Sorry Ben, just picked up your reply, my name is Nick
tender for, canvas, solicit or endeavour to entice away from the Company or any Relevant Group Company the business of that Company.
Hello Nick, sorry we missed each other earlier. Whilst restrictive covenants are mainly used as a scare tactic by employers, if an employee has acted in breach of a covenant and the employer is intent on pursuing the matter further they can do so. The following are potential outcomes if the employer takes legal action:
So these are the available options to the employer. They would have to go to court and prove they have a case before they can do anything. They could just threaten you in the meantime and issue warnings, etc but unless they actually go to court and get formal judgment there is not much they can do.
I hope this clarifies your position? If you could please quickly let me know that would be great, as it is important for us to keep track of customer satisfaction. Thank you
Thanks Ben, that is very helpful.
Where I am is that my former employer is trying the scare tactics and is using a clause that says "The employee shall indemnify and keep indemnified the Company and any Relevant Group Company from and against all claims, costs, expenses, loss or damage (including but not limited to legal costs) which may arise driectly or indirectly from the unauthorised disclosure or use of the Confidential Information by him or from any other breach of the terms of this agreement". He believes that this gives him an absolute right to consult solicitors because I will ultimately pick up the costs. Unfortunately he is not a rational man and so common sense does not come into play.
Questions, surely this is not right.
Hello, it does not quite work like that. It certainly does not give him the full right to spend money as he sees fit to get legal advice or to make a legal claim and then expect you to foot the bill. Whilst such an indemnity can potentially be enforceable, he would have to satisfy a number of things for that to happen – he must show that the restrictive clauses were fair and reasonable in the first place; he must show that you had actually breached these restrictions; he must show that the indemnity clause is reasonable and should be enforceable in the circumstances; he has to show that any costs incurred are reasonable and not disproportionate So it is not as simple as just having the clause and then applying it without any second thoughts.
Hope this clarifies things a bit more?
Yes it does and thank you again. One final question if I may. Should matters go to court, can you bring to the courts notice the financial proberty
Yes it does and thank you again. One final question if I may. Should matters go to court, can the financial probity and business attitudes of the business owner be bought to the courts attention to prove that any claims are likely to be malicious and vexatious rather than being borne on facts? In a nutshell I can prove from sworn statements (and personal appearance) from former Directors, Suppliers and Sub-Contractors that the business is not ethical (hence me leaving) and that any evidence given to the court is of questionable authenticity?
Just because they may have had previous issues does not mean that every claim they make is malicious or vexatious so do not expect the court to just look at that and decide that there is no claim - the current issues will still be decided on the current facts