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Ben Jones
Ben Jones, UK Lawyer
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I have a non-solicitation clause in a contract with

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I have a non-solicitation clause in a contract with a former consultancy employer (cognizant) and would like to understand what restrictions this places on me in terms of carrying out work for an end client whose account I worked on whilst in the consultancy's employ. Specifically I'd like to know two things
1. As the client, Specsavers, is registered in both Guernsey (for tax reasons) and the UK mainland and the contract my former employer had (and still has) is with the UK mainland registered SpecSavers organisation, would it be legal to contact the Guernsey organisation based on the principle of it being a separate legal entity and would I be able to carry out services for the Guernsey organisation which interacted with the UK mainland registered organisation?
2. If I were to have a contract with the Guernsey registered organisation, or work through someone else's company for SpecSavers in Guernsey or in the UK mainland organisation, would this constitute a breach of contract?
Contractual Non-solicitation Copy (context is I left cognizant last August after leading the onsite engagement for the client on behalf of cognizant for 2.5 months)
6.2 Non-Solicitation
You understand that your work as an employee of Cognizant creates a relationship of trust and confidence between you and Cognizant. You acknowledge that following termination of your employment you will be in a position to compete unfairly with Cognizant as a result of your access to and knowledge of the Confidential Information, trade secrets and knowledge about the business, operations, customers, employees and trade connections of Cognizant. You agree to enter into the restrictions in this clause for the purpose of protecting Cognizant's legitimate business interests and in particular the Confidential Information, goodwill and the stable trained workforce of Cognizant.
6.2.1 You shall not without the prior written consent of the UK Head of your Practice or Department directly or indirectly, on your own behalf, or on behalf of any person, firm or company in connection with any business which is or is intended or is about to be competitive with the Restricted Business (as defined below) for a period of [12] months after the Termination Date (as defined below):
 solicit or canvass the custom of any Customer (as defined below);
 solicit or canvass the custom of any Potential Customer (as defined below);
 deal with or accept business from any Customer;
 deal with or accept business from any Potential Customer;
 solicit or entice away, or attempt to entice away from Cognizant any Restricted Employee (as defined below) whether or not such person would thereby commit a breach of contract;
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 employ, offer to employ or enter into partnership with any Restricted Employee whether or not such person would thereby commit a breach of contract.
6.2.2. You shall not without the prior written consent of the UK Head of your Practice or Department for a period of [6] months after the Termination Date, directly or indirectly, on your own behalf, or on behalf of any person, firm or company:
 within the Restricted Territory (as defined below) set up, carry on, be employed in, provide services to, be associated with, or be engaged or interested in, whether as director, employee, principal, agent or otherwise, any business which is or is intended or is about to be competitive with the Restricted Business save as a shareholder of not more than 3% of any public company whose shares or stocks are quoted or dealt in on any Recognised Investment Exchange;
 endeavour to cause any person, firm or company who at the Termination Date or at any time during the [12] months immediately prior to such termination is or was a Restricted Supplier (as defined below) to Cognizant, to either cease to supply Cognizant or materially alter the terms of such supply in a manner detrimental to Cognizant.
Hello so you wish to work with these clients before the expiration of the 12 month restriction?
Customer: replied 1 year ago.
Essentially yes, and am trying to understand what constitutes the client legally
Do you have the definition of what a Restricted Business means?
Customer: replied 1 year ago.
Hi Ben, please find the full contract attached
Thank you, ***** ***** take a closer look and get back to you later today
Thanks for your patience. trying to work around the Specsavers issue is not necessarily going to work the way you suggested because they may till be seen as the same legal entity. When you look at it on paper they may be different companies registered separately, but they could still be seen by the courts as the same for purposes of restrictions, especially if they are in effect doing the same work, are governed by the same people or holding company and the reasons for different registrations are just for tax reasons. However, you may find that these restrictions will not necessarily be considered enforceable against you. In law, 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:{C}· Goodwill (including supplier and customer connections){C}· Trade secrets and confidential information{C}· 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, 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. 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. 3. Non-competition covenants prevent an employee from working with a competing business or setting up to work in competition with their 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. 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:{C}· Obtain an interim injunction preventing the employee from doing certain things that would make them in breach of the restrictive covenant{C}· 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
Customer: replied 1 year ago.
hi Ben,This is really helpful, thankyou.By way of getting a steer on the context for my situation, I'm currently on extended probation within a permanent role which obviously means my job is at risk. I was approached yesterday by an agent on behalf of SpecSavers about a contract position which I believe to be on the same program of work which I originally led whilst working as part of the SpecSavers account. This happened without any direct or indirect engagement on my part quite out of the blue.So far, based on what you've told me, I can't see any obvious reason for Cognizant having a case against me if I were to be successful in applying through this channel. Given what I've told you, do you see any obvious issue?One final additional thing I'd like to clarify is around whether, having been indirectly contacted by SpecSavers, I am now at liberty to contact them directly even if the person I would contact may not be the person offering or sponsoring the contract position about which I've been contacted? My reason for asking is that I believe, but cannot confirm, that the role currently in question is with their IT function whereas I would prefer to work directly for their marketing function and I know that their is a potential opportunity to do so.Thanks again for your helpKind regards
Hello Graham, I do not see obvious issues as such – as mentioned if you simply worked for that company, minding your own business and without using specific confidential information, technical secrets, pricing information, etc that could directly affect your ex employer, it is unlikely they can prevent you from working there. Of course it would not prevent them from being a nuisance and threatening you and even going to court to try their luck at getting an injunction but I just do not see it being easy to do. As to contact, I is best to try and keep it with the specific departments, so if contacted initially by Dept A and you would prefer to work for Dept B, you should limit your direct correspondence with Dept A and only peak to Dept B if approached by them. But this is not a formal rule, it is just to limit any potential issues. You can ask Dept A to put you in touch with Dept B and for it to look like you approached them but to be honest whether you initiate contact or not, the important thing is what you do in your job and how that affects the old employer. If your original question has been answered I would be grateful if you could please quickly rate my answer by selecting 3, 4 or 5 starts at the top of the page - it only takes a second to do and is an important part of our process. I can still answer follow up questions afterwards if needed. Thank you
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