New job restrictive covenants

[Mgreen17]

Hello,

 

I am an account manager.

The account I run was recently lost by my employer.

My employer said "there is not really a lot for you to do now" and " I dont want to pay you for doing nothing".

So, obviously with a young family mortgage etc I am concerned for my livelihood.

 

It turns out the client in question liked me, but not my bosses - so the client got the company who won the account to offer me a job.

I accepted, on better pay

 

I resign, get put on gardening leave, which I sit out.

 

Start with new company, and get written too twice saying I am in breech of contract by working on the account.

My convents say. I "may not accept or solicit orders from any of my associates for a period of 6 months".

 

Now, I certainly have not solicited anyone. I have not contacted a sole outside the main account I am running (shame in a few cases as I was genuinely friendly with a few clients and I have just disappeared).

As for accepting orders - I kind of am I suppose, but I would argue that the work has been placed with my new employer at senior level and I am merely facilitating the process of seeing orders through.

 

My questions.

. Is my covent "reasonable" and therefore enforceable? I cant see how they protecting a "legitimate business interest" by stopping me working on the account?

. They have ben unable to find a signed copy of my contract - likely as I never signed it. Does this matter?

. Are they just peed off and wanting to scare me?

 

I can see how the circumstances might look fishy, and they prob suspect me of orchestrating the whole move - which is TOTALLY UNTRUE. (They have not accused me of this but I can tell they want to)...

 

Any opinions well received.

 

Kind Regards

[patrickq1]

Restraint of trade if there is no signed contract end of story they may threaten legal action but without contract and youmore or less being asked to resign your post let them waste money going to court if they dare I wouldn't lose sleep over it my opinion only but look up restraint of trade and a letter from your future employer should solve this problem as it is with a independent company you are to be employed with and not the company in whose account it is

[steampowered]

. Is my covent "reasonable" and therefore enforceable? I cant see how they protecting a "legitimate business interest" by stopping me working on the account?

Difficult to give a conclusive answer I'm afraid. I can see a legitimate business reason for not wanting you to solicit or accept orders from their customers.

 

The "accepting orders" part is more difficult. This kind of clause is given closer scrutiny than solicitation clauses, and you would normally need some sort of personal connection with the client. Six months is rather a long time and I think is probably excessive for an account manager, but I can see how it could be argued either way. To give an example, the High Court did uphold a year saying that a senior solicitor could not have any dealings with clients of her law firm for a year following termination of the contract in one case (Allan Janes LLP v Johal), which was only justified because the solicitor was recruited to be developed into a partner and was introduced to a large number of clients.

 

It is slightly difficult to advise because I do not know whether you have replicated the precise wording of the clause. I am unclear on the meaning of the word "associates" and the meaning of "accept orders". Saying you cannot "accept orders" is rather ambiguous, if it is unclear then I would take the point that you have not "accepted orders" your new employer has, and perhaps the point that this client is not an "associate". Are there any more details or are these terms defined? I would read the precise wording of the clause very carefully to see whether it covers your situation.

. They have ben unable to find a signed copy of my contract - likely as I never signed it. Does this matter?

You do not necessarily need to have actually signed the contract - if it was presented to you, then you will be deemed to have accepted the contract by starting work. However, there is an obvious problem of proof if the company is just presenting you with a piece of paper if you do not remember seeing it and you do not have a copy. I would put them to proof on this, ask the employer to prove that the contract was presented to you and that you agreed to it.

. Are they just peed off and wanting to scare me?

Probably. Its not uncommon. I've seen it a number of times but never seen it work and never seen an employer follow through. It does sometimes happen and cases are successfully brought for breach of these clauses, but most employers would not go to the trouble and expense of starting legal proceedings unless there is some good reason for them to do so.

I can see how the circumstances might look fishy, and they prob suspect me of orchestrating the whole move - which is TOTALLY UNTRUE. (They have not accused me of this but I can tell they want to)...

Yes, this will be their concern. It is worth writing back. I think the most important to emphasise is that the client's decision to move had nothing to do with you. If you can prove that even better. Even if you were in breach of the clause, if the client was going to move anyway they would not get any compensation because they have suffered no loss....

[Mgreen17]

Thanks for the replies.

 

I can of course see thats it would be legitimate to stop me soliciting their clients.

I am NOT doing this.

I ran one big account for old employer, but also 4 or 5 small ones on the side.

I HAVE NOT contacted any of these people.

Its the big account that left, and I have followed it.

 

 

Regards "accepting orders" from old clients... This I guess is where I am in breech?

 

My exact wording is "you may not for a period of 6 months after termination of employment solicit or accept orders from any of your associates held while working for the business".

 

I do not know why it uses the term "associates" rather than clients / customers?

I suspect they are trying to make the clause as broad as possible while keeping it enforceable.

Its actually a re write anyway as the first version they had essentially said "we own your whole career if you ever decide to leave".

They like to keep control!!

 

""Even if you were in breach of the clause, if the client was going to move anyway they would not get any compensation because they have suffered no loss....""

This is my thinking as well. Even if I was in breech - where is the loss to my old employer? The account has moved on.

They would be suing me for the loss of £0.

 

I have written back saying that I dont believe I am in breech of contract.

That I think its "questionable" that the covenants are enforceable.

And that the client moving had ZERO to do with me.

 

Their letters are full of inference and circumstance but no evidence, and are carful not to actually accuse me of anything.

 

I said, if you want to make an accusation please do so, and show me the evidence. Otherwise push off!

 

Been rumbling on for months now, and while there is some background worry I am just getting on with it now really.

I was very anxious at the start - but life goes on.

 

Thanks again for the comments.

[steampowered]

Yes, I agree with you.

 

We can't tell you there is no risk, there is always a chance that the employer could sue you alleging that you caused the client to move. At the end of the day anyone can sue anyone else for anything. However, it sounds unlikely that the claim would be successful. In my experience it is unusual for employers to bother with bringing claims like this unless there is an extremely good reason for doing so, it is one thing to write a stroppy letter quite another to go through the expense of actually instructing solicitors and filing a claim. I think you just have to move on with your life.

[ericsbrother]

It sound like they feel hurt that you landed on your feet. The proof they would require to get anywhere with this one is Soooo not in their favour from what you say. I would ignore them and their punctured pride.