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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 48193
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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Please can you tell me if my current contract stops me from

Resolved Question:

Please can you tell me if my current contract stops me from joining my client.
Submitted: 1 year ago.
Category: Law
Customer: replied 1 year ago.
I am a recruiter with a single client, that has been my single client for 5 years, including 2 years before joining my current employer. The client has now asked me to explore whether or not I am able to work for them directly as an internal recruiter, and I am very keen to do so.My current contract contains the following restrictions:-Non SolicitationYou will not for a period of six months after the termination of your employment either personally or by an agent, whether on your own account or for or in association with any other person, firm, company or organisation, canvass, solicit or endeavour to take away from the Company the business or custom of any candidate or client of the Company with whom you personally dealt during the six months immediately preceding the termination of your employment.Non Dealing
You will not for a period of six months after the termination of your employment either personally or by an agent, whether on your own account or for or in association with any other person, firm, company or organisation, for or in relation to any business or activity which is in competition with the Company deal, negotiate or contract with any candidate, client, prospective candidate or prospective client with whom you personally dealt during the six months immediately preceding the termination of your employment.Non Poaching
You will not for a period of six months after the termination of your employment either personally or by an agent, whether on your own account or for or in association with any other person, employ or engage any person who was during the six months before the termination of your employment engaged as a Senior Consultant, Managing Consultant or Director.Our current contract with the client does not guarantee any current or future revenue.Your advice will be greatly appreciated.
Expert:  Jamie-Law replied 1 year ago.

Hello my name is ***** ***** I will help you.

Is there anything specifically you are concerned about this?

Customer: replied 1 year ago.
My employer (a ltd co) had just been sold to a much larger Plc and I would rather not continue with them.I also cant find a survival clause in the contract either.
Expert:  Jamie-Law replied 1 year ago.

Are you employed or self employed?

Customer: replied 1 year ago.
Employed.I also need to clairfy The PLC has acquired 78% of the share capital of RDW.The outstanding interests in RDW are subject to put and call arrangements and can be exercised up to 18 October 2016
Expert:  Jamie-Law replied 1 year ago.

Ah, sorry this is beyond mu area of expertise. I had assumed this was a standard contractual dispute.

One of my colleagues will help shortly.

Expert:  Ben Jones replied 1 year ago.

Hello, my name is***** am a qualified lawyer and it is my pleasure to assist you with your question today.

Expert:  Ben Jones replied 1 year ago.

Please can you confirm how long exactly you have been employed in your current position for? Thank you

Customer: replied 1 year ago.
3 years as of 3rd Oct 16
Expert:  Ben Jones replied 1 year ago.

OK thank you, ***** ***** it with me. I am in court today so will prepare my advice during the day and get back to you at the earliest opportunity. There is no need to wait here as you will receive an email when I have responded. Thank you.

Customer: replied 1 year ago.
Ok. Thank you. I am in no immediate rush but would like to understand my position.
Expert:  Ben Jones replied 1 year ago.

Many thanks for your patience. Post-termination restrictive covenants are a rather common occurrence in employment relationships. An employer would want to protect their business from a departing employee's knowledge, business connections, influence over remaining staff, etc. However, a covenant that restricts an employee's post-termination activities will be automatically unenforceable for being in restraint of trade, unless the employer can show that it was there to protect a legitimate business interest and did so in a reasonable way.

Legitimate business interests (LBIs) are commonly accepted to include:
• Goodwill (including supplier and customer connections)
• Trade secrets and confidential information
• Stability of the workforce

An employer cannot apply a restrictive covenant just to stop someone competing with their business, but it can seek to stop that person using or damaging their LBIs by using a reasonably drafted covenant. There are a few different types of restrictive covenants that can be applied, two of which are relevant here, these being:

1. Non-solicitation covenants are there to prevent an employee from enticing away the customers of their ex-employer and as long as they are reasonable are the most commonly enforced type of restriction. Solicitation generally means “directly or indirectly requesting, persuading or encouraging clients of the former employer to transfer their business to their new employer". To be valid, the covenant should be restricted to customers with whom the employee had contact during a specified period before leaving. Other relevant factors may include the employee's level of seniority in the business, the extent of their role in securing new business and the length of similar restrictions in the employment contracts of competitors. So I do not think that this is a solicitation exercise because you are not going to solicit the client away from the employer as such, you are going to work in there with them and that does not mean actively soliciting them away.

2. Non-dealing covenants are a wider restriction and not only restrict solicitation but any other general contact with clients. The enforceability of a non-dealing covenant will depend on the interest being protected and can be influenced by a substantial personal connection the employee enjoys with a specific client. However, such a covenant will not be enforceable if it prevents any sort of contact with the client. The restriction must be focused on the specific type of contact that would directly affect the employer's business. This may be a bigger concern because if by you leaving the employer loses the whole client’s business, then that could be a great adverse effect they may be able to try and prevent by using the restrictions.

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:
• Obtain an interim injunction preventing the employee from doing certain things that would make them in breach of the restrictive covenant
• Seek compensation for damages that have directly resulted from the breach of the covenants

As you can see there are no hard and fast rules on restrictive covenants. Whether a specific restriction is enforceable will always depend on the individual circumstances, the interest being protected and whether it has been reasonably drafted. The above principles are what the courts will consider when deciding whether a restriction is going to be legally enforceable. It should give you a good idea of what to look for in your situation and decide what the chances of this being pursued further are.

I hope this has answered your query. I would be grateful if you could please take a second to leave a positive rating (3, 4 or 5 stars) as that is an important part of our process and recognises the time I have spent assisting you. If you need me to clarify anything before you go - please get back to me on here and I will assist further as best as I can. Thank you

Expert:  Ben Jones replied 1 year ago.

Hello, I see you have read my response to your query. If this has answered your question please take a second to leave a positive rating by selecting 3, 4 or 5 stars from the top of the page. I spend a lot of time and effort answering individual queries and I am not credited for my time until you leave your rating. If you still need further help please get back to me on here and I will assist as best as I can. Many thanks.

Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 48193
Experience: Qualified Solicitor - Please start your question with 'For Ben Jones'
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