Former employer threatens to sue
Discussion
Martin4x4 said:
If the 'threats' cause him 'distress' and he is the judge of this then they are potentially breaking the law. He just needs to make this 'distress' clear to the Police when making a complaint.
Take a look at the Harassment clause:
http://www.cps.gov.uk/legal/s_to_u/stalking_and_ha...
Also take a look Section one of the Malicious Communication:
http://www.legislation.gov.uk/ukpga/1988/27/sectio...
As a general rule under contract law he is under no obligation to agree to anything without consideration or reciprocity.
Ignore all of this. There is no harassment as their behaviour is reasonable in asserting their contractual position.Take a look at the Harassment clause:
http://www.cps.gov.uk/legal/s_to_u/stalking_and_ha...
Also take a look Section one of the Malicious Communication:
http://www.legislation.gov.uk/ukpga/1988/27/sectio...
As a general rule under contract law he is under no obligation to agree to anything without consideration or reciprocity.
It is not malicious communication it is asserting their contractual position.
Oh, and as for the contract- you may discover it required the employee to work and then not to compete after employment terminates and, in return, the employee is given a job and a salary.
Unless badly drafted and/or and unreasonable restraint of trade the non-compete clause has every chance of being enforceable. Nothing that's been said here so far makes me think this one is duff.
allergictocheese said:
Ignore all of this. There is no harassment as their behaviour is reasonable in asserting their contractual position.
It is not malicious communication it is asserting their contractual position.
Oh, and as for the contract- you may discover it required the employee to work and then not to compete after employment terminates and, in return, the employee is given a job and a salary.
Unless badly drafted and/or and unreasonable restraint of trade the non-compete clause has every chance of being enforceable. Nothing that's been said here so far makes me think this one is duff.
You don't have a clue what you are talking about.It is not malicious communication it is asserting their contractual position.
Oh, and as for the contract- you may discover it required the employee to work and then not to compete after employment terminates and, in return, the employee is given a job and a salary.
Unless badly drafted and/or and unreasonable restraint of trade the non-compete clause has every chance of being enforceable. Nothing that's been said here so far makes me think this one is duff.
In UK Law non-compete clauses are nearly always considered illegal restraint of trade and unenforceable except under very specific circumstances.
If it had any grounding in law then the employer would pursue it though the courts and not by making threatening phone calls which are always illegal under the Malicious Communications Act when they cause distress. Continued it becomes Harassment.
Edited by Martin4x4 on Tuesday 3rd March 19:38
allergictocheese said:
Ignore all of this. There is no harassment as their behaviour is reasonable in asserting their contractual position.
Taking the OP as gospel, it is NOT reasonable that they have phoned "his home a couple of times in the evening and left threatening messages"It is also fairly clear from the OP that this is not a blanket non-compete clause but a restriction on poaching clients or approaching prospects.
So, taking the OP as correct, and presuming he isn't poaching clients or working off a purloined prospect database they should poke it, pretty firmly.
The calls to home were threatening to a 21 year old, my take is that they were making him aware of his obligations and there's no suggestion of malice, but it's unnecessary. I don't want to stir up a hornets nest here, employers do need to protect themselves but there are limits, he's hardly a big hitter with only 9 months under his belt.
Blue62 said:
The calls to home were threatening to a 21 year old, my take is that they were making him aware of his obligations and there's no suggestion of malice, but it's unnecessary. I don't want to stir up a hornets nest here, employers do need to protect themselves but there are limits, he's hardly a big hitter with only 9 months under his belt.
Quite. It's unlikely he's going to waltz off with some million-pound contracts, is it? It's civil law and the judge will probably decide on the balance of probabilities that the former employer is being an arse.Best thing to do at his point IMO would be to engage a solicitor and assuming they think it's a good idea, get them to write a legally worded "f
k off if you don't want me to report you to the police for harassment" letter. allergictocheese said:
Martin, you do not understand the law and you ought to stop pretending that you do.
There are statutory defences for both Harassment and Malicious Communications that ensure the prior employer commits no offence by reminding the subject here of their contractual responsibilities.
What's your view on the undertaking he's been asked to sign by his former employer?There are statutory defences for both Harassment and Malicious Communications that ensure the prior employer commits no offence by reminding the subject here of their contractual responsibilities.
Blue62 said:
What's your view on the undertaking he's been asked to sign by his former employer?
I don't have one as we haven't seen the terms of his previous contract of employment.If you work in sales in a specific industry and particularly if you sell into a particular niche in that industry it's normal to have post-termination restrictions on dealing with your old clients or trying to lure those you'd been talking to. Depending on the circumstances, restrictions on working for direct competitors for a short, fixed period are not unusual.
The idea that things are different because he's 21 as opposed to any other age is meaningless. He signed the contract and should abide by it. I presume he joined his current employer fully aware of the restrictions and that he would likely upset his previous employer.
That his old employer has been in touch and sent out demands for an undertaking suggests to me there's more to this than meets the eye. Has he approached any existing or prospective clients of his old employer on behalf of his new one?
Martin4x4 said:
allergictocheese said:
Ignore all of this. There is no harassment as their behaviour is reasonable in asserting their contractual position.
It is not malicious communication it is asserting their contractual position.
Oh, and as for the contract- you may discover it required the employee to work and then not to compete after employment terminates and, in return, the employee is given a job and a salary.
Unless badly drafted and/or and unreasonable restraint of trade the non-compete clause has every chance of being enforceable. Nothing that's been said here so far makes me think this one is duff.
You don't have a clue what you are talking about.It is not malicious communication it is asserting their contractual position.
Oh, and as for the contract- you may discover it required the employee to work and then not to compete after employment terminates and, in return, the employee is given a job and a salary.
Unless badly drafted and/or and unreasonable restraint of trade the non-compete clause has every chance of being enforceable. Nothing that's been said here so far makes me think this one is duff.
In UK Law non-compete clauses are nearly always considered illegal restraint of trade and unenforceable except under very specific circumstances.
If it had any grounding in law then the employer would pursue it though the courts and not by making threatening phone calls which are always illegal under the Malicious Communications Act when they cause distress. Continued it becomes Harassment.
Edited by Martin4x4 on Tuesday 3rd March 19:38
allergictocheese said:
don't have one as we haven't seen the terms of his previous contract of employment.
If you work in sales in a specific industry and particularly if you sell into a particular niche in that industry it's normal to have post-termination restrictions on dealing with your old clients or trying to lure those you'd been talking to. Depending on the circumstances, restrictions on working for direct competitors for a short, fixed period are not unusual.
The idea that things are different because he's 21 as opposed to any other age is meaningless. He signed the contract and should abide by it. I presume he joined his current employer fully aware of the restrictions and that he would likely upset his previous employer.
That his old employer has been in touch and sent out demands for an undertaking suggests to me there's more to this than meets the eye. Has he approached any existing or prospective clients of his old employer on behalf of his new one?
I accept his age has nothing to do with his ability to read a contract but it may have some bearing if it got as far as a court. As I now understand it, this particular company takes the same approach with all ex sales people, it's standard procedure regardless. The new employer has taken advice and their solicitor has drafted a response (the new employer was also asked to sign an undertaking that they would not induce) along the lines of if you have any evidence that he is in breach then fire away. Thanks as always If you work in sales in a specific industry and particularly if you sell into a particular niche in that industry it's normal to have post-termination restrictions on dealing with your old clients or trying to lure those you'd been talking to. Depending on the circumstances, restrictions on working for direct competitors for a short, fixed period are not unusual.
The idea that things are different because he's 21 as opposed to any other age is meaningless. He signed the contract and should abide by it. I presume he joined his current employer fully aware of the restrictions and that he would likely upset his previous employer.
That his old employer has been in touch and sent out demands for an undertaking suggests to me there's more to this than meets the eye. Has he approached any existing or prospective clients of his old employer on behalf of his new one?
Advice I had when I moved jobs with "Non-Compete" clauses was that they were very much enforceable. That came from Mischon de Reya who I believe are one of the leading Employment Lawyers in the country (as one of my former employers found out to their cost 
).
What is odd is this employer asking this lad to sign something post event. I'd imagine that either the contract is poorly drafted or more likely there is "previous" between the two companies.
). What is odd is this employer asking this lad to sign something post event. I'd imagine that either the contract is poorly drafted or more likely there is "previous" between the two companies.
johnfm said:
Oh dear. Please refrain from giving legal opinions Martin - misleading assertions merely confuse the issue and are of no help to the OP.
My post was backup by links to the relevant laws, there is plenty more proof here:uk law non-compete clause enforceable Which includes some very specific information on what is required to make them enforceable, which is essentially what I said in my first post. Consideration or reciprocity.
threatening phone calls malicious communications act
Where is your evidence of the contrary?
Edited by Martin4x4 on Wednesday 4th March 13:24
Martin4x4 said:
My post was backup by links to the relevant laws, there is plenty more proof here:
uk law non-compete clause enforceable Which includes some very specific information on what is required to make them enforceable, which is essentially what I said in my first post. Consideration or reciprocity.
threatening phone calls malicious communications act
Where is your evidence of the contrary?
For a start, you earlier linked to the malicious communications act 1988. If you read section 1 properly, you'd have seen this;uk law non-compete clause enforceable Which includes some very specific information on what is required to make them enforceable, which is essentially what I said in my first post. Consideration or reciprocity.
threatening phone calls malicious communications act
Where is your evidence of the contrary?
Edited by Martin4x4 on Wednesday 4th March 13:24
"A person is not guilty of an offence by virtue of subsection (1)(a)(ii) above if he shows—
(a) that the threat was used to reinforce a demand made by him on reasonable grounds; and
(b) that he believed, and had reasonable grounds for believing, that the use of the threat was a proper means of reinforcing the demand"
Someone calling or writing to remind a former employee of their contractual obligations in light of them joining a competitor is perfectly reasonable.
Similarly, s1 Protection From Harassment Act 1997 includes a statutory defence that the behaviour was reasonable in all the circumstances. Contacting a former employee to remind them of their contractual obligations is perfectly reasonable.
Please stop contaminating a serious thread with utter nonsense.
FrankAbagnale said:
I used to work in recruitment and it was fairly common to have this clause in our employment contracts.
The general understanding was that the clause was not enforceable, and not worth the paper it was written on. I knew of hundreds of people that changed or started companies and operated in exactly the same field without recourse from old employers. I was also told by managers at my company there was nothing they could do if an old employee started "stealing" business.
Please remember that above is based on no legal grounds, more real world experience.
Please remember that this anecdote is completely and utterly wrong. THe clauses are completely enforceable, if reasonable, and by the sound of the lunatic in the OP, they are likely to pursue an obvious breachThe general understanding was that the clause was not enforceable, and not worth the paper it was written on. I knew of hundreds of people that changed or started companies and operated in exactly the same field without recourse from old employers. I was also told by managers at my company there was nothing they could do if an old employee started "stealing" business.
Please remember that above is based on no legal grounds, more real world experience.
Martin4x4 said:
My post was backup by links to the relevant laws, there is plenty more proof here:
uk law non-compete clause enforceable Which includes some very specific information on what is required to make them enforceable, which is essentially what I said in my first post. Consideration or reciprocity.
]
But that is nothing at all like what you said up there.uk law non-compete clause enforceable Which includes some very specific information on what is required to make them enforceable, which is essentially what I said in my first post. Consideration or reciprocity.
]
You said
Martin4x4 said:
In UK Law non-compete clauses are nearly always considered illegal restraint of trade and unenforceable except under very specific circumstances.
]
You even went as far as to say that whilst rubbishing someone elses correct point. When in fact yours is nothing short of b]
ks, despite talking as if you are an authority on the subject. Your own link clearly demonstrates your statement is nonsense.blindswelledrat said:
Please remember that this anecdote is completely and utterly wrong. THe clauses are completely enforceable, if reasonable, and by the sound of the lunatic in the OP, they are likely to pursue an obvious breach
I hope you're not suggesting I am a lunatic, I will hunt you down and sue you for defamation.Just to update, this young lad has been comforted by his new employers' lawyer and advised that provided he doesn't go after any previous clients (of which there are few) he has little to worry about. Prospective clients is a nonsense and the pressure to sign an undertaking should be resisted, they have no right to make such a demand. Of course his contractual obligations apply, but only for 6 months and even then matters are not black and white. If this develops I will update.
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