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Senior Partner
Senior Partner, Solicitor
Category: UK Employment Law
Satisfied Customers: 13239
Experience:  30 years experience
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letter from my Ex-Employers Solicitors,

Resolved Question:

Hi

I have just received a letter from my Ex-Employers Solicitors, stating that I have breached a Post Termination point of Approaching and offering a job to an employee of my ex company.

I was made Redundant after 4 years in the IT Sector, and Joined a Reseller to the said Company as MD, here I have talked to many ex-colleages and the above person wanted to pursue a new opportunity which he could not do at his existing employer.

They do however state that they will take no further steps if a sign a letter stating that I will abide by the Post Contractual terms, but also ask that "I will provide a list of all XXX employees I have contacted or attempted to solicit during and after my employment"

They are not saying that I have breached anything to do with Customers.

They also say that they can use my home and mobile records and my home computer for document retention in these legal proceedings???

What should I do?

Thanks
Submitted: 1 year ago.
Category: UK Employment Law
Expert:  Senior Partner replied 1 year ago.
Thank you for your question.I will be pleased ot help you with this but can you give me some more information? Can you explain where these restrictions came from? Were they in your contract or compromise agreement on your redundancy.? What is the exact wording of the restriction please?

Customer: replied 1 year ago.
HI

I thought I just answered by I cannot see my answer anywhere! is that correct..
Expert:  Senior Partner replied 1 year ago.
No you did not answer. It is possible the system is playing up . Would you be kind enough to post your response again?

Thanks
Customer: replied 1 year ago.
Thanks, XXXXX XXXXX in my employment contract I had 3 clauses

Non-Solicitation of Customers
Non-Solicitation of employees
Non-interference with suppliers.

Here is the text..

You must not for a period of 12 months after the termination of your employment with the Company (howsoever caused) either on your own account or for any other person, firm, company or other organisation (and whether as an employee, director, principal, agent, consultant or in any other capacity whatsoever) directly or indirectly, induce, solicit, entice or endeavour to entice away from the Company any person who is at the date of such termination an employee of the Company of managerial, technical or sales grade, provided that such restrictions shall apply only to those employees of the Company with whom you shall have had material contact or dealings in performing your duties of employment at any time during the 12 months immediately preceding the termination of your employment.

Thanks
Expert:  Senior Partner replied 1 year ago.
Ok thanks. It does not soudn as if you have solicited anyone and I would reply that whilst you have taken advice and you do not believe the restrictions are enforceable you have not in any event breached the non solicitation provision. This clause does not prevent you form offering a job to someone who seeks it.

I t may be useful to explore further the validity of the restrictions. you say you were made redundant. Were you given proper contractual notice? Or were you paid off in lieu? If the latter was there a provision in your contract that allowed them to to do that? I there is any technical breach of contract by them then they cannot enforce the restrictions

Restriction are only enforceable anyway if proportionate. I assume you were relatively senior but even so a 12 month restriction is quite long. If the restrictions were in your job offer they may be enforceable but as I said they cannot stop you from employing people only from soliciting them.

Customer: replied 1 year ago.
Thanks for this, as I also have a couple of other people who are not happy at the Company and have also asked me if there is a job for them as well, I am now not sure how I should approach this?

I will obviously have to be nice to the Ex Company as I am a responsible now for one of their Elite Partners, which obviously is geared toward selling more of their products.

Also as they have asked for a list of persons I have contacted, this is a stupid request as we do business everyday with the Company meaning I have lots of contact!!!

As to my Contract, we were given a nice redundancy package and left when that was signed off.
Expert:  Senior Partner replied 1 year ago.
I would respond that as a reseller you have contact with a large range of people but you have not solicited anyone as I originally suggested. It seems pretty hostile to have their solicitors send you letters if you are a major reseller.

You did not answer my original question about notice etc. The point is highly technical about pay in lieu of notice. However if signed a compromise agreement as part of the redundancy then it may have restated the post termination restrictions.

If you want to hire other people then put job adverts out on you website or something so they can apply to those to avoid problems
Customer: replied 1 year ago.
Thanks

Yes looking at it now, the acceptance of the redundancy does state that I need to abide by the Post Contract clauses.

I agree about the hostility part, but I have a feeling it is a "one person Corporate initiative"!!!

I have very good relations with many members of the Company, who would probably be very surprised by this action.

I assume that these posts are not confidential in any way, is that the case?
Expert:  Senior Partner replied 1 year ago.
Theoretically the posts are open to internet search but once a question is closed it is unlikely anyone would access it but I recommend you do not use real names or identities - unless of course you want to name names!!
Customer: replied 1 year ago.
Thanks

I have just read some more from the Letter I received and one point is that they are saying the following:

You will refrain from any further contact with any employees of BMC for the period of 12 months following the Termination date.

Obviously as a reseller how can this be accomplished? I dont really understand why?

Thanks
Expert:  Senior Partner replied 1 year ago.
Sounds like some solicitor being a prat. They are not entitled to ask you to do that and as you say it is silly.

So politely tell them you are not in breach of anything and you obviously need to contact the former company as it is a customer.
Customer: replied 1 year ago.
Unless of course they want to terminate the Reseller contract?

This is my problem that if my answer to their demands is construed as not the one they want, that this will have repercussions on my new job, if I comply then its like admitting that I have done what they say.. which I haven't!

They could then say to my new employer that keeping me means they terminate the partnership, not very business like.. but who knows.

The ex-company is a Global company, so I am assuming their solicitors know what they are doing or could do?

Thanks
Expert:  Senior Partner replied 1 year ago.
I would not assume that the solicitors know what they are doing or that they are entitled to ask for what they are demanding. Respond that you have never breached any covenants and they are neither entitled to ask for you not to contact anyone at the company nor is it a sensible or practical suggestion given the trading relationship.

I doubt if they will pursue it but make sure any one you hire responds to an advertisement or to a recruitment consultant
Senior Partner, Solicitor
Satisfied Customers: 13239
Experience: 30 years experience
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