Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today.
Did it state that you were unable to contact clients in your contract please?
I don't think so. I have requested a copy of my contract from the clinic owner as I cannot trace my copy but I looked at it fairly recently & don't remember anything of the sort being in it.
OK, thank you, XXXXX XXXXX this with me - I will look into this for you, get my response ready and get back to you on here. No need to wait around and you will get an email when I have responded, thank you
Whilst it is possible for an employer to try and restrict past employees from either soliciting or dealing with their clients, or acting in competition, this is only possible if there is a specific and reasonably drafted contractual clause to that effect. Even then, such clauses would only be enforceable if they were reasonable and went no further than to protect legitimate business interests of the company and a blanket and indefinite clause restricting any contact with past clients is unlikely to ever be seen as reasonable and ne enforceable.
So the most important part here would be if no such clause existed in your contract – if that was the case then you are entirely free to deal with whoever you want, regardless of whether they were present or past clients. The employer is not legally able to just tell you now that you cannot deal with these clients and expect you to accept that – no contractual restriction means no restriction at all and you can work with anyone you please.
If there was a specific restriction then it would depend on how it was worded and what it was trying to do. If these clients were not pressured by you in any way to leave and come working with you, basically making this decision out of their own choice, then it is also likely that they can do so and it would be quite difficult for the employer to justify a strict restriction preventing them from doing this.
Hi Ben just found my contract & it states that: "you shall not engage in any such activity if it relates to a business which is similar or in any way competitive with the business of the company, without the prior consent of the owner" To clarify I handed my notice in before Christmas to set up my own business which I explained at the time - he suggested that I stay on for a day a week at his clinic whilst I did this which I have been doing since the first week in February. I assume that as my contract has now been terminated this is no longer relevant in any case. The only other thing within my contract that will now be relevant is the Obligations on Termination which state "Any company property in your possession & any original or copy documents obtained by you in the course of providing the Services shall be returned to the owner at any time on request & in any event before the termination of the agreement". I do not have anything that needs to be returned or deleted from any PC or storage device. I have now read through my contract about 4 times just to double check & as far as I can see there is no restriction on who I can treat once I am no longer working at the clinic!
O, you basically have a non-competition covenant, which tries to prevent you from working with a competing business or setting up to work in competition with your ex-employer. Such general restrictions are seen as a restraint of trade and will be difficult to enforce. They will only be seen as reasonable if in the process of working in competition, the employee uses trade secrets or sensitive confidential information belonging to their ex-employer, or their influence over clients is so great that such a restriction is necessary. The length of the restriction and its geographical coverage will also be relevant and an indefinite restriction with no specified period or geographical coverage will unlikely be enforceable.
Great, looks like its an indefinite restriction as there is no time period or distance from his premises mentioned anywhere. Would you recommend that I get something in writing to this effect from a professional so I am free to carry on setting up my business & if I am approached by an existing client then I am able to treat them at another venue. Thanks so much for your help so far...
Sorry what specifically are you looking for to get in writing?
Well I guess something along the lines of there is no restriction in my contract to state that if I am approached by an existing client then I have to turn them away?
Whatever you get it is just that person's word against the employers - even if a solicitor was to draft a letter stating that there is nothing in there to restrict you doing something or that they believe the clause would be unenforceable, they have no legal standing to make this enforceable themselves, meaning the employer can still take the matter further if they thought they should challenge it and make a claim
Ok so what would your advice be going forward? Should I carry on as normal advertising my services? I have no intention of directly approaching people but they can obviously contact me via various different means. Is there a difference because I am self-employed & have never been employed by the business?
your employment status would not really matter because it is the contract you work under that would define your rights and what you are subject to in terms of restrictions. At this stage the best you can do is just to continue to work as normal, set up as you had planned but just avoid directly poaching these clients and let them realise for themselves and make up their own mind as to whether they want to work with you
Please let me know if this has answered your original question or if you need me to clarify anything else for you in relation to this? Thanks
Just to finalise please could you confirm that provided I don't poach directly from the old business (please bear in mind that I have no access to any client records at the old business so have no way of directly contacting anybody) that I am free to work with whoever approaches me, irrelevant of whether I have seen them before or they are a previous customer of the old business and I can do this at any location that is suitable? Thanks Emma
generally, yes, but I cannot guarantee that the employer will not try and pursue this and make your life difficult by making a claim for breach of contract, which they may still lose, but would still require you to defend in the process
Just to clarify further I resigned from my existing contract on 29th September 2013 giving 6 weeks notice as per the terms. Subsequently I have been working under what the business owner has referred to as an ad hoc agreement (this was unsigned & verbal) therefore are the terms of my contract even relevant? Sorry my position within the business has been somewhat changeable within the last few months!
whilst the original terms may not be applicable to the latest job you did, the employer could still try and rely on those restrictions that existed from the contract as this contract would still exist legally, even if you subsequently worked under different arrangements
So the contract would not expire after fulfilling the 6 week notice period?
The contract itself would, but the restrictions apply post-termination so they would continue after the contract has terminated
Ok thanks Ben, I'll let you go now! Thanks for all of your help, it's very much appreciated.
You are most welcome. Please take a second to leave a positive rating for the advice I have provided as that is an important part of our process. Thank you and feel free to bookmark my profile for future help:
I'm trying to rate the service but it won't let me!
it should do, the option is enabled, if you can't do it then you can just type it instead and I will sort at my end, many thanks
It says you have not finished answering so..
Excellent Service rating for Ben's help. Prompt responses & clear answers. Thank you very much.
Thanks, XXXXX XXXXX Sometimes the system gets stuck and won't allow you to rate but thanks for the kind feedback