non-solicitation of staff clauses - are they enforceable?
Discussion
We originally had a contract with a customer thru our old employer. 4 of us were then made redundant from the employer so we negotiated with our employer to take the contract with us and start up our own business.
2 months in and the said customer has poached one of us (4 of us are equal directors). Not only will we loose any future work (eg usually repeatable 10 day data consultancy projects) at this customer, he is leaving another contract and he cant be replaced. All in all we will loose minimum £50k this next 12 months and dent our ability to win work
I have copied the interesting part of our T+C's below. So questions are:
Are non-solicitation of staff clauses enforceable?
A slight arse - do we need to "officially issue" the customer with new T+C's yet. These are exactly the same as our old employers T+C's except company name change etc
"20. NON-SOLICITATION OF STAFF
20.1 The Customer shall not, and shall procure that no company in its group and no Organisational User shall, during the term of the Contract and for a period of 12 months after its expiry or termination, without the prior written agreement of the Supplier:
20.1.1 employ or offer to employ, or enter into a contract for the services of, any individual who was at any time during the Contract an officer or an employee of the Supplier holding an executive, technical or managerial position or entice, solicit or procure any such person to leave the employment of the Supplier (or attempt to do so) whether or not that person would commit any breach of contract in leaving such employment; or
20.1.2 Procure or facilitate the making of any such offer or attempt by any other person.
20.2 Any consent given by the Supplier pursuant to clause 20.1 shall be subject to the Customer paying to the Supplier a sum equivalent to [100]% of the then current annual remuneration of the relevant employee or officer or, if higher, [100]% of the annual remuneration to be paid by the Customer to that employee or officer."
2 months in and the said customer has poached one of us (4 of us are equal directors). Not only will we loose any future work (eg usually repeatable 10 day data consultancy projects) at this customer, he is leaving another contract and he cant be replaced. All in all we will loose minimum £50k this next 12 months and dent our ability to win work
I have copied the interesting part of our T+C's below. So questions are:
Are non-solicitation of staff clauses enforceable?
A slight arse - do we need to "officially issue" the customer with new T+C's yet. These are exactly the same as our old employers T+C's except company name change etc
"20. NON-SOLICITATION OF STAFF
20.1 The Customer shall not, and shall procure that no company in its group and no Organisational User shall, during the term of the Contract and for a period of 12 months after its expiry or termination, without the prior written agreement of the Supplier:
20.1.1 employ or offer to employ, or enter into a contract for the services of, any individual who was at any time during the Contract an officer or an employee of the Supplier holding an executive, technical or managerial position or entice, solicit or procure any such person to leave the employment of the Supplier (or attempt to do so) whether or not that person would commit any breach of contract in leaving such employment; or
20.1.2 Procure or facilitate the making of any such offer or attempt by any other person.
20.2 Any consent given by the Supplier pursuant to clause 20.1 shall be subject to the Customer paying to the Supplier a sum equivalent to [100]% of the then current annual remuneration of the relevant employee or officer or, if higher, [100]% of the annual remuneration to be paid by the Customer to that employee or officer."
cheeky_chops said:
We originally had a contract with a customer thru our old employer. 4 of us were then made redundant from the employer so we negotiated with our employer to take the contract with us and start up our own business.
2 months in and the said customer has poached one of us (4 of us are equal directors). Not only will we loose any future work (eg usually repeatable 10 day data consultancy projects) at this customer, he is leaving another contract and he cant be replaced. All in all we will loose minimum £50k this next 12 months and dent our ability to win work
I have copied the interesting part of our T+C's below. So questions are:
Are non-solicitation of staff clauses enforceable?
A slight arse - do we need to "officially issue" the customer with new T+C's yet. These are exactly the same as our old employers T+C's except company name change etc
"20. NON-SOLICITATION OF STAFF
20.1 The Customer shall not, and shall procure that no company in its group and no Organisational User shall, during the term of the Contract and for a period of 12 months after its expiry or termination, without the prior written agreement of the Supplier:
20.1.1 employ or offer to employ, or enter into a contract for the services of, any individual who was at any time during the Contract an officer or an employee of the Supplier holding an executive, technical or managerial position or entice, solicit or procure any such person to leave the employment of the Supplier (or attempt to do so) whether or not that person would commit any breach of contract in leaving such employment; or
20.1.2 Procure or facilitate the making of any such offer or attempt by any other person.
20.2 Any consent given by the Supplier pursuant to clause 20.1 shall be subject to the Customer paying to the Supplier a sum equivalent to [100]% of the then current annual remuneration of the relevant employee or officer or, if higher, [100]% of the annual remuneration to be paid by the Customer to that employee or officer."
Looks to me like they owe you some money!2 months in and the said customer has poached one of us (4 of us are equal directors). Not only will we loose any future work (eg usually repeatable 10 day data consultancy projects) at this customer, he is leaving another contract and he cant be replaced. All in all we will loose minimum £50k this next 12 months and dent our ability to win work
I have copied the interesting part of our T+C's below. So questions are:
Are non-solicitation of staff clauses enforceable?
A slight arse - do we need to "officially issue" the customer with new T+C's yet. These are exactly the same as our old employers T+C's except company name change etc
"20. NON-SOLICITATION OF STAFF
20.1 The Customer shall not, and shall procure that no company in its group and no Organisational User shall, during the term of the Contract and for a period of 12 months after its expiry or termination, without the prior written agreement of the Supplier:
20.1.1 employ or offer to employ, or enter into a contract for the services of, any individual who was at any time during the Contract an officer or an employee of the Supplier holding an executive, technical or managerial position or entice, solicit or procure any such person to leave the employment of the Supplier (or attempt to do so) whether or not that person would commit any breach of contract in leaving such employment; or
20.1.2 Procure or facilitate the making of any such offer or attempt by any other person.
20.2 Any consent given by the Supplier pursuant to clause 20.1 shall be subject to the Customer paying to the Supplier a sum equivalent to [100]% of the then current annual remuneration of the relevant employee or officer or, if higher, [100]% of the annual remuneration to be paid by the Customer to that employee or officer."
Go and see a decent employment law solicitor.
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