UK Employment Law
UK Employment Law Questions Answered by Verified Experts
Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today. For now please let me know how long you have worked there.
Apologies for the slight delay, I experienced some temporary connection issues last night. It is common for employers to want to protect their business interests from unfair competition by current and ex-employees. This applies especially to employees who have knowledge of sensitive and valuable information, have considerable influence over the workforce or have strong customer connections. However, at the same time it is in the public interest to ensure that employees are free to move between employers and use their skills, knowledge and experience in a new setting.
Whilst employers try and impose certain restrictions on their employees, under the doctrine of restraint of trade, any contractual term which seeks to restrict an individual's freedom to work for others or carry out his trade or business is illegal and unenforceable. The exception is when the employer can show it has a legitimate business interest that requires protection.
Legitimate business interests (LBIs) are commonly accepted to include:
An employer cannot impose a restrictive covenant merely to stop someone competing, but it can seek to stop that person using or damaging something which legitimately belongs to it, such as an LBI.
Non-solicitation covenants are there preventing an employee from contacting the customers of their ex-employer. Recent case law has suggested that solicitation means “directly or indirectly requesting, persuading or encouraging clients of the former employer to transfer their business to their new employer". This should be restricted to customers with whom the employee had contact during a specified period before leaving. Other relevant factors may include the employee's level of seniority in the business, the extent of their role in securing new business, the length of similar restrictions in the employment contracts of competitors. Generally, restrictions against potential customers will be harder to enforce.
I cannot see your situation falling within the above and as such the enforceability of this covenant in your situation will be questionable.
I would suggest you acknowledge their email and simply state that it is not relevant in this situation as you have not solicited the custom or business of any customer of the company. Just leave it at that, if they want to query it further it's down to them to do but for now all that is needed is the above.
even if they make you an offer to join, that is not solicitation on your part, assuming you have not gone out there to seek a job with them
I would still not say that it appears this is a solicitation situation that would be covered by this clause
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