Post Termination Clauses - a different spin.

[Salvo776]

Hi,

So currently exiting from a company whereby I have a contract that has “post termination clauses” in place.

This has been put on this forum before but my question is slightly different and potentially “obvious”?

I have no restrictive clause as such that prevents me from joining a direct competition or starting my own venture however, there are a few clauses which state I cannot canvas, take on work or offer advice to any clients I dealt with 6 months prior to termination, for a period of six months after termination. There isn’t a distance set in these clauses and whether that means their too wide ranging is a different debate entirely.

My question is, understanding I have to comply to such clauses, which I’d intend to, if I set up a new venture, presumably my business partners would remain unaffected and could deal with said clients if they knew them previously also from a different previous employer who holds no PTC’s?

I hope that makes sense!

[theberenger]

How would you propose to prove, if required to do so by your former employer, that you played no part in either approaching or suggesting a company to your colleagues that you'd had previous involvement in?

If your former employer alleged that it was only through your prior involvement with them that you were aware of the company and their business needs, which you now wish to service, how could you refute that?

The PTC may only apply to you, but presumably it also applies in the case where you would offer up the name of a company or contact for a colleague to pursue?

[atticus]

You are precluded from soliciting or dealing with clients as set out in that clause. It could well be upheld if challenged. Geography is irrelevant - this is not about where you work but about who you approach for business or do business with.

Take great care not to do anything indirectly or "under the radar" that breaches the restrictions.

[Salvo776]

Thanks for replying!

So I guess, that also goes two ways? It’s I’m guessing going to be difficult to prove to a point of 100% but also how can anyone likewise be that certain that I have?

To clarify, the other business partners already have knowledge/contact, I don’t need to suggest anything.
They’re also not subject to the same employment contract/PTC’s as I am. So legally, how could that be an issue for contest?

[atticus]

To protect yourself, you and your colleagues should devise a verifiable scheme to ring-fence you from all communications and dealings with such customers for that 6 month period..

If your previous employer feels that there is a sufficiently large attack on its client base, then you may find yourself having to defend your position.

[Salvo776]

Thanks Atticus, yes I don’t know how verifiable it can be but it can certainly be documented and to be clear, I do intend on honouring those clauses. Maybe in this case, some common sense of stating to others “becareful which’s nests you throw stones at in the short term”.

[atticus]

I should just correct you on one thing. You have said

I'm guessing going to be difficult to prove to a point of 100%

The standard of proof in civil cases is "on the balance of probabilities": is what is being claimed more likely than not? So, if you must talk in percentage terms, a 51% likelihood is enough.