- Original Poster
- #1
Hi, Hopefully someone can advise our chances of successfully defending ourselves against our employer trying to stop us leaving. I feel the non solicitation clause saying we should not compete against, stops us from doing our profession and restricts fair competition.
There are 3 of us looking to set up a business in part competition to our current employer.
We set up a business on Company House and our employer found out and officially warned us to cease any further activity and reminded us of our contract.
2 of us unfortunately signed these none compete/solicitation contract amendments when we got promotions to deputy sales managers about 4 years ago. The 3rd hasn't signed any amended contracts for over 16 years and thinks the clauses were not in the contract then.
Please see below the extracts we've been reminded of and any advise would be grateful. I was thinking maybe the 2 of us that signed become merely shareholders not directors of the new business and do day to day jobs such as logistics and admin not in direct contact with former clients, leaving this to the 3rd person?
***
CONFIDENTIALITY: The Employee shall not make use of, divulge or communicate to any person (save in the performance of his duties under this contract) any of the trade secrets or other confidential information of or relating to the Company that he may have received or obtained while in the service of the Company. This restriction shall continue to apply after the termination of his/her employment up to a period of 12 months, but shall cease to apply to information ordered to be disclosed by a court of competent jurisdiction or otherwise required to be disclosed by law. Confidential information shall include, but not be limited to the following:-
a) Any information that the employee has been informed is confidential to any of the Company’s suppliers, clients, customers or trading partners.
b) Any information relating to the fact that a particular organisation is a supplier to, client or customer of, or otherwise trades or does business with the Company.
c) Any information supplied by any supplier, client or customer of the Company that is not already available in the public domain whether by content or form, to include, but not limited to: price lists, specifications, circuit diagrams, schematics of products, trading information, payment schedules, invoices, delivery notes or schedules.
d) Any other information that may reasonably be considered confidential by either the Company or the companies or individuals it does business with.
The employee further agrees to take all reasonable precautions to ensure that information in his/her possession is properly and securely stored and that it is not placed or left in such a state that it may be accessed by unauthorised parties.
The employee also agrees not to make copies of (including photographs, photocopies and other means of reproduction) or to remove information from the Company premises without explicit written authorisation from the Company directors.
In the event that the employee is in breach of this agreement, either directly or by negligence, the employee agrees to indemnify the Company for the full amount of any successful claims (including costs thereof etc.) made against the company by any parties in respect of breach of confidentiality, or any other loss suffered by the Company directly or indirectly as a result of such a breach.
SOLICITATION OF CUSTOMERS Whilst in the employment of the company and for a period of 12 months after leaving the company, you shall not compete directly or indirectly with the Company for a period of 12 months. The agreement to not compete with the company includes not competing on your own account, or on behalf of, or in conjunction with, any other person, firm or company. The non-compete agreement includes you agreeing not to canvas or solicit, or by any other means, seek to conduct business of the kind carried on by the Company with which you were concerned during the course of your employment, or seek to conduct any such business with any customer of the Company with whom you had material dealings in the course of your duties during the 12 month period ending with the date of termination of your employment.
Neither during nor after employment with this company should employees contact customers of the company to lure them away from doing business with the company. Nor should they entice other employees to leave the company. In such cases *** has the right to be reimbursed for financial losses due to noncompliance with the confidentiality clauses and has the right to deduct this from the employee’s salary.
Non-Solicitation of Staff: Whilst in the employment of the Company, and for a period of 12 months after leaving the company, You shall not, either on your own behalf, or for any other person, directly or indirectly, endeavour to entice away from the Company, any employee who has benefited from the specialised engineering training, development and experience provided by The Company, and with whom You had regular contact with during the 12 months preceding the termination of your employment. ***
Thanks in advance
Regards
Michael
There are 3 of us looking to set up a business in part competition to our current employer.
We set up a business on Company House and our employer found out and officially warned us to cease any further activity and reminded us of our contract.
2 of us unfortunately signed these none compete/solicitation contract amendments when we got promotions to deputy sales managers about 4 years ago. The 3rd hasn't signed any amended contracts for over 16 years and thinks the clauses were not in the contract then.
Please see below the extracts we've been reminded of and any advise would be grateful. I was thinking maybe the 2 of us that signed become merely shareholders not directors of the new business and do day to day jobs such as logistics and admin not in direct contact with former clients, leaving this to the 3rd person?
***
CONFIDENTIALITY: The Employee shall not make use of, divulge or communicate to any person (save in the performance of his duties under this contract) any of the trade secrets or other confidential information of or relating to the Company that he may have received or obtained while in the service of the Company. This restriction shall continue to apply after the termination of his/her employment up to a period of 12 months, but shall cease to apply to information ordered to be disclosed by a court of competent jurisdiction or otherwise required to be disclosed by law. Confidential information shall include, but not be limited to the following:-
a) Any information that the employee has been informed is confidential to any of the Company’s suppliers, clients, customers or trading partners.
b) Any information relating to the fact that a particular organisation is a supplier to, client or customer of, or otherwise trades or does business with the Company.
c) Any information supplied by any supplier, client or customer of the Company that is not already available in the public domain whether by content or form, to include, but not limited to: price lists, specifications, circuit diagrams, schematics of products, trading information, payment schedules, invoices, delivery notes or schedules.
d) Any other information that may reasonably be considered confidential by either the Company or the companies or individuals it does business with.
The employee further agrees to take all reasonable precautions to ensure that information in his/her possession is properly and securely stored and that it is not placed or left in such a state that it may be accessed by unauthorised parties.
The employee also agrees not to make copies of (including photographs, photocopies and other means of reproduction) or to remove information from the Company premises without explicit written authorisation from the Company directors.
In the event that the employee is in breach of this agreement, either directly or by negligence, the employee agrees to indemnify the Company for the full amount of any successful claims (including costs thereof etc.) made against the company by any parties in respect of breach of confidentiality, or any other loss suffered by the Company directly or indirectly as a result of such a breach.
SOLICITATION OF CUSTOMERS Whilst in the employment of the company and for a period of 12 months after leaving the company, you shall not compete directly or indirectly with the Company for a period of 12 months. The agreement to not compete with the company includes not competing on your own account, or on behalf of, or in conjunction with, any other person, firm or company. The non-compete agreement includes you agreeing not to canvas or solicit, or by any other means, seek to conduct business of the kind carried on by the Company with which you were concerned during the course of your employment, or seek to conduct any such business with any customer of the Company with whom you had material dealings in the course of your duties during the 12 month period ending with the date of termination of your employment.
Neither during nor after employment with this company should employees contact customers of the company to lure them away from doing business with the company. Nor should they entice other employees to leave the company. In such cases *** has the right to be reimbursed for financial losses due to noncompliance with the confidentiality clauses and has the right to deduct this from the employee’s salary.
Non-Solicitation of Staff: Whilst in the employment of the Company, and for a period of 12 months after leaving the company, You shall not, either on your own behalf, or for any other person, directly or indirectly, endeavour to entice away from the Company, any employee who has benefited from the specialised engineering training, development and experience provided by The Company, and with whom You had regular contact with during the 12 months preceding the termination of your employment. ***
Thanks in advance
Regards
Michael
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