Former employer threatens to sue

[Blue62]

Friend of my daughter works in IT sales and has recently changed jobs, his former employer is known for being aggressive and have issued a written warning to him and his new employer threatening action if he breaches his contract and approaches old clients within the next 6 months. They have issued him and his new company with an undertaking, which they are demanding both parties sign and return urgently (from what I've seen it reinforces what is in his old contract), they've also phoned his home a couple of times in the evening and left threatening messages.

This guy is barely 21 and operating at a fairly junior level, he's asked me for advice and I'm loathe to tell him to see an employment lawyer because of the cost, I would like to advise him not to sign the undertaking and ignore them on the basis that if they do pursue him they will have a hard time convincing anyone that he is in breach. Can anyone out there advise?

[Blue62]

Thanks as always. I will pass this on with the proviso that he watches his step for the next few months.

[Blue62]

Jasandjules said:

What is the exact wording of the term in the contract?

I don't have it to hand, but I remember being struck by the fact it mentioned contact with current clients and 'prospective' clients for a period of six months. Remember that this is a guy with only 9 months experience in the business, they owe him a few hundred quid commission and I suspect that if he doesn't sign their undertaking they will refuse to pay him.

So far I have advised him not to sign the undertaking and to ignore them but be careful not to contact any of his old clients for a few months, as for prospective clients I would think they have no rights whatsoever. It's a nonsense in my opinion, but wanted to check with the great and the good on PH.

[Blue62]

desolate said:

Reading the contract is, generally, quite a good place to start.

As well as the post employment restrictions it should also cover the commission situation.

In general, I wouldn't sign anything I wasn't forced to unless it was in my favour. And it does annoy me when I hear about employers using heavy handed tactics. It encourages adversarial employer/employee relations and makes life difficult for everyone.

I have read his contract but it was a few days ago and it's not in my possession, as stated this is a friend of my daughter who has approached me because I ran a business for many years before selling out.

I understand his new employers have offered help but he's a little embarrassed, he's only a kid. I cannot believe anyone would try to impose restrictions upon prospective clients, it's ludicrous, but they have the right to protect themselves but I sense this is more about not paying the poor lad what he is due. Thanks again all

[Blue62]

I understand that any longer than 6 months is pretty much unenforceable these days, his contract states 6 months. However, onerous restrictions are more normally enforced when an individual is on gardening leave, in other words being paid during the restrictive period.

[Blue62]

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]

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?

[Blue62]

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

[Blue62]

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.

[Blue62]

Mr Pointy said:

Really OP? How are you going to manage that? You can't defame a nickname & there's no information your profile to link your username to your real identity. No-one here knows who you are so your reputation hasn't been damaged.

Whoosh