Help please can i be sued for this?

[Marketeer]

Appreciate urgent advice on this situation - thank you thank you thank you in advance and sorry for how long it is - put in as MUCH detail as possible

I work as an account manager at a marketing agency specialising in a particular industry. I handed in my notice beginning of June as was no longer enjoying it.
I have 3-months notice but they only made me work 6 weeks of it.

Two week into my notice, I told my clients as was handing over the accounts to the new managers. A week after that, one of my clients asked if I'd found a job yet as they were advertising for a Marketing Manager role if I was interested. I was interested as I had enjoyed working with the client.

I had an interview, and in that pointed out the issue with their service agreement and my contract and said I wanted to be transparent with my company if I was offered the job. The MSA says that they cannot solicit an employee of the agency (they approached me after I'd handed my notice in) and my contract says I cannot work for a client (so it's black and white in that respect).

I was offered the job, and as soon as I received the formal offer (last Wed), I told HR. The HR manager was really happy for me and said she'd speak to the MD as they'd not been in this situation before (though a colleague left and went to a client a few weeks ago - my company didn't know). To note, this client, albeit all clients should be important, is a lower income client for the company on a project that's coming to an end, not on a retainer basis). She reassured me the company was trying to make it work and happen for me. I honestly and naively thought the company would ne happy for me and see it as an opportunity to grow the client with me.

Wed eve, I was told that my agency were consulting solicitors, that the MD had rang the client's MD without consulting me first. I was told to hang fire - at this point, I became worried.

Friday, I was told that my company had sent a letter to the client outlining terms to get out of their service agreement. The MD also told me they were not pursuing me for legal action - so I thought, all the client needed to do was approve those terms then that was that. I was also told I'd really f***** up by doing this and ended up in tears to the MD who just laid into me.

Sunday, the MD of my company then LinkedIn messaged me to say that they'd spoken to the board and they might pursue me saying there is a sense that we should leverage your employment contract terms should you accept the offer. That means we may take legal action against you.

I then contacted the client that wants to employ me outlining I couldn't take the job as couldn't risk legal action.

They said that they were paying for the rest of the contract up front and agreeing to the other terms so there would be no other loss of earnings for the company as they weren't going to work with them going forward (as apparently the MD was not professional on the phone at all telling them they weren't a priority for them anyway - and told the client I was leaving for performance issues)...

The other clause was that my company did not want me as their primary contact (I genuinely don't know what I've done to deserve them saying that - I saw it as an opportunity to increase work with my agency - now I do not at all as have been treated horrendously).

I've asked the company to see if they can write me into the get out clause to protect me from my agency coming after me. They're going to try but aren't sure if my current company will accept it.

I've contacted ACAS and got advice, however, a few questions...
1) Can someone stop you from going somewhere even if it's in the contract
2) If loss of earnings are being covered by the client, can they come after them for me?
3) Bar the outstanding fee on their current project, how can my current company predict future loss of earnings? I don't see how at all?
4) Would this hold up in court?

Really see this role as an AMAZING opportunity for me and don't want to miss out if my company cannot take legal action against me. Any advice greatly appreciated! THANK YOU ALL!

[ULA]

It would be very helpful if you could post up - anonymised - the relevant terms in your contract for us to be able to review before we can provide any advice.

[Marketeer]

My contract is:
19. RESTRICTIVE COVENANTS: 19.1 The following words have the following meanings:
19.1.1‘Capacity’ means as agent, consultant, director, employee, worker, owner, partner or shareholder;
19.1.2‘Company Goods’ means any product, computer code, website, programs, images, designs researched into, designed, developed, manufactured, distributed, sold or supplied by the Company with which your duties were concerned or for which you were responsible during the 12 months immediately preceding the Termination Date;
19.1.3‘Company Services’ means any services (including, but not limited to, technical and product support, technical advice, customer services and project management) supplied by the Company with which your duties were concerned or for which you were responsible during the 12 months immediately preceding the Termination Date;
19.1.4 ‘Confidential Information’ has the meaning ascribed to it in the Confidentiality section.
19.1.5‘Client’ means any person, firm, company or other organisation whatsoever to whom or which the Company distributed, sold or supplied Company Goods or Company Services during the 12 months immediately preceding the Termination Date and with whom or which, during such period: (i) you had personal dealings in the course of your employment; or (ii) any employee who was under your direct or indirect supervision, had personal dealings in the course of their employment;
19.1.6‘Prospective Client’ means any person, firm, company or other organisation whatsoever with whom or which the Company shall have had negotiations or discussions regarding the possible distribution, sale or supply of Company Goods or Company Services during the 12 months immediately preceding the Termination Date and with whom or which, during such period: DocuSign Envelope ID: XYZ (i) you shall have had personal dealings in the course of your employment by the Company; or (ii) any employee who was under your direct or indirect supervision shall have had personal dealings in the course of their employment by the Company; but in the case of a firm, company or other organisation, shall not include any division, branch or office of such firm, company or other organisation with which you and/or any such employee had no dealings during the said period. 19.1.7‘Restricted Period’ means a period of six months immediately following the Termination Date;
19.1.8‘Restricted Services’ means Company Services or services of a similar kind, offering design, PR, communications, content, digital services to companies operating in the pharmaceutical and biotech supply chain;
19.1.9‘Termination Date’ means the date of termination of your employment.

19.2 You undertake with the Company that you will not either during your employment or during the Restricted Period without the prior written consent of the Company whether by yourself, through your employees or agents or otherwise howsoever and whether on your behalf or on behalf of any other person, firm, company or other organisation, directly or indirectly:
19.2.1be involved in any Capacity with any business concern which is (or intends to be) in competition with any Restricted Services;
19.2.2in competition with the Company, solicit business from or canvas any Client or Prospective Client if such solicitation is in respect of Restricted Services;
19.2.3in competition with the Company, accept orders from or carry out work or otherwise deal with any Client or Prospective Clients in respect of Restricted Services;
19.2.4solicit or induce or endeavour to solicit or induce any person, who on the Termination Date was an employee of or contractor to the Company whom you had dealings with during your employment, to cease working for or providing services to the Company, whether or not any such person would thereby commit a breach of contract;
19.2.5 employ or otherwise engage, or facilitate the employment or engagement, in the business of researching into, developing, distributing, selling, supplying or otherwise dealing with Restricted Services to any person who was during the twelve months preceding the Termination Date employed or otherwise engaged by the Company and who by reason of such employment or engagement is in possession of any such trade secrets or Confidential Information DocuSign Envelope ID: XYZ relating to the business of the Company or who has acquired influence over its Clients and Prospective Clients. 19.3 You undertake with the Company that you will not at any time:
19.3.1during the continuance, or after the termination, of your employment, engage in any other trade or business or be associated with any other person, firm or company engaged in any trade or business using the names XYZ & PR or incorporating the word(s) XYZ;
19.3.2after the termination of your employment in the course of carrying on any trade or business, claim, represent or otherwise indicate any present association with the Company or for the purpose of carrying on or retaining any business or custom, claim, represent or otherwise indicate any past association with the Company to its detriment.
19.4 The period for which the restrictions apply shall be reduced by any period that you spend on Garden Leave immediately before the Termination Date.
19.5 While the restrictions in this contract are considered by the parties to be reasonable in all circumstances, it is agreed that if any such restrictions, by themselves or taken together, shall be adjudged to go beyond what is reasonable in all the circumstances for the protection of the legitimate interests of the Company but would be adjudged reasonable if part or parts of the wording were deleted, the relevant restriction or restrictions shall apply with such deletion(s) as may be necessary to make it or them valid and effective.



My Client's Service Agreement Is attached.


Any holes in this you can find would be AMAZING as the job is incredible. THANK YOU!

[atticus]

I see no hole. Yes, you may face legal action.

[atticus]

On further reflection, a claim against you is perhaps not as likely as a claim against your prospective new employer.

[Marketeer]

Thanks for the advice - they are taking legal action against prospective employer which will cover their outstanding balance and signing that I would never be the primary contact for them. Loss of earnings is hard to prove as it's a new client for the agency and the work at the moment is project specific so it's not like they've been regularly paying XXX amount per month for years. If the prospective client is covering all costs already, can they then go after me for the same costs as they've already been covered?

[ULA]

Unfortunately you are not out of the clear, yet even if they are taking legal action against your prospective employer. If you did go and work for this client then you would be in breach of your contract and potentially they could sue you or depending on how much money they wanted to spend on this, could apply for an injunction to stop you working at the company.

As atticus has said though it would appear they are going after the prospective employer and hopefully they will not pursue anything directly with you. However, I would not leave this to chance and suggest you have a discussion with HR, in light of the action being taken against the client and get an agreement in writing about not pursuing you for breach of contract and allowing you to go and work for this company on termination of your current employment.

[Marketeer]

Thank you for the advice - if they were to sue me, what monetary value would they be looking for please? Especially if the client is covering the outstanding costs for the project which would take their balance to zero owed. Thank you so much everyone!

[atticus]

Spammer using ChatGPT.

[atticus]

Thank you for the advice - if they were to sue me, what monetary value would they be looking for please? Especially if the client is covering the outstanding costs for the project which would take their balance to zero owed. Thank you so much everyone!

First of all, an injunction may be sought to prevent you breaching your contract. That may nip the financial damage in the bud.