Employer threatening injunction

[MrHat]

(On behalf of friend)

 

My friend has been offered a job which he has been trying to get for 6 months and is excited. It is leaving one business media company for another but with a completly different client base/industry

 

However, he needs to start in one week's time and when he resigned last week, he was hoping to negotiate an early exit. Apparently, they normally march resignees out of the office immediately so he was surprised when they told him they want him to work 4 weeks notice (as contracted).

 

He has been back to them to say he would like to work this week to complete a handover so that his clients are properly passed over to another member of staff and so no damage is done in delivering to those clients. He was thinking about simply walking but wanted to be reasonable and leave on good terms

 

Unfortunately for him, they are insisting he works 4 weeks and if he leaves early, they will get an injunction on him to stop him from joining the new comapany and also call senior management of the new company to 'have words'. Can they do these things?

 

It is worth noting that he is not a senior member of staff. This is a sales exec role.

 

I am sure that this is all aimed to scare him but wondered what the CAG advice is?

 

He know's that if he leaves early, he is in breach of contract and will lose commission & notice pay but really needs the new opportunity and the new company offered on the basis that he starts sooner.

[SweetLorraine]

I wouldn't know about injunctions Mr. Hat, but your friend is contractually tied to his present employer for the last four weeks unless they agree to part sooner. For the sake of parting on reasonable terms (and an OK reference) couldn't your friend delay the start at the new place by two weeks? The world won't stop spinning just because he starts a fortnight later - i.e. it is not a deal breaker is it? The line of least resistance would appear to be negotiating a later start date out of the new company rather than an early exit from his present employer.

[SweetLorraine]

Ah! He could fall between two stools couldn't he? Is that the worry? Resign from the present employer and fail to start at the new place because he couldn't start next week. Ergo no job in a further two weeks time.

[MrHat]

Indeed and he did tell the new place that he was confident to start on Monday. Conditional offer.

 

what is the worst that can happen if he exits early?

[SweetLorraine]

The worst? No idea I'm afraid.

 

It might be worth him simply ringing up the new place to explain the old place is (unusually) playing hardball with a resignee and insisting on the full four weeks, in theory he can't start for another fortnight..... is that OK?

 

That's your 'unknown quantity' at the moment isn't it? He knows some of the consequences from his present employer if he leaves two weeks early; but what would be the downside if he started the new job two weeks later in the new place due to factors beyond his control?

 

The new place could accommodate the issue and take the heat out of the situation. An early Xmas present?

[SweetLorraine]

If the new employer is adamant that he needs to start next Monday or the job offer will be withdrawn, then it rather looks like he would need to show up there on Monday if he wants to continue in being in employment.

 

If the new employer is sticking to their guns it might be worth going back and try bowing, scraping and begging his present employer to be more flexible.

 

If that doesn't work then it may be that he feels that his only option is to 'damn the torpedoes - full steam ahead!'

 

As to the consequences of such an action? Well the old employer may not do anything or they may seek some sort of recompense for breach of contract. Let's see, its Monday afternoon; I would still say have a word with the new employers asap. If it is still (unfortunately) game on for a new start on Monday, well I would get an appointment with an employment solicitor for this week (see if they can fit you in for a half hour), bring along any relevant documents and see if the solicitor can scope out your potential risks.

[foodandbeverage]

Injunction?

 

Is you friend a director? No?

 

Injunctions are normally for director level roles and then they are put on garden leave when they hand their notice.

 

The effort of taking out an injunction would not be worth it. As you say he is joining a company with a different client base/industry so it is not going to affect his old company.

 

Let them take out an injunction as they can pay your friend for not working. At the same time he can start working for the new company on the sly.

 

The old company can speak to whoever they want so your friend should give the new company the heads up - explain that his old employers are not too happy and if it possible to start a week maybe two later.

 

It is a bad move on his part to give a weeks notice but needs to ensure that he is not out of a job as some of the caggers have pointed out.

[steampowered]

It is impossible to get an injunction to force someone to work their notice period. As a matter of legal principle the courts do not force people to perform personal contracts. Conceptually there is such a thing as injunctions to stop people from working for competitors but these are reserved for exceptional cases where the employee has some sort of super confidential information or client contact, no way it would be granted for a junior employee. I would disregard this as a baseless threat.

 

The legal risk is that the employer sues for breach of contract. They would be awarded damages representing the difference between any loss they have suffered (e.g. lost sales or hiring an agency worker) and what they would have paid in wages. In most situations this is not a big risk since financial loss is very difficult to prove. Also the employer's legal fees would probably be bigger than the value of the claim and not recoverable from your friend (assuming small claims track).

 

The more likely risk is that the old employer will refuse to give a reference.

 

The old employer can speak to senior management of the new company if they want to. Whether the senior management will care is another matter.

[MrHat]

He has spoken to a barrister who warned him that they CAN get an emergency injunction.

[Emmzzi]

I would tend to listen to people you are paying for advice

[andydd]

For non senior level jobs i have never heard of anyone getting an injuction in such circumstances and im not sure of the legal basis. Some contracts do stop people joining a similar business this is done to stop them poaching customers and similar work.

 

It is hard to see what purpose would be gained on getting an injuction, it would cost money and for what ? Getting a few weeks worth of work out of an employee who is going to be rather unhappy and hardly work hard !, most companys wouldnt want someone like that.

 

As mentioned suing for breach is a more likely outcome BUT ive never heard of such sn outcome snd it would be hard to prove damages in excess of the wages they have saved.

 

Its hard to argue with an opinion of counsel but woulf he interesting to know his reasoning.

 

I was in same situation, i just started new job and nothing happened and they even paid my renaining waged on time.

[andydd]

Found yhis which talks about injunctions http://www.jobsite.co.uk/worklife/beware-restrictive-covenants-contract-employment-restrict-options-move-jobs-10827/ but this appears to be to stop poaching of customers and business.

[Pusillanimous]

Poaching customers and business would be barred anyway as per a clause in his employment contract.

 

I would suggest your friend notifies hiis current employer that as it is the implied terms of the employment contract that resignees leave immediately, then he is entitled to do the same, or it is a breach of contract (be sure this is true, though).

[andydd]

Poaching customers and business would be barred anyway as per a clause in his employment contract.

 

I would suggest your friend notifies hiis current employer that as it is the implied terms of the employment contract that resignees leave immediately, then he is entitled to do the same, or it is a breach of contract (be sure this is true, though).

 

Surely we don't know that, as we havnt seen the full contract, ok, it is pretty much a standard in may contracts these day but even then it must be limited to a few months and has to be a reason for it, the link I posted explains this in more detail.

[ericsbrother]

WOULD be barred? Could, if the contract says so and then the injunction could force compensation to be paid for the breach or at an extreme, where company knowledeg is being taken, then a possible contempt of the injunction to force the position of disbarring the take up of the job. However, it would be a very brave ex-employer that went down that route as they could be hit for a big counterclaim if any attempt of stopping someone earning a living went even a fraction beyond both the contract and interfered with common law rights. Plenty of employers have tried and lost because the restrictive contract was too restrictive.

The cost of an emergency injunction is about £7 grand and if you friend defends you can look at £12k legal fees for both parties. Does his employer pay him that much a month? Then they may go for a simple county court breach of contract and try and recover a month's salary but that can be batted away if the company failed to mitigate their losses.

Over all i think they are just very sore that they werent given notice and your friend made assumptions and has got their backs up. Not a good way to leave as it has undoubtedly dropped them in the mire rather and dont like it.

[steampowered]

An injunction is a discretionary remedy and, technically speaking, is available for almost anything including preventing people from working for another employer during their notice period (though injunctions are not available to force people to work their notice employer).

 

Whether an injunction would ever be granted in the case of a junior employee, and whether the employer would want to spend a significant sum of money in legal costs to get one, is a different question. The case law guidance surrounding when an injunction will be granted is very strict. I would suggest that, based on what you have posted about your friend being a junior employee working with different clients whose departure does not cause long term damage to the old employer's business, the risk of an injunction being pursued or granted is very small.

 

Obviously the barrister is in a far better position to comment than anyone here as he will have the benefit of first hand information and reading the employment contract.

[andydd]

WOULD be barred? Could, if the contract says so and then the injunction could force compensation to be paid for the breach or at an extreme, where company knowledeg is being taken, then a possible contempt of the injunction to force the position of disbarring the take up of the job. However, it would be a very brave ex-employer that went down that route as they could be hit for a big counterclaim if any attempt of stopping someone earning a living went even a fraction beyond both the contract and interfered with common law rights. Plenty of employers have tried and lost because the restrictive contract was too restrictive.

The cost of an emergency injunction is about £7 grand and if you friend defends you can look at £12k legal fees for both parties. Does his employer pay him that much a month? Then they may go for a simple county court breach of contract and try and recover a month's salary but that can be batted away if the company failed to mitigate their losses.

Over all i think they are just very sore that they werent given notice and your friend made assumptions and has got their backs up. Not a good way to leave as it has undoubtedly dropped them in the mire rather and dont like it.

 

Good points.

 

I would of thought the only real risk is that the company cant operate without someone in that role and employs a temp, perhaps on a rate slightly more than the employee was earning and claim the difference back, however this is still an unlikely scenario.

[smokejumper]

There's always a problem, but then I guess you would find that on a forum like this.

 

I would read the contract and try and find another clause for termination, there may be a way to break the contract.. Failing that he could find a reason to be sacked.

 

The part that worries me is that the confidence of the new employer might effect your friend and it looks like he's burnt his bridges with the present employer.

 

Seems like the old employer is bitter at losing him, can't see any point in holding him to ransom apart from spite. Do they really want someone to work there against their will, he could do al sorts of damage.

 

Just had another thought, what does company policy say in the contract about working at another job while off sick. After all, I think he can say goodbye to a decent reference from them.