Help: employment law and non-compete
Discussion
Further to this thread:
http://www.pistonheads.com/gassing/topic.asp?h=0&a...
I basically need more advice now that my previous employer has decided to take matters further.
To summarise:
- Started in April 2015, 6 months probationary period
- Things not as expected, role not very fulfilling
- Alternative company advertising position in August, applied out of interest
- Went really well, interviews attended etc - keen to start
- Notified current employer of intention to terminate employment (25th September)
- volunteered to work 1 month despite probationary period still in effect
- Explicitly notified employer of my intention to move to a competitor and implications it may have with contract, specifically asking whether they would like to enforce clause 17 of my contract (non-compete) or if we could have an amicable transition
- employer tries to encourage me to stay / reconsider, but prospects not good. Reaffirmed resignation early October.
- Nothing was said and normal duties resumed until yesterday (26th October)
- Asked to return property (company car, laptop and mobile) on 27th (today). Reassured that travel home would be compensated and I would be dropped off at the nearest train station.
- Reached office in the morning, waited around 5 hours for exit interview. Car handed over etc.
- Upon completion of exit interview presented with letter by MD, setting out their intentions to enforce non-compete and seek damages if I proceed to work for new company (scheduled start date is next Monday!)
- Utterly disgusted, asked MD why we couldn't have discussed this earlier and that I wouldn't be competing in the majority of shared interest business.
- Was escorted from premises and left to walk away in the rain!
So the last bit is kind of funny on reflection, shouldn't have trusted a word they said.
But where does this leave me? (apart from being 100 miles away from home!)
I've been nothing but upfront, honest and forthcoming about this whole situation. It's the company's fault that I'm leaving, the role is not reflective of that which was discussed during interviews and in my offer of employment and subsequent contract.
The non-compete is enforced for 12 months, during which time I cannot work for anyone in the industry in which I have been for the last 7 years. Allegedly.
Does / can this hold any water?
I'm just upset about the whole thing. I thought we had a mutual respect and understanding. Interestingly this role has had a vast turnover of employees over the last few years, none of which have been subjected to the same treatment I have. I suppose it's a compliment they see me as such a threat!
Thanks in advance for any help / advice
http://www.pistonheads.com/gassing/topic.asp?h=0&a...
I basically need more advice now that my previous employer has decided to take matters further.
To summarise:
- Started in April 2015, 6 months probationary period
- Things not as expected, role not very fulfilling
- Alternative company advertising position in August, applied out of interest
- Went really well, interviews attended etc - keen to start
- Notified current employer of intention to terminate employment (25th September)
- volunteered to work 1 month despite probationary period still in effect
- Explicitly notified employer of my intention to move to a competitor and implications it may have with contract, specifically asking whether they would like to enforce clause 17 of my contract (non-compete) or if we could have an amicable transition
- employer tries to encourage me to stay / reconsider, but prospects not good. Reaffirmed resignation early October.
- Nothing was said and normal duties resumed until yesterday (26th October)
- Asked to return property (company car, laptop and mobile) on 27th (today). Reassured that travel home would be compensated and I would be dropped off at the nearest train station.
- Reached office in the morning, waited around 5 hours for exit interview. Car handed over etc.
- Upon completion of exit interview presented with letter by MD, setting out their intentions to enforce non-compete and seek damages if I proceed to work for new company (scheduled start date is next Monday!)
- Utterly disgusted, asked MD why we couldn't have discussed this earlier and that I wouldn't be competing in the majority of shared interest business.
- Was escorted from premises and left to walk away in the rain!
So the last bit is kind of funny on reflection, shouldn't have trusted a word they said.
But where does this leave me? (apart from being 100 miles away from home!)
I've been nothing but upfront, honest and forthcoming about this whole situation. It's the company's fault that I'm leaving, the role is not reflective of that which was discussed during interviews and in my offer of employment and subsequent contract.
The non-compete is enforced for 12 months, during which time I cannot work for anyone in the industry in which I have been for the last 7 years. Allegedly.
Does / can this hold any water?
I'm just upset about the whole thing. I thought we had a mutual respect and understanding. Interestingly this role has had a vast turnover of employees over the last few years, none of which have been subjected to the same treatment I have. I suppose it's a compliment they see me as such a threat!
Thanks in advance for any help / advice
Thanks folks.
My notice period isn't specified for my probationary period, however historically others have only given a weeks' notice in the same role with no recourse, under these circumstances. My contract does stipulate 1 months' notice on completion of probationary period however. I volunteered to work this month out of good will.
I will seek proper legal advice in the morning.
My job title was Area Sales Manager, region covering north London and the home counties up to Northamptonshire and across to Oxfordshire - pretty vast.
My industry is internal timber doors, they have insisted that I don't work for another 'door company' despite this being my field for the past 7 years.
My notice period isn't specified for my probationary period, however historically others have only given a weeks' notice in the same role with no recourse, under these circumstances. My contract does stipulate 1 months' notice on completion of probationary period however. I volunteered to work this month out of good will.
I will seek proper legal advice in the morning.
My job title was Area Sales Manager, region covering north London and the home counties up to Northamptonshire and across to Oxfordshire - pretty vast.
My industry is internal timber doors, they have insisted that I don't work for another 'door company' despite this being my field for the past 7 years.
Thanks for all the posts so far.
Nothing much to report as yet, I've been doing a lot of reading, research and discussing things with my potentially-next employer.
I have yet to reach out to a solicitor directly since my future employer is seeking advice to fight my cause, so this can be a coordinated response to my ex-employers lawyers.
A friend of mine is offering impartial advice (studied / works in employment law) and a letter has been drafted up in preparation. There are several angles I can approach this situation from-
I understand that my employer must be looking to protect an LBI (Legitimate Business Interest) in order to enforce a non-compete covenant.
The LBI identified in my letter circulates around one particular customer, with whom the company had an annual supply agreement. I absorbed this customer when a colleague left the company abruptly earlier in the year (alarm bells). Interestingly, it is claimed that I have sensitive and confidential information as well as a direct contact / relationship with this customer. I've met them on 4 occasions and had less than a dozen phone conversations and email exchanges. The sensitive information I'm deemed to have been exposed to is simply forecasts of supply requirements for what is a leading housebuilding company (unsurprisingly, building lots of houses requires lots of doors - duh!). These are specified products and common knowledge. I can't see how this is something they would need to seek to protect when an agreement has already been signed?
Furthermore, I had no real 'control' over this customers account, I merely oversaw orders and tried to assist with concerns and problems. It must be relevant that this customer was long established with my previous employer long before my time with the company began?
The second LBI listed is reference to the sensitive pricing information I have been exposed to / potentially am in possession of. Now, this is a big company distributing products nationally which has a full and comprehensive price list available at merchant counters or indeed for download from their own website. It's information in the public domain, and I can't understand how this would possibly be justifiable??
Finally (sorry) there is something I've been made aware of which surrounds setting a precedence. As mentioned before, this role has a high turnover of employees for one reason or another, and I am not the first to have left in pursuit of work within the same industry. But I am the first to have my non-compete enforced.
Just this year (March) a salesmen left to join a far bigger company (with a far greater market share than the company I'm wanting to join) yet no such action was taken against him, despite the obvious direct competition links. It's flattering I suppose that they think I'm such a threat to future sales.
My start date has now been postponed until further notice, so as of Monday I'll be starting to lose out. I don't suppose there's a hope in hell I could sue for loss of earnings?
I'll keep the thread updated as things progress.
The overbearing factor for me is that I had fulfilled all of my contractual obligations and notified my employer of this job offer at the end of September (well within my probationary period). No correspondence whatsoever followed to suggest that they would seek to enforce an injunction. Suitably unreasonable was the MD's promises of expenses paid for my return journey on handover of my company car. I'll now have trust issues with anyone which I hold in a professional regard. The guy is a tw@t.
I've warned the other salesmen as I know they're all unhappy and have been to interviews for other roles. This alone should tell the company something, resolve the morale in the office instead of wasting money on this endeavour.
The saga continues...
Nothing much to report as yet, I've been doing a lot of reading, research and discussing things with my potentially-next employer.
I have yet to reach out to a solicitor directly since my future employer is seeking advice to fight my cause, so this can be a coordinated response to my ex-employers lawyers.
A friend of mine is offering impartial advice (studied / works in employment law) and a letter has been drafted up in preparation. There are several angles I can approach this situation from-
I understand that my employer must be looking to protect an LBI (Legitimate Business Interest) in order to enforce a non-compete covenant.
The LBI identified in my letter circulates around one particular customer, with whom the company had an annual supply agreement. I absorbed this customer when a colleague left the company abruptly earlier in the year (alarm bells). Interestingly, it is claimed that I have sensitive and confidential information as well as a direct contact / relationship with this customer. I've met them on 4 occasions and had less than a dozen phone conversations and email exchanges. The sensitive information I'm deemed to have been exposed to is simply forecasts of supply requirements for what is a leading housebuilding company (unsurprisingly, building lots of houses requires lots of doors - duh!). These are specified products and common knowledge. I can't see how this is something they would need to seek to protect when an agreement has already been signed?
Furthermore, I had no real 'control' over this customers account, I merely oversaw orders and tried to assist with concerns and problems. It must be relevant that this customer was long established with my previous employer long before my time with the company began?
The second LBI listed is reference to the sensitive pricing information I have been exposed to / potentially am in possession of. Now, this is a big company distributing products nationally which has a full and comprehensive price list available at merchant counters or indeed for download from their own website. It's information in the public domain, and I can't understand how this would possibly be justifiable??
Finally (sorry) there is something I've been made aware of which surrounds setting a precedence. As mentioned before, this role has a high turnover of employees for one reason or another, and I am not the first to have left in pursuit of work within the same industry. But I am the first to have my non-compete enforced.
Just this year (March) a salesmen left to join a far bigger company (with a far greater market share than the company I'm wanting to join) yet no such action was taken against him, despite the obvious direct competition links. It's flattering I suppose that they think I'm such a threat to future sales.
My start date has now been postponed until further notice, so as of Monday I'll be starting to lose out. I don't suppose there's a hope in hell I could sue for loss of earnings?
I'll keep the thread updated as things progress.
The overbearing factor for me is that I had fulfilled all of my contractual obligations and notified my employer of this job offer at the end of September (well within my probationary period). No correspondence whatsoever followed to suggest that they would seek to enforce an injunction. Suitably unreasonable was the MD's promises of expenses paid for my return journey on handover of my company car. I'll now have trust issues with anyone which I hold in a professional regard. The guy is a tw@t.
I've warned the other salesmen as I know they're all unhappy and have been to interviews for other roles. This alone should tell the company something, resolve the morale in the office instead of wasting money on this endeavour.
The saga continues...
Well got a little further with this today,managing to obtain copies of my resignation correspondence and an email I had sent earlier in the year to the directors pointing out that my job situation wasn't permitting me to function in accordance with the job description I had signed up for - it may or may not be relevant but I'm still glad I got compliance and got a copy.
The copies came from the solicitors rather than the company, which I thought was odd. I hope it cost them to use their services, since I had sent a text message (emails barred) to HR telling them they were legally obliged to send me a copy - I was only posturing as I had no idea if they were obliged to or not! (probably not I'm guessing?)
Had a reassuring phone call this evening from my potentially-next employer, who's solicitors are sending in a letter tomorrow in response to the letter I've / they've received. They want to settle this out of court and have even suggested meeting with the MD who instigated all this - since there was a previous relationship anyway and the two had historically been cross-trading!! That will surely cease if things escalate much further.
Will continue to update as I personally hate reading these sorts of threads retrospectively when they never conclude!
The copies came from the solicitors rather than the company, which I thought was odd. I hope it cost them to use their services, since I had sent a text message (emails barred) to HR telling them they were legally obliged to send me a copy - I was only posturing as I had no idea if they were obliged to or not! (probably not I'm guessing?)
Had a reassuring phone call this evening from my potentially-next employer, who's solicitors are sending in a letter tomorrow in response to the letter I've / they've received. They want to settle this out of court and have even suggested meeting with the MD who instigated all this - since there was a previous relationship anyway and the two had historically been cross-trading!! That will surely cease if things escalate much further.
Will continue to update as I personally hate reading these sorts of threads retrospectively when they never conclude!
Nothing to report yet, expect there will be news come Wednesday. We (collectively - the new company's solicitors) are sending a response on Tuesday. I'm not sure of the thinking behind this, but there must be a reason. Perhaps it is linked to the ultimatum outlined in the letter I received, which requested a response from me by Wednesday afternoon. Of course the longer this goes on, the longer I'm going unpaid / out of work. That's the stressful part!
Another hilarious point being argued is that I have 'trade secrets' which I have learned in the 6 months I've been with the company. I can hand on heart say I've learned very little about the industry. What I have learned is how not to run a large company, and the lack of productivity resultant of low morale and negative attitudes towards the company. What I know about the industry itself (doors) is solely what I've learned in the previous 7 years of working in it!
The good news is the rent is covered for the next 2 months. The bad news.is that the money had been put aside for something else...
Another hilarious point being argued is that I have 'trade secrets' which I have learned in the 6 months I've been with the company. I can hand on heart say I've learned very little about the industry. What I have learned is how not to run a large company, and the lack of productivity resultant of low morale and negative attitudes towards the company. What I know about the industry itself (doors) is solely what I've learned in the previous 7 years of working in it!
The good news is the rent is covered for the next 2 months. The bad news.is that the money had been put aside for something else...
Well, that's taken some time to read, thanks again all (particularly BV of course).
To clarify; the letter starts with a statement that they (solicitors) are acting on behalf of the new company and not me, but, if the matter persists that they should expect to be acting on my behalf also.
I have not had any direct communication with them, but at the same time the new company are very peeved at having arranged for me to have started today, want me on board and want this to go away, so they do have a great deal of interest (at the moment, of course).
Now, with regards to a plan B, I am in the fortunate position where I was actually recently offered employment in another role at yet another company. However, this would also be doing the same thing, in the same industry and potentially be considered as being in competition!
I challenged my former MD on this verbally after our very brief cowardly meeting on my last day, I asked whether working for company X would also be considered as in breach of my non-compete, the response? "Well, we would have to look into that too"
So there's two potential jobs I could start, but because this incompetent company I've had the misfortune of working for for the last 6 months are looking to make an example of me (they are well aware of the widespread dissatisfaction within the sales team) I'm completely stuck in limbo!!
Further reinforcement of my position of holding little-if-any confidential information is the fact that I never even visited the head office / factory in Portugal. This was postponed because I had a very young baby at home and subsequently got delayed, then never materialised before I'd made the decision to jump ship.
Thinking about it all just makes me angry again, I'm going to bed. Update when I get somewhere...
To clarify; the letter starts with a statement that they (solicitors) are acting on behalf of the new company and not me, but, if the matter persists that they should expect to be acting on my behalf also.
I have not had any direct communication with them, but at the same time the new company are very peeved at having arranged for me to have started today, want me on board and want this to go away, so they do have a great deal of interest (at the moment, of course).
Now, with regards to a plan B, I am in the fortunate position where I was actually recently offered employment in another role at yet another company. However, this would also be doing the same thing, in the same industry and potentially be considered as being in competition!
I challenged my former MD on this verbally after our very brief cowardly meeting on my last day, I asked whether working for company X would also be considered as in breach of my non-compete, the response? "Well, we would have to look into that too"
So there's two potential jobs I could start, but because this incompetent company I've had the misfortune of working for for the last 6 months are looking to make an example of me (they are well aware of the widespread dissatisfaction within the sales team) I'm completely stuck in limbo!!
Further reinforcement of my position of holding little-if-any confidential information is the fact that I never even visited the head office / factory in Portugal. This was postponed because I had a very young baby at home and subsequently got delayed, then never materialised before I'd made the decision to jump ship.
Thinking about it all just makes me angry again, I'm going to bed. Update when I get somewhere...
OK, response letter sent today - here's hoping we get a response before long.
With regards to precise wording, I have nothing to hide and the contract isn't marked as being confidential, so I'll copy/paste the extracts which apply below-
Now, here also is the letter from my previous employers' lawyer, which I have edited to protect identities etc.
XYZ Ltd - previous employer (enforcing non-compete)
ABC Ltd - new employer (with hope, eventually)
Housebuilder X - large London-based housebuilding company
Under the legal advice which I received I have not and will not be signing and returning the above statement as requested. I am also not obliged to provide them with any of the communications between me and company ABC Ltd, even though it would reveal just how cautious and sensitive I went about seeking their employment.
As stated at the top, a response has been penned by ABC Ltds' solicitors and will be with XYZs' solicitors today, a copy of which I'll upload in a similar manner at a later date. Or at least after dinner.
With regards to precise wording, I have nothing to hide and the contract isn't marked as being confidential, so I'll copy/paste the extracts which apply below-
Contract said:
Interperetation
Confidential Information: information in whatever form (including, without limitation, in written, oral, visual or electronic form or on any magnetic or optical disk or memory and wherever located) relating to the business, clients, customers, products, affairs and finances of the Company or any Group Company for the time being confidential to the Company or any Group Company and trade secrets including, without limitation, technical data and know-how relating to the business of the Company or of any Group Company or any of its suppliers, clients, customers, agents, distributors, shareholders or management that the Employee creates, develops, receives or obtains in connection with the Appointment, whether or not such information (if in anything other than oral form) is marked confidential.
Restricted Business: those parts of the business of the Company and any Group Company with which the Employee was involved to a material extent in the 12 months before Termination.
Restricted Customer: any firm, company or person who, during the 12 months before Termination, was a customer or prospective customer of or in the habit of dealing with the Company or any Group Company with whom the Employee had contact or about whom he became aware or informed of in the course of his employment.
Restricted Person: anyone employed or engaged by the Company or any Group Company who could materially damage the interests of the Company or any Group Company if they were involved in any Capacity in any business concern which competes with any Restricted Business and with whom the Employee dealt in the 12 months before Termination in the course of his employment.
Confidential Information: information in whatever form (including, without limitation, in written, oral, visual or electronic form or on any magnetic or optical disk or memory and wherever located) relating to the business, clients, customers, products, affairs and finances of the Company or any Group Company for the time being confidential to the Company or any Group Company and trade secrets including, without limitation, technical data and know-how relating to the business of the Company or of any Group Company or any of its suppliers, clients, customers, agents, distributors, shareholders or management that the Employee creates, develops, receives or obtains in connection with the Appointment, whether or not such information (if in anything other than oral form) is marked confidential.
Restricted Business: those parts of the business of the Company and any Group Company with which the Employee was involved to a material extent in the 12 months before Termination.
Restricted Customer: any firm, company or person who, during the 12 months before Termination, was a customer or prospective customer of or in the habit of dealing with the Company or any Group Company with whom the Employee had contact or about whom he became aware or informed of in the course of his employment.
Restricted Person: anyone employed or engaged by the Company or any Group Company who could materially damage the interests of the Company or any Group Company if they were involved in any Capacity in any business concern which competes with any Restricted Business and with whom the Employee dealt in the 12 months before Termination in the course of his employment.
Contract said:
17. POST-TERMINATION RESTRICTIONS
17.1 In order to protect the Confidential Information and business connections of the Company and each Group Company to which he has access as a result of the Employment, the Employee covenants with the Company (for itself and as trustee and agent for each Group Company) that he shall not:
(a) for twelve months after Termination, solicit or endeavour to entice away from the Company or any Group Company the business or custom of a Restricted Customer with a view to providing goods or services to that Restricted Customer in competition with any Restricted Business;
(b) for twelve months after Termination in the course of any business concern which is in competition with any Restricted Business, offer to employ or engage or otherwise endeavour to entice away from the Company or any Group Company any Restricted Person;
(c) for twelve months after Termination, be involved in any Capacity with any business concern which is (or intends to be) in competition with any Restricted Business;
(d) for twelve months after Termination, be involved with the provision of goods or services to (or otherwise have any business dealings with) any Restricted Customer in the course of any business concern which is in competition with any Restricted Business; or
(e) at any time after Termination, represent himself as connected with the Company or any Group Company in any Capacity.
17.2 None of the restrictions in clause 17.1 shall prevent the Employee from:
(a) holding an investment by way of shares or other securities of not more than 5% of the total issued share capital of any company, whether or not it is listed or dealt in on a recognised stock exchange; or
(b) being engaged or concerned in any business concern insofar as the Employee's duties or work shall relate solely to geographical areas where the business concern is not in competition with any Restricted Business; or
(c) being engaged or concerned in any business concern, provided that the Employee's duties or work shall relate solely to services or activities of a kind with which the Employee was not concerned to a material extent in the 12 months before Termination.
17.3 The restrictions imposed on the Employee by this clause 17 apply to him acting:
(a) directly or indirectly; and
(b) on his own behalf or on behalf of, or in conjunction with, any firm, company or person.
17.4 The period for which the restrictions in clause 17 apply shall be reduced by any period that the Employee spends on Garden Leave immediately before Termination.
17.5 If the Employee receives an offer to be involved in a business concern in any Capacity during the Employment, or before the expiry of the last of the covenants in this clause 17, the Employee shall give the person making the offer a copy of this clause 17 and shall tell the Company the identity of that person as soon as possible after accepting the offer.
17.6 If, at any time during the Employee's employment, two or more Restricted Persons have left their employment, appointment or engagement with the Company to perform Restricted Business for a business concern which is, or intends to be, in competition with any Restricted Business, the Employee will not at any time during the twelve months following the last date on which any of those Restricted Persons were employed or engaged by the Company, be employed or engaged in any way with that business concern under which the Employee will perform Restricted Business on the behalf of that business concern.
17.7 Each of the restrictions in this clause 17 is intended to be separate and severable. If any of the restrictions shall be held to be void but would be valid if part of their wording were deleted, such restriction shall apply with such deletion as may be necessary to make it valid or effective.
17.8 The Employee will, at the request and expense of the Company, enter into a separate agreement with any Group Company in which he agrees to be bound by restrictions corresponding to those restrictions in this clause 17 (or such of those restrictions as may be appropriate) in relation to that Group Company.
Now that seems far too generic to me, but IANAL and all that.17.1 In order to protect the Confidential Information and business connections of the Company and each Group Company to which he has access as a result of the Employment, the Employee covenants with the Company (for itself and as trustee and agent for each Group Company) that he shall not:
(a) for twelve months after Termination, solicit or endeavour to entice away from the Company or any Group Company the business or custom of a Restricted Customer with a view to providing goods or services to that Restricted Customer in competition with any Restricted Business;
(b) for twelve months after Termination in the course of any business concern which is in competition with any Restricted Business, offer to employ or engage or otherwise endeavour to entice away from the Company or any Group Company any Restricted Person;
(c) for twelve months after Termination, be involved in any Capacity with any business concern which is (or intends to be) in competition with any Restricted Business;
(d) for twelve months after Termination, be involved with the provision of goods or services to (or otherwise have any business dealings with) any Restricted Customer in the course of any business concern which is in competition with any Restricted Business; or
(e) at any time after Termination, represent himself as connected with the Company or any Group Company in any Capacity.
17.2 None of the restrictions in clause 17.1 shall prevent the Employee from:
(a) holding an investment by way of shares or other securities of not more than 5% of the total issued share capital of any company, whether or not it is listed or dealt in on a recognised stock exchange; or
(b) being engaged or concerned in any business concern insofar as the Employee's duties or work shall relate solely to geographical areas where the business concern is not in competition with any Restricted Business; or
(c) being engaged or concerned in any business concern, provided that the Employee's duties or work shall relate solely to services or activities of a kind with which the Employee was not concerned to a material extent in the 12 months before Termination.
17.3 The restrictions imposed on the Employee by this clause 17 apply to him acting:
(a) directly or indirectly; and
(b) on his own behalf or on behalf of, or in conjunction with, any firm, company or person.
17.4 The period for which the restrictions in clause 17 apply shall be reduced by any period that the Employee spends on Garden Leave immediately before Termination.
17.5 If the Employee receives an offer to be involved in a business concern in any Capacity during the Employment, or before the expiry of the last of the covenants in this clause 17, the Employee shall give the person making the offer a copy of this clause 17 and shall tell the Company the identity of that person as soon as possible after accepting the offer.
17.6 If, at any time during the Employee's employment, two or more Restricted Persons have left their employment, appointment or engagement with the Company to perform Restricted Business for a business concern which is, or intends to be, in competition with any Restricted Business, the Employee will not at any time during the twelve months following the last date on which any of those Restricted Persons were employed or engaged by the Company, be employed or engaged in any way with that business concern under which the Employee will perform Restricted Business on the behalf of that business concern.
17.7 Each of the restrictions in this clause 17 is intended to be separate and severable. If any of the restrictions shall be held to be void but would be valid if part of their wording were deleted, such restriction shall apply with such deletion as may be necessary to make it valid or effective.
17.8 The Employee will, at the request and expense of the Company, enter into a separate agreement with any Group Company in which he agrees to be bound by restrictions corresponding to those restrictions in this clause 17 (or such of those restrictions as may be appropriate) in relation to that Group Company.
Now, here also is the letter from my previous employers' lawyer, which I have edited to protect identities etc.
XYZ Ltd - previous employer (enforcing non-compete)
ABC Ltd - new employer (with hope, eventually)
Housebuilder X - large London-based housebuilding company
Non Compete Letter said:
OUR CLIENT: XYZ LTD
We are instructed by XYZ Ltd of {company address removed} regarding your proposed employment by ABC Ltd following your resignation from our client on 29th September 2015.
You were employed by XYZ Ltd as Specification Sales Person and were in effect XYZ's
Area Sales Manager for London and the Southeast. You were the main point of contact between XYZ and most of its customers in your area. You also had a particularly important relationship with Housebuilder X for that companys requirements nationwide. Accordingly you have knowledge of the requirements of XYZ's customers including Housebuilder Xs' requirements for the next twelve months. You also have full information as to all of XYZ's costs and pricing structures for its products, not only for your own area but nationwide. The contacts and information you have as a result of your employment by XYZ are obviously highly sensitive and valuable to XYZ and would also be extremely valuable to XYZ's competitors. Use of such contacts and/or information by a competitor carries obvious risk of serious damage to XYZ's business interests.
You remain subject to obligations to XYZ Ltd as set out in your contract of employment (Contract) dated 9th March 2015, a copy of which we enclose.
This letter is being sent to you in accordance with the Practice Direction on Pre-action Conduct and Protocols (PDPACP) contained in the Civil Procedure Rules (CPR). In particular, we refer you to paragraph 4 of the PDPACP concerning the court's powers to impose sanctions for failing to comply with its provisions. Ignoring this letter may lead to our client commencing proceedings against you and may increase your liability for costs
YOUR OBLIGATIONS TO XYZ LTD
As you should already be aware, you are under the following contractual obligations:
{Contract extracts removed as quoted above}
You also have a common law duty of confidentiality to XYZ Ltd.
BREACH OF OBLIGATIONS
You have informed our client that you intend to take up employment with ABC Ltd. This company is a competitor with XYZ Ltd including (but not necessarily only) in regard to supply of door sets and other products marketed by XYZ to the same customer base that you have been dealing with during your employment with XYZ. This is business with which you have been involved to a material extent in the last twelve months. It is "Restricted Business" as defined in your Contract.
Your employment with ABC Ltd is also highly likely to involve use of Confidential Information both as defined in your Contract and/or at common law. It is highly likely to lead to a breach of your obligations of confidentiality to our client pursuant to your Contract and/or at common law.
Please note that our client's investigations are ongoing.
We refer you to the restrictive covenants at clause 17 of your Contract. Your employment by ABC Ltd in a competitive role would be a breach of this clause. You have not been released, and will not be released, by XYZ Ltd from the terms of your Contract.
CONTRACTUAL UNDERTAKINGS
XYZ Ltd therefore requires you to give undertakings in the form attached. Unless these undertakings are received by 4pm on November 2015, our client will have no alternative but to consider appropriate action to protect its interests, including an application to the court for immediate relief and its legal costs, without further notice to you.
RELEVANT DOCUMENTS
You are reminded that under your Contract all Confidential Information and copies thereof are the property of XYZ Ltd and you are obliged upon request to hand over the same of XYZ Ltd and also to irretrievably delete any confidential information stored on any magnetic or optical disk or memory, including personal computer networks, personal email accounts or personal accounts on websites, and all matter derived from such sources which is in your possession or under your control outside the Company's premises. You are hereby requested to comply with these obligations.
In accordance with the PDPACP contained in the Civil Procedure Rules (CPR), please provide to us by 4pm on November 2015 copies of the following documents, which are relevant to this matter and are likely to be in your possession or control:
All communications between yourself and ABC Ltd
This does not purport to be an exhaustive list of relevant documents.
You SHOULD TAKE LEGAL ADVICE
You should take legal advice on this letter as a matter of urgency.
We await hearing from you by 4pm on 4th November 2015. In the meantime, all of our client's rights are reserved.
Yours faithfully
XYZ's Solicitors LLP
Letter which was attached and was requested to be signed and returned -We are instructed by XYZ Ltd of {company address removed} regarding your proposed employment by ABC Ltd following your resignation from our client on 29th September 2015.
You were employed by XYZ Ltd as Specification Sales Person and were in effect XYZ's
Area Sales Manager for London and the Southeast. You were the main point of contact between XYZ and most of its customers in your area. You also had a particularly important relationship with Housebuilder X for that companys requirements nationwide. Accordingly you have knowledge of the requirements of XYZ's customers including Housebuilder Xs' requirements for the next twelve months. You also have full information as to all of XYZ's costs and pricing structures for its products, not only for your own area but nationwide. The contacts and information you have as a result of your employment by XYZ are obviously highly sensitive and valuable to XYZ and would also be extremely valuable to XYZ's competitors. Use of such contacts and/or information by a competitor carries obvious risk of serious damage to XYZ's business interests.
You remain subject to obligations to XYZ Ltd as set out in your contract of employment (Contract) dated 9th March 2015, a copy of which we enclose.
This letter is being sent to you in accordance with the Practice Direction on Pre-action Conduct and Protocols (PDPACP) contained in the Civil Procedure Rules (CPR). In particular, we refer you to paragraph 4 of the PDPACP concerning the court's powers to impose sanctions for failing to comply with its provisions. Ignoring this letter may lead to our client commencing proceedings against you and may increase your liability for costs
YOUR OBLIGATIONS TO XYZ LTD
As you should already be aware, you are under the following contractual obligations:
{Contract extracts removed as quoted above}
You also have a common law duty of confidentiality to XYZ Ltd.
BREACH OF OBLIGATIONS
You have informed our client that you intend to take up employment with ABC Ltd. This company is a competitor with XYZ Ltd including (but not necessarily only) in regard to supply of door sets and other products marketed by XYZ to the same customer base that you have been dealing with during your employment with XYZ. This is business with which you have been involved to a material extent in the last twelve months. It is "Restricted Business" as defined in your Contract.
Your employment with ABC Ltd is also highly likely to involve use of Confidential Information both as defined in your Contract and/or at common law. It is highly likely to lead to a breach of your obligations of confidentiality to our client pursuant to your Contract and/or at common law.
Please note that our client's investigations are ongoing.
We refer you to the restrictive covenants at clause 17 of your Contract. Your employment by ABC Ltd in a competitive role would be a breach of this clause. You have not been released, and will not be released, by XYZ Ltd from the terms of your Contract.
CONTRACTUAL UNDERTAKINGS
XYZ Ltd therefore requires you to give undertakings in the form attached. Unless these undertakings are received by 4pm on November 2015, our client will have no alternative but to consider appropriate action to protect its interests, including an application to the court for immediate relief and its legal costs, without further notice to you.
RELEVANT DOCUMENTS
You are reminded that under your Contract all Confidential Information and copies thereof are the property of XYZ Ltd and you are obliged upon request to hand over the same of XYZ Ltd and also to irretrievably delete any confidential information stored on any magnetic or optical disk or memory, including personal computer networks, personal email accounts or personal accounts on websites, and all matter derived from such sources which is in your possession or under your control outside the Company's premises. You are hereby requested to comply with these obligations.
In accordance with the PDPACP contained in the Civil Procedure Rules (CPR), please provide to us by 4pm on November 2015 copies of the following documents, which are relevant to this matter and are likely to be in your possession or control:
All communications between yourself and ABC Ltd
This does not purport to be an exhaustive list of relevant documents.
You SHOULD TAKE LEGAL ADVICE
You should take legal advice on this letter as a matter of urgency.
We await hearing from you by 4pm on 4th November 2015. In the meantime, all of our client's rights are reserved.
Yours faithfully
XYZ's Solicitors LLP
Letter Attachment said:
Undertakings by PH user C.A.R.
I PH user C.A.R. hereby undertake .
1. In reference to Confidential Information as defined in my Contract of Employment with XYZ Ltd dated March 2015 (my Contract):
a] Not to use any Confidential Information or make or use any Copies as defined in my Contract or to disclose any Confidential Information to any person, company or other organisation whatsoever (except as may be required by law).
b] To use my best endeavours to prevent the use or communication of any Confidential Information by any person, company or organisation (except as may be required by law).
c] To inform XYZ Ltd immediately on becoming aware, or suspecting, that any other person, company or organisation knows or has used any Confidential Information.
d] To immediately deliver to XYZ Ltd all Confidential Information or Copies in my possession or control.
e] To immediately and irretrievably delete any Confidential Information stored on any magnetic or optical disk or memory, including personal computer networks, personal email accounts or personal accounts on websites, and all matter derived from such sources which is in my possession or under my control outside the premises of XYZ Ltd and to provide a signed statement that I have done so.
2. Not to accept employment by ABC Ltd or any associated business entity and if such employment has already been accepted then to resign forthwith.
3. For twelve months after termination of my employment with XYZ Ltd not to solicit or endeavour to entice away from XYZ Ltd the business or custom of a Restricted Customer as defined in my Contract with a view to providing goods or services to that Restricted Customer in competition with any Restricted Business as defined in my Contract.
4. For twelve months after termination of my employment XYZ not to be involved in any Capacity as defined in my Contract with any business concern which is (or intends to be) in competition with any Restricted Business.
5. For twelve months after termination of my employment with XYZ Ltd not to be involved with the provision of goods or services to (or otherwise have any business dealings with) any Restricted Customer in the course of any business concern which is in competition with any Restricted Business.
6. Not to represent myself as connected with XYZ Ltd in any capacity
The twelve month period referred to in these undertakings is less any period of garden leave.
Sign and return
Now you have everything I have, so you can have a nice, long, boring read of it all!I PH user C.A.R. hereby undertake .
1. In reference to Confidential Information as defined in my Contract of Employment with XYZ Ltd dated March 2015 (my Contract):
a] Not to use any Confidential Information or make or use any Copies as defined in my Contract or to disclose any Confidential Information to any person, company or other organisation whatsoever (except as may be required by law).
b] To use my best endeavours to prevent the use or communication of any Confidential Information by any person, company or organisation (except as may be required by law).
c] To inform XYZ Ltd immediately on becoming aware, or suspecting, that any other person, company or organisation knows or has used any Confidential Information.
d] To immediately deliver to XYZ Ltd all Confidential Information or Copies in my possession or control.
e] To immediately and irretrievably delete any Confidential Information stored on any magnetic or optical disk or memory, including personal computer networks, personal email accounts or personal accounts on websites, and all matter derived from such sources which is in my possession or under my control outside the premises of XYZ Ltd and to provide a signed statement that I have done so.
2. Not to accept employment by ABC Ltd or any associated business entity and if such employment has already been accepted then to resign forthwith.
3. For twelve months after termination of my employment with XYZ Ltd not to solicit or endeavour to entice away from XYZ Ltd the business or custom of a Restricted Customer as defined in my Contract with a view to providing goods or services to that Restricted Customer in competition with any Restricted Business as defined in my Contract.
4. For twelve months after termination of my employment XYZ not to be involved in any Capacity as defined in my Contract with any business concern which is (or intends to be) in competition with any Restricted Business.
5. For twelve months after termination of my employment with XYZ Ltd not to be involved with the provision of goods or services to (or otherwise have any business dealings with) any Restricted Customer in the course of any business concern which is in competition with any Restricted Business.
6. Not to represent myself as connected with XYZ Ltd in any capacity
The twelve month period referred to in these undertakings is less any period of garden leave.
Sign and return
Under the legal advice which I received I have not and will not be signing and returning the above statement as requested. I am also not obliged to provide them with any of the communications between me and company ABC Ltd, even though it would reveal just how cautious and sensitive I went about seeking their employment.
As stated at the top, a response has been penned by ABC Ltds' solicitors and will be with XYZs' solicitors today, a copy of which I'll upload in a similar manner at a later date. Or at least after dinner.
Well, I'll reiterate that the information being fed to me via my old friend is advice that has served to reassure me and is completely off the record, even though he is qualified in whatever field it is which this relates to (please excuse my ignorance!). I have not, and will not act on any of this advice.
The other advice I have sought so far has been via company ABCs Solicitors, who did also state that they would expect to act on my behalf if this continued. In my financial position I saw little more to gain from seeking my own direct advice when this has been provided for me by company ABC, especially if it is something which I wish (at this stage at least) for company ABC and XYZ to resolve amicably between themselves so I can begin my employment with company ABC.
Now, to break down their letter a little bit -
As much as I'd love to send a response like that to my previous employer, that is not what has been provided. I will upload a copy [edited] of this response letter tomorrow for those interested.
The other advice I have sought so far has been via company ABCs Solicitors, who did also state that they would expect to act on my behalf if this continued. In my financial position I saw little more to gain from seeking my own direct advice when this has been provided for me by company ABC, especially if it is something which I wish (at this stage at least) for company ABC and XYZ to resolve amicably between themselves so I can begin my employment with company ABC.
Now, to break down their letter a little bit -
Legal letter said:
You were the main point of contact between XYZ and most of its customers in your area.
False. I had no customer database insofar as contact details / addresses / individuals. All that has been provided to me since I began my employment was a list of customers and account numbers nationwide, some of which were obsolete. It was less of a tool for obtaining details as it was to check whether someone already had an account or not. I don't have a copy of this available to me any more (to be honest, it was so poorly written it wasn't worth nicking for any purpose anyway).Legal letter said:
You also had a particularly important relationship with Housebuilder X for that companys requirements nationwide.
Double False. I absorbed this customer after the salesman previously looking after the account suddenly quit his job in June 2015. Upon which I met with this customer only twice during my employment. Another false statement would be knowledge of their requirements nationwide - company XYZ don't deal with Housebuilder X nationwide, it is restricted to the London area. I have seen this information, yes, however it is common sense that a large housebuilder in the capital is going to require lots of doors. Knowledge of exactly how many is irrelevant. Again, I have not got access to this information any longer, and I cannot see what possible use it would have been to me in the future regardless.Legal letter said:
Accordingly you have knowledge of the requirements of XYZ's customers including Housebuilder Xs' requirements for the next twelve months.
As before, yes, lots of doors. Obviously. These are specified products under an annual supply contract which company XYZ signed up to, so unless they are freely admitting that they are unlikely to be able to service this level of commitment and are already in fear of the competition, then they should have no concerns until at least the end of 2016 when this contract has expired. Further evidence that I was not managing this account would be that I was not privvy to this email correspondence in setting up this contract / supply commitment, but did compose the email - because my MD and the Commercial Director did not have the competance to write such a response. My draft of this email was then underwritten by my MD and I was excluded from the outgoing communications. I was therefore just an intermediary dealing with Housebuilder X's account, rather than managing it.Legal letter said:
You also have full information as to all of XYZ's costs and pricing structures for its products, not only for your own area but nationwide.
One would assume this refers to the account database mentioned above. However, pricing of company XYZ's products is public knowledge and can be downloaded without registration at their own website, or obtained in hardcopy from a local builders merchant. Knowing what discount each customer was entitled to (and remembering it) is hardly confidential and furthermore it is naturally consistent with discount structures for other products in the building industry insofar as merchants receiving greater discounts than contractors / end users. It is not and should not be considered confidential information. Legal letter said:
The contacts and information you have as a result of your employment by XYZ are obviously highly sensitive and valuable to XYZ and would also be extremely valuable to XYZ's competitors. Use of such contacts and/or information by a competitor carries obvious risk of serious damage to XYZ's business interests.
I met very few 'new' contacts in my time with company XYZ, many customers I had an existing knowledge of from my employment in the last 7 years within the industry. Those which have been identified as 'sensitive' (ie. Housebuilder X) I am happy to avoid direct communication with for the next 12 months as I do not feel this would prevent me from being able to function in my new role. However, aside from Housebuilder X, company XYZ has not identified which other customers it sees as being sensitive / valuable, and it would be impertinent to consider all customers within company XYZ's account database as being as such. I would also not be aware of this group of "protected" customers without company XYZ first providing me with a list of their details. As much as I'd love to send a response like that to my previous employer, that is not what has been provided. I will upload a copy [edited] of this response letter tomorrow for those interested.
Breadvan72 said:
This, I am afraid, suggests that your friend is probably not up to the job. A competent litigator would advise you that you do have to disclose key documents in accordance with the Civil Procedure Rules Practice Direction on pre action conduct.
That advice did not come from my friend, that came from insured legal advice via the new company "ABC"...Whilst I have no qualms for sending every last bit of correspondence I have, being honest and open hasn't worked particularly in my favour over the last 7 days, so I'm happy to take their advice on this one.
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.
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.
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.
No real developments of late.
I've spoken again to the new employer who has filled me in on what their solicitors has taken from the situation. There are several factors which weaken their case;
- The provision of a 'best of luck in the future' letter sent in response to my request to discuss the non-compete covenant and confirming my resignation. This will be viewed as an official response and indicates that there was later a change of heart, as it suggests no further action would be taken.
- Despite being asked to present one, the old employer hasn't been able to identify a list of customers it wants me to avoid contact with for the 12 months, leaving the scope too wide to be considered reasonable / a legitimate business interest worthy of protection.
-The lack of response and the wording of the latest correspondence suggests that there is room for negotiation, it's not anywhere near as threatening as previous letters. The solicitor acting on my behalf thinks this shows a lack of confidence in their own cause, and that they do not wish to take it to court.
The planned discussion between both parties has not yet taken place, but a voicemail was left today. Whether the call will be returned or if the correspondence gets referred to the solicitors will identify how serious they are about imposing the restriction in its current form. If they do refer contact via their solicitors, I'll be making a call about a job I was offered earlier this week. Same industry, but not a competitor and could not be considered as such. The problem will be the startup time, as it's a new role which I may not be able to start immediately.
Finally, I've drafted up a letter to my previous MD, requesting reimbursement of my travel costs on my last day. As someone else recently pointed out to me, I paid company car tax for the calendar month on the company vehicle, but returned it at their request 5 days before the end of the month. That, plus of course the principle of keeping to his word, as the costs of this travel were promised to me beforehand, else I would've made other travel arrangements. In the letter, I wish him and his family well and excuse him for the situation, as I now understand it was not his decision to 'go legal'. I'd prefer to look back on my employment with fondness, rather than have it left with a sour taste.
Here's hoping for a swift resolution or at the very least, a response.
I've spoken again to the new employer who has filled me in on what their solicitors has taken from the situation. There are several factors which weaken their case;
- The provision of a 'best of luck in the future' letter sent in response to my request to discuss the non-compete covenant and confirming my resignation. This will be viewed as an official response and indicates that there was later a change of heart, as it suggests no further action would be taken.
- Despite being asked to present one, the old employer hasn't been able to identify a list of customers it wants me to avoid contact with for the 12 months, leaving the scope too wide to be considered reasonable / a legitimate business interest worthy of protection.
-The lack of response and the wording of the latest correspondence suggests that there is room for negotiation, it's not anywhere near as threatening as previous letters. The solicitor acting on my behalf thinks this shows a lack of confidence in their own cause, and that they do not wish to take it to court.
The planned discussion between both parties has not yet taken place, but a voicemail was left today. Whether the call will be returned or if the correspondence gets referred to the solicitors will identify how serious they are about imposing the restriction in its current form. If they do refer contact via their solicitors, I'll be making a call about a job I was offered earlier this week. Same industry, but not a competitor and could not be considered as such. The problem will be the startup time, as it's a new role which I may not be able to start immediately.
Finally, I've drafted up a letter to my previous MD, requesting reimbursement of my travel costs on my last day. As someone else recently pointed out to me, I paid company car tax for the calendar month on the company vehicle, but returned it at their request 5 days before the end of the month. That, plus of course the principle of keeping to his word, as the costs of this travel were promised to me beforehand, else I would've made other travel arrangements. In the letter, I wish him and his family well and excuse him for the situation, as I now understand it was not his decision to 'go legal'. I'd prefer to look back on my employment with fondness, rather than have it left with a sour taste.
Here's hoping for a swift resolution or at the very least, a response.
Good news.
It's been very quiet over the last week waiting for communication from my ex employer but we've finally had a breakthrough. Realising their case was weak and unlikely to be upheld if it ever got to court, they have revised the restrictions they wish to impose which effectively releases me from my contract leaving me free to work for the new employer. I was expecting a list of restricted customers but nothing has been defined as yet, just the vague description of 'restrictive business'. I'm more than happy for it to remain as vague as that!
It dragged out for 3 weeks in the end, which has been costly but won't see us go without, all it has done is scale back our plans for Christmas presents for our children and meant a delay to our July 2017 wedding. Could have gone worse.
I'll start with my new employer next week. Fortunately, the 'doom and gloom' touted on this thread was just speculation and a concise, coordinated response to the situation got the result in the end, without any legal costs my end. My only regret is that I hadn't got my previous director to put into writing their intentions to not enforce the restrictive covenant, instead putting my trust in them and taking their word for it.
Thanks all for your input.
It's been very quiet over the last week waiting for communication from my ex employer but we've finally had a breakthrough. Realising their case was weak and unlikely to be upheld if it ever got to court, they have revised the restrictions they wish to impose which effectively releases me from my contract leaving me free to work for the new employer. I was expecting a list of restricted customers but nothing has been defined as yet, just the vague description of 'restrictive business'. I'm more than happy for it to remain as vague as that!
It dragged out for 3 weeks in the end, which has been costly but won't see us go without, all it has done is scale back our plans for Christmas presents for our children and meant a delay to our July 2017 wedding. Could have gone worse.
I'll start with my new employer next week. Fortunately, the 'doom and gloom' touted on this thread was just speculation and a concise, coordinated response to the situation got the result in the end, without any legal costs my end. My only regret is that I hadn't got my previous director to put into writing their intentions to not enforce the restrictive covenant, instead putting my trust in them and taking their word for it.
Thanks all for your input.
Sorry, it wasn't supposed to come across in any way dismissive or ungrateful in terms of the advice received. Please understand that I've been rather overwhelmed with being able to set a start date for my new job, which has been a huge relief.
With regards to the terminology 'restricted business' this literally translates as something which they deem to be in direct competition with, either customer or project specific. This shouldn't be problematic for me, as the majority of my 'patch' is rather un-specified and with no clear preference of suppliers, leaving the door wide open if you excuse the pun.
I have received a letter from the solicitors basically asking whether the intended revisions to my undertaking would be acceptable, to which I have replied yes they would. I now await them to put something more formal together for me to sign and return.
Happy days.
With regards to the terminology 'restricted business' this literally translates as something which they deem to be in direct competition with, either customer or project specific. This shouldn't be problematic for me, as the majority of my 'patch' is rather un-specified and with no clear preference of suppliers, leaving the door wide open if you excuse the pun.
I have received a letter from the solicitors basically asking whether the intended revisions to my undertaking would be acceptable, to which I have replied yes they would. I now await them to put something more formal together for me to sign and return.
Happy days.
Thanks - I think! - for the support, response and advice along the way. To clarify a few points;
I had the advice of seeking legal advice time and time again. In my position, earning just over 30k with no assets and a family to support, the only savings I had were to the sum of about £1K. To put that into perspective, it costs me around £1100 a month in bills to live where I live, before I've fed myself and the tribe. I do not (contrary to popular PH belief) have a load of monthly subscriptions / outgoings which dominate the rest of my wages!
With that in mind, the prospect of a £300, non-recoverable upfront cost to have an employment lawyer look at my case was somewhat troubling. So my immediate thought process was; what could I hope to achieve by doing that?
I won't get compensation for my losses and I would have lost out an awful lot more in loss of earnings if I'd have put up a fight and waited around for a court date, which I might have won, or had the opposition back down at the final moment, as is so often the case. How much money and time would that have wasted?
The best outcome for me was the ability to start working for this new company as soon as possible. The way of making that happen was to create the situation where both parties could discuss things openly, away from the solicitors chit chat which lasts days waiting for replies from either party.
That's the other side of the story too of course; the new company had a solicitor on board already fighting their (effectively my) case, so why invest in my own lawyer? That opportunity had sadly been and gone by the time I was issued with my first letter.
What I should have done, in hindsight, was that once the old employer had agreed to let me go without serving any form of restrictive covenant I should have got this in writing, rather than taking their word. What happened was clearly a change of heart, which we now know (through another source) was instigated by part of the foreign half of the company, who were investigating the sharp decline in staff and requested that this action be taken. I genuinely feel that my old boss felt worse than I did that day, and I feel that I could forgive the actions he was forced to take as they were clearly not his intentions.
The best part is that I'm back to work and have learned a lot of important "life lessons" if you will.
I had the advice of seeking legal advice time and time again. In my position, earning just over 30k with no assets and a family to support, the only savings I had were to the sum of about £1K. To put that into perspective, it costs me around £1100 a month in bills to live where I live, before I've fed myself and the tribe. I do not (contrary to popular PH belief) have a load of monthly subscriptions / outgoings which dominate the rest of my wages!
With that in mind, the prospect of a £300, non-recoverable upfront cost to have an employment lawyer look at my case was somewhat troubling. So my immediate thought process was; what could I hope to achieve by doing that?
I won't get compensation for my losses and I would have lost out an awful lot more in loss of earnings if I'd have put up a fight and waited around for a court date, which I might have won, or had the opposition back down at the final moment, as is so often the case. How much money and time would that have wasted?
The best outcome for me was the ability to start working for this new company as soon as possible. The way of making that happen was to create the situation where both parties could discuss things openly, away from the solicitors chit chat which lasts days waiting for replies from either party.
That's the other side of the story too of course; the new company had a solicitor on board already fighting their (effectively my) case, so why invest in my own lawyer? That opportunity had sadly been and gone by the time I was issued with my first letter.
What I should have done, in hindsight, was that once the old employer had agreed to let me go without serving any form of restrictive covenant I should have got this in writing, rather than taking their word. What happened was clearly a change of heart, which we now know (through another source) was instigated by part of the foreign half of the company, who were investigating the sharp decline in staff and requested that this action be taken. I genuinely feel that my old boss felt worse than I did that day, and I feel that I could forgive the actions he was forced to take as they were clearly not his intentions.
The best part is that I'm back to work and have learned a lot of important "life lessons" if you will.
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