Non Compete

[Chester H]

My employment contract ended in January this year after I gave my employer notice. There is a restrictive covenant in the contract that says I cannot work with a client of my ex-employer for 6 months. I have asked my ex-employer for a list of their clients so I can avoid them but they have refused as they say this would create an administrative burden for them (they have c.200 clients and operate a CRM system, so it is not a burdensome task). They have asked instead that I tell them about every potential organisation I consider working with, and they will let me know if they are a client or not. I do not want to do this as it is a burden for me and we are now competitors so I risk them stepping in and taking these potential clients away from me. Where do we go from here? Is the restrictive covenant enforceable if my ex-employer does not identify their clients, or do I need to adhere to their tell/check proposal? I will be marketing my services widely, and could in theory work with anyone in the world.

[ULA]

You are clearly very aware that you have a 6 month restrictive covenant that is in force until some time in July. It sounds like you have set up in business which is in competition with your old employer and could potentially be in contravention of the restricitve covenant if you work with clients of your ex- employer.

I am not surprised that they are not wanting to provide you with a list of their clients as they would have a concern that even if you did not use it during the six months you might do after this time has expired.

Maybe given that you only have around 2 more months of the 6 months remaining, are there companies that you can target for your services that you know for sure are not clients of your ex-employer and you could focus your attention on these to start with?

[Chester H]

Thanks Ula. My non compete expired after 3 months, it is only the non solicitation of their existing clients and staff that runs for 6 months. I know maybe 20 of their clients (the one I worked with directly) but have no idea who the rest are, so whilst I can avoid the 20 I know about I have no idea who any other 180 are. The only way I can avoid hitting one of their clients who I do not know about is for them to either tell me who their clients are, for me to tell them who I am marketing to, or to ask every potential new client of mine if they've been in contract or done any business with my ex-employer in the last 12 months (the definition of a client in my contract). I'm leaning towards the latter. Would a statement from a company saying that they are not a client of my ex-employer be sufficient protection for me, even if they turned out to have been a client?

[ULA]

I think to safeguard your business interests in the same way as your ex-employer is doing then you should not be informing them of which companies you are marketing to.

I think at least until the 6 months of your non solicitation clause is in effect that your suggestion is potentially a good way foward. That way at least you are trying to safeguard not accidently continuing discussions with a a potential client who has done business with your ex-employer in the last 12 months of your employment with them.