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JGM
JGM, Solicitor
Category: Scots Law
Satisfied Customers: 10290
Experience:  30 years as a practising solicitor.
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How legally binding is a contract of employment?

Resolved Question:

How legally binding is a contract of employment?
Submitted: 2 years ago.
Category: Scots Law
Expert:  clairep80 replied 2 years ago.
Hi
Thank you for your question.
My name is Clare
I will do my best to help you but I need some further information first.
Were you aware of the Restrictive Covenant when you sent the letter?
Clare
Customer: replied 2 years ago.

I was aware of the covenant. The letter contained 7 of their customers, but these customers all approached us for work.


We are building a strong defence and we have received a letter from all 7 customers, stating that they approached us for business.


By the way, this happened in Scotland.

Expert:  clairep80 replied 2 years ago.
Hi
In that case I shall opt out and transfer the matter to Scottish Law
There may be a slight delay - so please be patient my colleagues are worth waiting for
Clare
Expert:  JGM replied 2 years ago.
Thank you for your question.

What is the precise wording of the restrictive covenant? Is it purely non solicitation or does it stop you taking on work from former customers at all?
Customer: replied 2 years ago.

The restrictive covenant restricted my business partner from persuading their customers to use our services in competition with them. After I sent out a general letter, informing potential customers of our business terms, an interim interdict was issued as well as a request for £64K to recover supposed losses. This occurred when they managed to obtain a copy of the letter. This is enforced until September this year.


The contract of employment was given to my business partner to sign over 12 years ago, he was never given a copy. He only realised his mistake after they sent him a copy, along with the restrictive covenant.


I sent out the business letter some time after he received the restrictive covenant.


 

Expert:  JGM replied 2 years ago.
The letter is in breach of the restrictive covenant.

You would have to prove that the customers concerned voluntarily moved to you before the letter was issued or that even if the letter was issued beforehand they still intended to come with you.

On the face of it the letter is solicitation and is actionable.
Customer: replied 2 years ago.

If we proved that the customers approached us for work, what would be the outcome?

Expert:  JGM replied 2 years ago.
If this was before the issue of the marketing letter and there was no restriction on you taking on work from previous customers per se, then you would be OK. If they approached you after the letter them you would have to establish, in evidence from the customers, that they would have given you the work anyway, and that the letter had no bearing on the issue. That way there would be no economic loss to the former employer as a result of the solicitation.
JGM, Solicitor
Category: Scots Law
Satisfied Customers: 10290
Experience: 30 years as a practising solicitor.
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