Post Termination Restrictive Covenants/Gardening Leave with no express clause

[bwc]

Hi All,

I'm after a bit of advice regarding my current situation.

My skill is in technical support. I worked for a company for almost 10 years who were taken over. I didn't like the ethos of the new company so decided to start my own business. I had my contract checked out by an employment solicitor who deemed the restrictions in the contract to be too widely drafted to be enforceable, however, my plan was to wait until the restrictions expired before speaking to any previous clients.

As word quickly spread of my leaving, previous customers, many of whom i consider as friends started to contact me through various forms of media, SMS, LinkedIn etc. I'd indicated that I'd be interested in taking on their support contracts once the agreements with my old company had finished (they are normally on a 1 year contract), and to come back and see me when this is the case.

My previous company placed me on gardening leave even though they did not have a clause in my contract to do so, which my solicitor advised they would now struggle to enforce any restrictions due to their breach (even if they were correctly drafted). I'm possibly about to hit the next phase of the journey and before paying my solicitor again i'd like an idea of whether its worth it.

A company fell out of contract with my previous employer and asked me for a quote, which i provided and they have accepted. Another customer have indicated that they would like to move over to me, and have asked the permission of my former employer to do so, who haven't decided whether they are going to issue me with a solicitors letter or let me take the contract yet so I'm a little concerned about where I stand.

The work that I do is by no means the focus of my former employer and probably accounts for less than 1% of their annual profit.

My question is, does the fact that customers were out of contract strengthen things further for me, as they have chosen to place their business with me, or should i be turning them away and saying "I don't want to take the chance of legal action" bearing in mind that they won't be taking this portion of business back to the old employer, they will just find a new support company.

Also - what would be the process if they issued me with a cease and desist letter?


Many thanks in advance

[stevemLS]

Re: Post Termination Restrictive Covenants/Gardening Leave with no express clause

Hi and welcome

To be enforceable restrictive covenants have to be reasonable in duration, geographical extent and nature.

Given that you have already taken professional advice, it is difficult to see what an internet forum can offer.

However, my tuppensworth is that the fact that the customers were out of contract with your former employer is relevant. It is the nature of the services you are providing and whether they are caught by the terms of the restrictive covenant that matters.

If they issue a "cease and desist" letter which you ignore, the next step would be to apply for an injunction prohibiting you from performing services to any person and of any nature which fell within the terms of the restriction you agreed to.

Obviously as you have not told us what that clause includes it is very difficult to offer any opinion on its reasonableness.

[bwc]

Re: Post Termination Restrictive Covenants/Gardening Leave with no express clause

Apologies for the delay in responding.. the restriction is worded as follows:

"For a period of 6 months from the termination of your employment with COMPANY, howsoever this may come about, you will not personally or on behalf of any other employer or company, or as a partner in any partnership nor by any employer or agent nor in any way at all, solicit or accept orders from or in any way deal with any person, organisation or company with which you or to your knowledge COMPANY has done business with or quoted for business"

As my old employer do business with many high street companies such as Virgin Money, Nat West, B&Q, Asda plus most other large names, this restriction essentially stops me from banking or shopping on the high street as that would sureley be classed as dealing with that company? Also the way i read it, it would stop me for example, going to work for ASDA as a shelf stacker as again, i'd be dealing with a company who are a customer of theirs.

I guess what im looking for from the forum, is to see whether, if i receive a cease and desist, should i adhere to it and wait the remainder of the time, or should i push them, knowing that I have an almost water tight case (dont forget the gardening leave without any express clause)

Best regards