Help: employment law and non-compete
Discussion
Personally, my financial situation dictates that I cannot afford to spend anything fighting this, I must provide for my family first and foremost. If things go on for much longer than 2 weeks I'll have to consider the alternative job offer I received a couple of weeks ago, at least company XYZ won't know where I'm going.
As for the costs company ABC are prepared to foot, well that remains to be seen. After all, it could make far more sense for them to find another candidate for the role. At the same time, it was a new role they created a couple of months back and I'm unaware of how many others were under consideration for it, so swift was my appointment / interview process.
Naturally company ABC has already been subjected to a cost by having to respond using their solicitors, so I now feel obliged to continue with my endeavours to work for them. However, I can't go unpaid for long, so if there's no indication of a resolution at the end of the week I'll have to notify them that I'm now urgently seeking alternative employment through whatever means.
As for the costs company ABC are prepared to foot, well that remains to be seen. After all, it could make far more sense for them to find another candidate for the role. At the same time, it was a new role they created a couple of months back and I'm unaware of how many others were under consideration for it, so swift was my appointment / interview process.
Naturally company ABC has already been subjected to a cost by having to respond using their solicitors, so I now feel obliged to continue with my endeavours to work for them. However, I can't go unpaid for long, so if there's no indication of a resolution at the end of the week I'll have to notify them that I'm now urgently seeking alternative employment through whatever means.
Going to the other company may just delay the argument, as you have previously said that the other company is in the same line of business. Your ex employer will probably find out where you are working. Indeed, if you say "I am not going to Bloggs and Co, but I won't tell you where I am going", the ex employer will draw the natural inference from this. I am sorry to be blunt, OP, but you need to start taking the situation more seriously and stop sticking your head in the sand. You either have to fight your way out or negotiate you way out of this bind, or find work selling some different kit.
C.A.R. said:
Naturally company ABC has already been subjected to a cost by having to respond using their solicitors, so I now feel obliged to continue with my endeavours to work for them. However, I can't go unpaid for long, so if there's no indication of a resolution at the end of the week I'll have to notify them that I'm now urgently seeking alternative employment through whatever means.
Well this is where you need to think quickly, and logically, as I mentioned previously. Following the path you currently have, it only works out in your favour if the old employer effectively writes back saying "Yeah sorry, we were wrong all along, our contract's invalid, thanks for bringing that to our attention.". You know the likelihood of that. You've said for yourself that they were overly nasty to your already, and want to make an example of you. So, again, you can predict whether a quick solution is likely to happen.
The endgame is that the old employer is on better ground and will likely have more impetus (read money) to push this harder.
As such, what is a 'win' for you, and what it the likelihood and cost of getting it. If you are serious about going for this job IMHO you'd be foolish not to get your own advice. Let's say every week you are without work you lose £500. That could have got you the advice by now. However, BV has very already kindly outlined the issues.
The only thing you should do without taking professional advice yourself is work in a different field, at least for 12 months.
I am not your lawyer, OP, and you need one quickly; but there are two points in what BV has said that I would repeat and stress.
(1) If you can provide undertakings, it is usually a good idea to do so. An attempt to meet halfway usually takes a lot of heat out of a dispute and focuses attention on the outstanding points and the ways, if any, in which they too may be compromised in a settlement.
(2) Good lawyers focus on the best possible outcome for their client and play the game to that end (rather than picking fights or being difficult or puffing out chests). A well-meaning friend or solicitors acting for someone other than you will not be focused properly on getting you out of this problem with the least pain possible: your friend probably has half a small clue about what he or she is doing, at best; a lawyer not acting for you is not acting for you.
On the face of it, there is plenty of room for some negotiated compromise, but the former employer wont even be thinking about that while you are obstructive and/or unrealistic about the prospects. I think I would be telling them something like this: "You have no idea what information he has or does not have. He is refusing to give undertakings, which may well be because he is simply getting bad advice, but it might be that he cannot give them because he is doing wrong. Get the injunction. It may wake him up and bring him to the table; it may not. But it should protect your interests in the interim".
(1) If you can provide undertakings, it is usually a good idea to do so. An attempt to meet halfway usually takes a lot of heat out of a dispute and focuses attention on the outstanding points and the ways, if any, in which they too may be compromised in a settlement.
(2) Good lawyers focus on the best possible outcome for their client and play the game to that end (rather than picking fights or being difficult or puffing out chests). A well-meaning friend or solicitors acting for someone other than you will not be focused properly on getting you out of this problem with the least pain possible: your friend probably has half a small clue about what he or she is doing, at best; a lawyer not acting for you is not acting for you.
On the face of it, there is plenty of room for some negotiated compromise, but the former employer wont even be thinking about that while you are obstructive and/or unrealistic about the prospects. I think I would be telling them something like this: "You have no idea what information he has or does not have. He is refusing to give undertakings, which may well be because he is simply getting bad advice, but it might be that he cannot give them because he is doing wrong. Get the injunction. It may wake him up and bring him to the table; it may not. But it should protect your interests in the interim".
Edited by ORD on Wednesday 4th November 11:02
I will just pop back in to say that this is not so much wake up and smell the coffee, as that the coffee has been sitting on the hob for ages and is now quite stewed. The coffee will now taste more bitter than it would have before, but it is time to drink some coffee.
Plus plus, everything that JustinP1 and ORD have just said, with (door) knobs on.
Plus plus, everything that JustinP1 and ORD have just said, with (door) knobs on.
I am inclined to doubt that no news is good news on this one. Unless the letter that the OP's proposed new employer's solicitors sent to the other side on Wednesday was an absolute slam dunking knock out punching unbeatable letter of WIN, I would have expected the other side to have come back onto them on Thursday or Friday (delay can be fatal to a claimant in injunction cases, so the correspondence tends to crack along at a briskish pace). Maybe they are being a bit slack and are waiting until Monday to fire their next volley. I sometimes find that we get held up if we have to report back to and await orders from OKW in California, when the claimant is an EU subsidiary of a West Coast business, but I do not know if there is much international corporate group activity in relation to doors. Blast doors, yes, but other ones, not so sure.
Well, nothing to report back really. The only development being that I sent a letter (as advised by ABCs solicitors) onto XYZs solicitors stating that I stood by everything in their response and that they were acting on my behalf also.
I also identified a list of customers that I dealt with most frequently, in the hopes that my old company will seek to prevent me from contacting those particular customers and I'll be happy to sign something binding for the 12 month duration.
I got offered yet another job - that's 3 jobs now, none of which I can effectively undertake - which I have been offered in the same industry.
I discovered that another senior member of the sales staff is looking to hand in their notice at month's end, after 8 years service. Their contract is so old that it does not contain the same clause.
I'm increasingly frustrated, stressed and unable to sleep (no work means nothing to keep me occupied during the day) and frankly fed up just moping around the house all day.
One further piece of correspondence (relevance unknown) is the response I got from handing in my resignation, where I invited them for an open discussion about the restrictive covenant. The letter simply acknowledges my resignation and wishes me well with my future endeavours, therefore creating this false sense of security that the transition into the new job was going to be amicable. What it's actually done is create the situation I find myself in now, temporarily unemployed and wondering where the rent for December is going to come from - not least where the money for Christmas is going to come from!
I'm going to try and get some sleep now, turn my mind to my kids and try to not worry too much about what will happen this week.
I also identified a list of customers that I dealt with most frequently, in the hopes that my old company will seek to prevent me from contacting those particular customers and I'll be happy to sign something binding for the 12 month duration.
I got offered yet another job - that's 3 jobs now, none of which I can effectively undertake - which I have been offered in the same industry.
I discovered that another senior member of the sales staff is looking to hand in their notice at month's end, after 8 years service. Their contract is so old that it does not contain the same clause.
I'm increasingly frustrated, stressed and unable to sleep (no work means nothing to keep me occupied during the day) and frankly fed up just moping around the house all day.
One further piece of correspondence (relevance unknown) is the response I got from handing in my resignation, where I invited them for an open discussion about the restrictive covenant. The letter simply acknowledges my resignation and wishes me well with my future endeavours, therefore creating this false sense of security that the transition into the new job was going to be amicable. What it's actually done is create the situation I find myself in now, temporarily unemployed and wondering where the rent for December is going to come from - not least where the money for Christmas is going to come from!
I'm going to try and get some sleep now, turn my mind to my kids and try to not worry too much about what will happen this week.
OP, you appear to be blaming others for your difficulty, but you did enter into the contract that contained the restrictions now in issue. You may have thought they were not important, but they are, and they are at least arguably enforceable. No one held a gun to your head when you entered into the contract, as far as I am aware. I hope that you can find a solution to the problem, but there is no point in going oh woe is me. Have you offered the no go customer list to the other side yet? Being pro active here may help, not least as it may help you feel better. Run any steps by the lawyers and listen to their advice (I am a tad concerned about their advice not to disclose correspondence, however.) As a back up plan, look for jobs outside the business sector you are currently in.
C.A.R. said:
I'm increasingly frustrated, stressed and unable to sleep (no work means nothing to keep me occupied during the day) and frankly fed up just moping around the house all day.
...What it's actually done is create the situation I find myself in now, temporarily unemployed and wondering where the rent for December is going to come from - not least where the money for Christmas is going to come from!
I'm going to try and get some sleep now, turn my mind to my kids and try to not worry too much about what will happen this week.
Please OP, take this in the constructive way it is intended:...What it's actually done is create the situation I find myself in now, temporarily unemployed and wondering where the rent for December is going to come from - not least where the money for Christmas is going to come from!
I'm going to try and get some sleep now, turn my mind to my kids and try to not worry too much about what will happen this week.
I sadly feel that I am watching a car crash happening here with you asleep at the wheel.
More than a month ago, when you started your other thread, your questions were answered within minutes by Jason, a specialist employment lawyer. He advised you to that the contract was enforceable and to take your own legal advice.
On this thread, Breadvan72 has looked over your situation and replied at length with his opinion of his position. He is a barrister, and one of his specialist niches in employment restraint of trade. Very rich and famous people pay him large amounts for his advice, because there are only literally a handful of people in the country with his level of expertise. He's very kindly and at length given you specific advice after looking at your contract and advised you on the likely outcome, tactics and to get your own legal representation to work for YOU, pronto, a number of different ways.
I have to say that these are among the reasons where this forum is an absolute credit to PH.
I don't have those employment law skills, but as well as studying game theory and business negotiation academically, I've run a business for 20 years, so can put myself in your old employer's position. I wouldn't help you one bit. You'd mean nothing to me. I'd stick to my guns, knowing that the money I'm spending protects me from loss directly, and also means that I can put your head on a spike so I won't have to spend money again. I'd be better off even being wholly unreasonable to you to reach those ends. Also, I'd know I hold all the cards, whilst you get more and more desperate over time. It's a win/win. You give up, and your head is on my spike to parade, or you carry on and I get an injunction which means your head is also on my spike with a big neon halo round it.
I may be wrong, and for your sake I hope I am. Indeed negotiation is possible, still with the right advice and approach. But, what I can do is now refine your options of what to do about this *today*:
1) Hire your OWN lawyer to look after your interests and rapidly negotiate on YOUR behalf looking after YOUR best interests.
2) Apply for jobs outside of the industry.
3) 1) and 2) at the same time.
4) Remain asleep at the wheel.
Edited by JustinP1 on Monday 9th November 11:11
Yeppers. The employer MIGHT give up. The letter that the solicitors sent the employer may have blown its socks off. Could a firm of solicitors that appears to be ignorant of the rules about pre action disclosure pull off such a feat? Maybe they could. If so, yay them, and yay you.
BUT, the employer might not go away without a fight, or at least without a long and hard talk. If it is a fight, you need a fighter. Your fighter. If it is a talk, you need a talker. Your talker. The fighter and the talker can be the same person, as any good litigation lawyer can do war war and jaw jaw, sometimes both at the same time.
You may be in your new job by Xmas, happy as Larry. Or you may be out of work by Xmas and facing a hefty legal bill. This could go either way, and there are various points in between those two outcomes. But YOU, OP have to take steps NOW to influence YOUR life over the next year or so and maybe beyond.
This is not the worst thing that will ever happen to you. But it ain't the best either. Moping about it at home and chatting about it on a car forum won't get it done.
BUT, the employer might not go away without a fight, or at least without a long and hard talk. If it is a fight, you need a fighter. Your fighter. If it is a talk, you need a talker. Your talker. The fighter and the talker can be the same person, as any good litigation lawyer can do war war and jaw jaw, sometimes both at the same time.
You may be in your new job by Xmas, happy as Larry. Or you may be out of work by Xmas and facing a hefty legal bill. This could go either way, and there are various points in between those two outcomes. But YOU, OP have to take steps NOW to influence YOUR life over the next year or so and maybe beyond.
This is not the worst thing that will ever happen to you. But it ain't the best either. Moping about it at home and chatting about it on a car forum won't get it done.
Edited by anonymous-user on Monday 9th November 13:28
As above, I don't have the finances to commit to my own legal advice. I've made enquiries and the going rate is about £250. I want a positive outcome from the current situation between both employers respective solicitors. If I commit to such expenditure now, what would the bonus be for me? Would I ever get that money back? Would I be able to claim for loss of earnings?
If the answer to either of those questions is no or probably not, then I can't justify the expense.
I'm awaiting news tomorrow, both MDs are looking to have a conversation over the phone to try and resolve, whether or not anything will come of it is anyone's guess.
If the answer to either of those questions is no or probably not, then I can't justify the expense.
I'm awaiting news tomorrow, both MDs are looking to have a conversation over the phone to try and resolve, whether or not anything will come of it is anyone's guess.
I have read your thread just now and I really do hope you can get sorted quickly, it may not be your hoped for outcome but at least you can move forward.
Many years ago I was sued for repudiation of contract, the sum was significant and it was headed to the high court after both sides had barristers in place. I won't bore you with the detail, but I had a small lever in the argument.
Anyway it was settled out of court and cost me around £3000 plus maybe £800+ in fees. It wasn't nice but far far better than it could have been and I slept well after that.
My point is, whatever the outcome you will be better off.
Good luck.
Many years ago I was sued for repudiation of contract, the sum was significant and it was headed to the high court after both sides had barristers in place. I won't bore you with the detail, but I had a small lever in the argument.
Anyway it was settled out of court and cost me around £3000 plus maybe £800+ in fees. It wasn't nice but far far better than it could have been and I slept well after that.
My point is, whatever the outcome you will be better off.
Good luck.
One thing that I don't quite follow is that the new employers' solicitors appear to claim to represent the OP. If I were him, I might be asking them to give him access to a solicitor that can advise him - i.e. ask for a meeting with a senior associate other than the one working for the new employer on the case. Have you signed a retainer with them, OP?
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