Hi im wondering what i can do about non solicitation recently i had to make my entire workforce redundant due to the loss of a large contract. I have found out that one of my staff actually has obtained this contract instead whilst under my employment, all this falls inside the employees forming a company before this went to tender. I have non solicitation in my contracts for 12 months which maybe too long, but my former employees took my clients whilst under contract is there anything i can do?
Province/Country relating to question: ENGLAND
Hello and thank you for your question, which I will be happy to assist you with. Please let me know when did this happen?
i have recently found out but the company they formed was on the 15th March 2012, one employee left on the 1st May as i no longer had the contract the other two employees left at the end of May. All three are directors of their newco
the tender went out "for tender" 18th April, 3 weeks before i had we had no room for a payrise as well
ok let me get my answer ready please
ok thank you
Jusat to check - were these covenants only applicable post-termination of employment?
it was non solicitation during and 12 months after
Whilst I agree that long restrictive covenants are not always enforceable, that is not a given and the clauses that you had could still be enforceable. This is especially true if the employee had used their position to damage your legitimate business interests, such as client lists, confidential information, etc. The issue here is also whether they were merely competing with you, by using information that was publically available or if they actually used their insider position to specifically breach the terms of their contract.
Had they simply competed without any underhand tactics to gain information, then that is unlikely to qualify as a legitimate business interest and I am not entirely certain you could take this matter further. However, had they abused their position, used your confidential information and taken advantage of the situation that way, then a claim is still possible.
Either way, you may only claim in the courts now and make a claim for damages that have been incurred as a result of this. Consider whether you want to do this alone or get a solicitor to represent you, remembering that if you lose you could be responsible for the other side's legal fees and expenses.
Am i able to write a letter to them or would you suggest a solicitor to do so even as a scare tactic as such.
A solicitor's letter could be effective although it does not have to come from them. The fact that you are seeking legal advice may be more effective as a tactic though and as such a formal letter from a lawyer could be a better option
that sounds like a good option is it better to go local or can you recommend anyone? Also do i go after the three individuals or the new limited company
We can't recommend anyone I'm afraid but local would be fine. At this stage you do not need anyone specialist to do this as long as it is from a formal source. Your potential claim will be against the person(s) with which you had a contractual relationship, not the company
thank you very much for your time, i feel confident about which direction to take.
Expert in UK Employment Law
Hello, Following our recent conversation, this is just a quick follow up to see how you are getting on and to check if my advice has been helpful in dealing with your query? I look forward to hearing from you.Regards, Ben
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