find me something to do.
    Unfortunately there is a wider picture here where they have fallen out with a director who may well have solicited this business away.... I am caught up in the cross fire a bit I think.

    If I was sued and lost - what am i liable for? Any earnings on that account for the 6 month period?
  • just finally.

    My restriction say I cant "accept or solicit away orders".

    Whats the situation with just working on the account in a project overview management capacity and keeping at arms length - Therefore not actually accepting any orders?
  • SarEl
    SarEl Posts: 5,683 Forumite
    dacouch wrote: »
    SarEl do you deal with your clients with the same frankness, I do hope so as it's exactly how I would want my barrister to be?

    Not really working now, but yes.
    dacouch wrote: »
    I think she has glasses and they play a great part of her addresses to court...

    I'm afraid not. Contacts.
    Mgreen17 wrote: »
    Company B are printers.

    Understood.. Company B are aware and wont put me in a position to get into trouble. If legal advice is such, I will just have to stear well clear of anything related to my old job.

    What I dont really get is what they could sue me for? The customer has gone... what are company A actually losing?
    If anything I am doing them a favour saving them having to make me redundant / find me something to do.
    Unfortunately there is a wider picture here where they have fallen out with a director who may well have solicited this business away.... I am caught up in the cross fire a bit I think.

    If I was sued and lost - what am i liable for? Any earnings on that account for the 6 month period?

    I am afraid that the wider picture isn't relevant - you have agreed this covenant, and in this case it appears to have been relatively well drafted which indicates that they knew what they were doing.

    If you are successfully sued you would be liable for any loss of business - not just on this account but on any account / work on which it is found that you have broken the term - and all their legal costs.
    Mgreen17 wrote: »
    just finally.

    My restriction say I cant "accept or solicit away orders".

    Whats the situation with just working on the account in a project overview management capacity and keeping at arms length - Therefore not actually accepting any orders?

    Soliciting covers a great many things - including "orchestrating". The only really safe thing to do is to stay away from your former employers business and clients.

    Many people think that these covenenats are unenforceable - and many are. But it is highly unlikely that this one would be one of them. It is specific in its terms and reasonably yime limited - it does not seek to prevent you working, but to prevent you from undermining the business of your former employer. Nobody can tell you with absolute certainty that these letters are a bluff - but I can tell you that they re unlikely to be because most people simply don't start paying lawyers to write letters for the fun of it, or if they have no intention of making good on anything in them.

    And you must be careful about what can be construed from your actions - the law is not always about what has happened but what can be shown to have happened. The two are not always the same. People have been found guilty before now only to be shown to be innocent years later! In your case there won't be a years later though - whatever was found now would stand. Look at this from an objective viewpoint. Company A lose the client, company B gain the client, and suddenly you get a job offer from company B...There are many possible scenarios in which this could happen - in some of those scenarios you don't look pure as the driven snow! You need to make sure that your dealings are squeaky clean an in accordance with your agreement. I would advise erring on the side of caution. Six months isn't actually all that long if Company B recruited your for your skills, experience and sparkling personality. My concern here is that if they are telling you to ignore the covenant, whether they will be happy for you to play it strictly by the book over those six months.
  • I would look carefully at the reasons behind the transfer of the contract and how this job offer came about. (Did they approach you? )

    did you discuss this covenent with B early

    if as you suspect there is someone else involved they could drag you in,

    The key will be will B back your defence try asking them for legal help now.

    Is this the only account you work on.

    How did A find out you were going to B.
  • B approached me.
    It may be my current employeer thinks I orchestrated it. But I didn't! Promise!

    I told A I was going to work for B, perhaps naively. Some people have said I should have just handed in my notice and kept my mouth shut about where I was going.

    B was aware of my covanant early.
    If legal advice is to just play it very safe I will do that and stay well away from the client in question.
    I CERTAINLY will not and have not approached any of there other clients, or accounts I work on.

    Hmm.

    I have had two employment solicitors read the covent now.. One says No way enforceable. One says perhaps enforceable.

    My old boss is frankly up to his neck in it. I am just wanted to stay out of things as much as possible. After all I was just offered a better job than the one I have got and want to take it.

    Thanks for the advice all.
  • dacouch
    dacouch Posts: 21,636 Forumite
    Part of the Furniture 10,000 Posts Name Dropper
    Mgreen17 wrote: »
    I have had two employment solicitors read the covent now.. One says No way enforceable. One says perhaps enforceable.

    As SarEl will confirm, different solicitors / barristers will interpret contracts in different ways as will judges which is what keeps SarEL et al in business.

    You also need to remember that a solicitor will receive their fees from you whether you win or lose
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