Litigation Solicitor - Recommendation

[AB]

I will keep this fairly short. Someone who works for me has had a letter from previous employment threatening legal action over their 12 month non-compete/solicitation. I'm fairly sure it's aimed at sh*tting him up a bit. There is some business we have been given after previous customers approached us, well me actually, as they have known him a long time and wished him to quote for the work.

I need someone to have a glance over the letter and offer their opinion if at all possible? I'm not asking for a freebie but if anyone works in the field or can point me in the right direction, I'll happily pay for their time and advice, even if off the record.

Cheers

[AB]

I guess firstly, we need to know if they can demand this of him. He left just under 6 months ago.

[anonymous-user]

This is straightforward. You need to speak to a solicitor who specialises in employment law.

You also need to ignore anybody who says ignore.

[AB]

Thanks, OK same applies, any recommendations?

[anonymous-user]

I'm northern (Leeds) and used Morrish before as experts acting for defendants but not sure if they act for companies in addition to individuals and trade unions.

[Panamax]

AB said:

There is some business we have been given after previous customers approached us, well me actually, as they have known him a long time and wished him to quote for the work.

If you both believe you are squeaky clean there's no need to respond at all. If you do respond they will know they've opened a line of communication - whereas silence leaves them guessing and the ball stays firmly in their court.

You say these previous customers approached YOU because they had previous dealings with HIM. Did this genuinely pop up out of the blue or has he said to them on the side "I'm now at xyz ltd and we'd love to deal with you - everything will be fine so long as you get in touch with my boss and make it look as though I've not been involved". Because one thing's for sure, if these customers get any flak they are NOT going to stick up for you. They will just tell the truth. They have no legal exposure.

"Customer lists" are one of relatively few things that actually can be protected by a non-compete clause.

Again, the key point is to say nothing. Definitely say absolutely nothing without detailed legal advice because the wording of the non-compete clauses is critical, the nature of the business is critical and the detail of how the contact was established is critical.

The bottom line is that it's very difficult to prevent a former employee from using their skills in a new job, but you can definitely stop a former employee exploiting your proprietory business information, which includes customer lists.

as you say, it could just be a "shot across the bows" to make sure you "keep off the grass". It costs them very little to send that letter, receiving that sort of letter should definitely focus your attention, but for them to actually step up and begin legal action could land them in a whole world of pain unless they think they have you bang to rights.

[ATG]

It might be worth using this as an opportunity to establish a relationship with a firm of solicitors so that you've always got someone to turn to for legal advice in the future. Perhaps your accountant can recommend a firm?

[TownIdiot]

You really need to know what the employment contract said
And if they have nicked any confidential information.

[AB]

Thanks for the advice, I did send a copy of the letter to my accountant and ask his advice re a solicitor, he's getting back to me tomorrow.

I genuinely don't think it's a case of soliciting his old customers, he is actually employed by one of the group companies which is totally unrelated to his previous role and it was this part of the business he was brought in to grow. Another part of the group does broadly similar stuff but where it's overlapped slightly has been similar products as part of a larger quote and a particular customer he had who he knew personally prior to even starting at his previous company.

Where he works is public knowledge through LinkedIn, I've never really used it but he's always been big on it.

My view on it is they're unlikely to take it any further as it ramps up a level when you start talking about legal action over sending a letter.

It'll be good to get some advice and as someone else said develop a relationship with a firm of solicitors for anything that may crop up in the future; only reason we've had for solicitors in the past 10 years has been leases/property purchases and writing T&Cs for us.

[TownIdiot]

Well you seem to be saying he is dealing with an old customer and selling them similar products to his previous employer.

You definitely need to get his contract in front of a lawyer!

[AB]

Like I said, there has been some overlap, customer approached us.

Would we, as a company, be expected to turn down business because an employees previous employer might also be invited to quote?

I'll contact a solicitor tomorrow and see where he/we stands.

[Countdown]

AB said:

Would we, as a company, be expected to turn down business because an employees previous employer might also be invited to quote?

I think if youve only been approached specifically because of your new employee and he has a non-compete clause then yes, you'd be expected to turn it down.

[Panamax]

AB said:

Would we, as a company, be expected to turn down business because an employees previous employer might also be invited to quote?

You'd probably be fine, but the key test is always "reasonableness" of the non-compete clause and reasonableness depends on all the facts and circumstances. The wider the scope and the longer the duration of the non-compete the less likely it is to be enforceable.

In outline a prohibition on using or revealing actual customer lists and other genuine proprietory information can be enforced.

A prohibition on "soliciting" customers can run for a reasonable time - usually only a few months.

A prohibition on "dealing with" customers would usually not stand up, but might in certain businesses/situations.

There's a useful outline here,
https://www.farrer.co.uk/news-and-insights/non-com...

[robemcdonald]

This is only anecdotal, but I have seen quite a lot of this as people seem to move a lot between competing companies.

The non compete thing usually only sticks if specific companies are named and even then can only reasonably be applied for a few months.

[Jasandjules]

Countdown said:

AB said:

Would we, as a company, be expected to turn down business because an employees previous employer might also be invited to quote?

I think if youve only been approached specifically because of your new employee and he has a non-compete clause then yes, you'd be expected to turn it down.

That will depend on the wording of the clause. It is likely (I would suggest) that the clause prevents an employee from soliciting business/customers etc with whom they had material dealings in their final 12 months of employment. That does not mean a company should refuse any new business which is not solicited.....

[AB]

Jasandjules said:

That will depend on the wording of the clause. It is likely (I would suggest) that the clause prevents an employee from soliciting business/customers etc with whom they had material dealings in their final 12 months of employment. That does not mean a company should refuse any new business which is not solicited.....

Exactly that.