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Ben Jones
Ben Jones, Solicitor
Category: UK Employment Law
Satisfied Customers: 38682
Experience:  Expert in UK Employment Law
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I have a Non-Solicitation of Customer clause in my contract

Resolved Question:

I have a Non-Solicitation of Customer clause in my contract that basically states that I can not solicit for 6 months, the custom or business with any customer that I have had personal contact with during 12 months prior to my termination of employment.
I have an offer from a company with whom I have not had any previous contact. Hence there is no issue with breaching of any Non solicitation clause.
However, the existing client where I have been working on behalf of my employer are very disappointed to see me leave my employer and therefore the project. They have told my employers that due to their failure to retain me, it has put their project timelines suffer significantly, and will be considering approaching me with an offer as an independent contractor. They are satisfied that they are not in breach of any agreement with my employer.
My question is - If I accepted their offer to continue working on their project, would I be in breach of the Non Solicitation clause? I have NOT solicited the offer from the customer as I have handed my notice to end my employment to join a different company as explained. The CUSTOMER has initiated the process to offer me a contract to retain me. I can prove by way of an offer from the unrelated company where I am due to go. Ofcourse I would like to take up the offer from the existing CUSTOMER of my EMPLOYER as it is more beneficial.

Your advise would be greatly appreciated.

Thanks
Submitted: 1 year ago.
Category: UK Employment Law
Expert:  Ben Jones replied 1 year ago.

Ben Jones :

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.

JACUSTOMER-mri5tacp- : Hello Ben
JACUSTOMER-mri5tacp- : i have worked for my current employer since Nov 2010
JACUSTOMER-mri5tacp- : ben - I can not see any answers. Have you replied following your initial question ? Kindly let me know when I can expect a response.
Ben Jones :

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:



  • Trade secrets and confidential information

  • Trade or customer connections

  • Stability of the workforce


 


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.

Customer: Ben - Thank ou for getting back. It is a relief to know that the enforcement of restrictive clause in my contract would be questionable. I had an email from our HR dept. drawing my attention to the relevant clause. I suspect this is just a weak attempt to scare me or perhaps covering their options. Can you please tell me if or how I should respond to this email. I was thinking for now I should just say "thank you for highlighting the clause. You should note the fact that I have not solicited an offer (none made so far anyway ) from the CUSTOMER . My reason for leaving is to take up an offer to work for a company with whom I have not had any connection thru my current employment". OR. Would you advise to say nothing more than a simple acknowledgement of the email ? IF they follow up later when I have joined the CUSTOMER , I can respond accordingly.
Ben Jones :

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.

Customer: If an offer emerges from the CUSTOMER ( very likely) then I will have to decline the opportunity to go with the other offer I have at the moment.
Ben Jones :

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

Customer: I have been considering going independent as a contractor as this is financially beneficial for me. To this end, I had made a discreete enquiry a three months or so ago but nothing was done although they were very pleased with the work I was doing. This was all informal chat. I then decided to look for opportunities outside and as soon as I secured an opportunity elsewhere and handed my notice, The customer was very disappointed that my employer was not doing anything to retain me and was now going to suffer as a consequence. This then followed by the customer writing to my manager indicating his disappointment and their intention to make an offer to me. The customer have consulted their legal team to ensure there is no breach of any terms of their agreement and all lid clear from their side. I would love to continue with the Customer as I get on so well and it will be financially lucrative for me.
Ben Jones :

I would still not say that it appears this is a solicitation situation that would be covered by this clause

Customer: Thanks Ben - it is comforting to know this. Hopefully this will all blow over and there is no issue to deal with. I will respond to the HR email as you suggest and it makes sense. Have a nice weekend . I will keep you informed if there is any development next week .
Ben Jones :

My pleasure. Please take a second to leave a positive rating for the service I have provided you with as that is an important part of our process. Thank you

Customer: I will happily do this next week . Thank you for an excellent service so far.
Ben Jones :

ok thanks

Customer: Hi Ben,
Customer: Hello Ben. - My employers have written to me to say that they have no objection to me working at the Customer site. This is excellent news whatever their reasons behind it! They probably realise that the only realistic hope of a legitimate objection would be the Customer and there is no prospect there. So after all it looks like a happy ending for all concerned. Thank you for your advise and guidance which was very encouraging. I am now leaving a positive feed back as promised.
Ben Jones, Solicitor
Satisfied Customers: 38682
Experience: Expert in UK Employment Law
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