Advice on Restrictive Covenants in Contract

[Guest]

Hi,

Myself and a colleague have recently handed in our notice at our current marketing agency employer.
We are forming our own small business which will offer similar but a more refined service offering than our current employer.
They are a full service marketing agency with 25 staff, 1.4m turnover and offer video, design, digital, content and web design/dev all in house.
We will be just the 2 of us initially offering website design, dev, digital marketing and strategy.

Where the potential issues lay are that we both have different employment contracts, although both contain non-compete and non-solicitation clauses.
The non solicitation clause reads as follows
'For a period of twelve months after the termination of this contact, and for any cause whatsoever, the employee shall not solicit, approach or do business with any customers or clients of the employer, who have been customers or clients of the employer for two years preceding the termination of employment."

There are some customers who we anticipate may contact us directly for us to do business with them.
What i'd like to understand is:

- What classifies as soliciting? If they approach us directly is this ok? What proof do we need?
- Can my previous employer enforce the 'not do business' part of that wording?

The additional questions I then have are:

- My colleagues contract says he cannot compete for a period of 12 months after we leave. Can they stop us trading?
Surely this would be not allowing us to make a living?

- If they can stop us doing business with the customers, hypothetically, could those customer do business with an alternative business, who then sub-contract that work to us?
Therefore we wouldn't invoice the customer directly.


We are fully expecting our current employer to hit us with some legal wording or letters and we desperately need some guidance on this.
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[ULA]

Unfortunately the non-solicitation clause as you posted does mean that if a

customer or client contacts you directly and they then engage you there would be a potential problem for you under the "or do business" part of the clause. *

In your colleague's non-compete clause is there a geographic location that the 12 months is limited to or is it implied all of UK?

I think that if your employer works out that you are providing the work even via a sub-contract then they may raise an issue about it but I would have to research any case law to see if there have been any similar situations and what the outcome was.

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