Restrictive covenants and threatened with legal action.

[OS2020]

Please can someone advise me on a situation with a previous former employer? I will try to keep it brief and simple.

I left my position with the former employer (A) in December 2020. I started a temporary 6 months contract (B) in the same industry in January 2021 and which ended in June 2021. At the end of July 2021 I began employment with a new employer (C), again in the same industry.

A former colleague from the first former employer company (A) applied for a position within the same company as I now work with (C), closely followed by two others. I did not interview any of them but I will be the line manager for two out of the three people concerned.

I have received a solicitor's letter from company A alleging that I have breached restrictive covenants by basically inciting staff to leave, they have also referred to stealing company information which I believe refers to employee details which has allowed me to contact them. They state they have evidence of me contacting a number of employees inciting them to come and work with me. None of this is true so they cannot possibly have evidence. The solicitor has also written to my current employer sharing their allegations and accusations with them.

I left this employer over 9 months ago and have had another job (B) prior to this one (C). There are restrictive covenants in the contract (which I have not breached) but there is no timeframe so it is unclear as to how long the restrictions are in place. It's a standard contract that is given to all employees regardless of position.

The former employer (A) was aggrieved when I left and made my final weeks hell. Their business has suffered since I left as a result of poor management. I feel that due to this they are lashing out at me BUT I have done nothing wrong. I haven't contacted ex colleagues and asked them to leave and I have not stolen or shared confidential information with anyone. The letter I have received is demanding I admit liability and give them the names of ex colleagues I have contacted, confidential information I have stolen and names of organisations I have shared the information with. But I can't admit what I have not done.

I haven't engaged a solicitor yet as I was hoping not to have to, but I am wondering, as they are stating breach of restrictive covenants, how is a person supposed to know they are in breach if the contract doesn't state how long the restrictions are in place?

Also, in addition to the above, I was not provided with a company phone and was expected to use my personal phone for work purposes. Staff had access to my number but I only had access to theirs if they called me. I was also not provided with a laptop or PC and expected to use my own, so naturally I was in possession of company information whilst I worked there. I reset my laptop to factory settings on the day I left.

Any help and advice gratefully received. I'm just completely dumbfounded at the fact that such aggressive allegations can be made when they cannot possibly have evidence of said allegations as I have not done what they are alleging!!

Many thanks in advance

I forgot to add... I have been headhunted for a new position and will be leaving my current employment (C) in three weeks, leaving behind the former colleagues I have been accused of poaching.

Thank you again.

What makes them think you contacted them?

Can you ask to see the evidence?

Have you checked your contract from them for the details of the restrictions?

If you're satisfied that you haven't done any of the things you are accused of, you could just reply to the letter saying something like:

"Thank you for your letter of [date]. All allegations contained therein are expressly denied."

No explanations, no nothing else. Puts the onus back on them.

Do you have legal cover with your house insurance?

If there is no timeframe attached to the restriction, it’s unlikely to be enforceable. It’ll be for them (A) to prove it is and if it’s perpetual, it’s unlikely to be considered reasonable.

Are you a member of a professional body? If you are you may well have access to legal advice through them. Alternatively as pp suggested check your house insurance. Basically you need to nip this in the bud, especially before your new employer gets wind of it.

It will be worth the time and money to get a well reasoned legal response to their claim.

Speak to ACAS too.

Thank you everyone for your replies, very helpful and much appreciated.
@vivainsomnia I don't know why they think I contacted them. I think they are grasping at straws. I left the company 9 months ago and have worked elsewhere before joining this most recent company. An ex colleague (a) began employment with this company in mid September. Two other former colleagues (b and c) applied soon after and have just started with the organisation this week. I have also just found that ex colleague (a) has received an identical solicitors letter to the one I have received.

@Theunamedcat I'm not sure if I can ask to see the evidence? They didn't give me a copy of my contract, however, they have sent me a copy of a contract they claim to be mine. It has my name typed on the front of it and my job title, however, it is not signed or dated by me. My christian name is also spelt incorrectly. I've copied the restrictions below and have just noticed it states a 12 month period of restriction.

^POST-TERMINATION RESTRICTIONS
In order to protect the Employer’s legitimate business interests (including but not limited to the Employer’s customer connection) you agree that you will not during the period of 12 months after the termination of your employment without the prior written consent of the Employer whether alone or jointly or as agent for any third party and whether directly or indirectly in respect of business which is competitive with the Employer’s business:
• canvass or solicit or endeavour to canvass or solicit the custom of any person, firm or organisation who or which had used the Employer’s services during the year preceding such termination or had during that period been negotiating to use the Employer’s services and with which or whom you had direct and substantial dealings; and/or to
• accept instructions from any person, firm or organisation who or which had used the Employer’s services during the year preceding such termination or had during that period been negotiating to use the Employer’s services and with whom you had direct and substantial dealings; and/or to
• directly or indirectly solicit or entice or endeavour to solicit or entice away from the employment of the Employer any person who is at that time an employee of the Employer (other than employees whose duties are purely support clerical duties) with whom you have had significant working contact during your employment with the Employer; and/or to
• employ or engage any person who is at that time an employee of the Employer (other than employees whose duties are purely support or clerical duties) with whom you have had significant working contact during your employment with the Employer.^

@Disfordarkchocolate no, unfortunately I don't.

@NaToth I replied with something very similar after receiving the first letter from them, however, they refuse to accept and are continuing to harass/push.

@bunnypenny I have just noticed that there is a 12 month timeframe on the restrictions, but I have read that restrictions of such a length of time are difficult to enforce.

@DPotter Thank you. Unfortunately, they have also written to my (relatively) new employer so they are aware of it. The company solicitor have responded to the first letter and are considering their response to the most recent one. However, they are unable to represent me so I feel I have no choice now but to engage a solicitor myself. I am actually due to leave this company in three weeks, leaving behind the former ex colleagues, I'm not sure if that will make any difference or not.

@pansypotter123 Thank you, yes, I will give them a call for advice too.

Many thanks everyone, I do appreciate the advice and support.

It’s a solicitor’s letter. It’s not a court order. What does the “solicitor” want you to do? What is their demand?

@GinIronic yes, I do know that but having never been through anything like this before it's very unnerving and making me anxious, especially as they have quoted the £££ I could be liable for if I 'lose at high court'. I've copied their 'demands' below, there's a lot more words and jargon in the letter but this section is specifically headed 'demands'.

They state they have evidence I approached staff, some of the team have kept in touch with me, however, I have not approached them to entice them away from the company. My mobile number was available for the whole team due to the nature of my job, I haven't shared my number since leaving. Also, although they didn't provide me with a work phone and laptop, leaving me to provide my own equipment, I do not have any information confidential or otherwise belonging to their organisation. I reset my equipment when I left. I've already denied all of this in a previous and short email, but they persist with the same demands. This letter wasn't as threatening in tone as the previous one.

Our client therefore reiterates its demands, as specified in our earlier letter. These are that (my name)-

Admits liability in respect of the express and implied breaches of her contract and the common law;
Undertakes to comply with her duties in their entirety;
Provides details of each and every employee of our client whom she has contacted since the termination of her employment;
Identifies any data, property, and information removed from our client and confirms the location of such items, and further confirms that such data, property and information, together with all copies as appropriate, will be delivered to our client immediately. We note (my name) position in respect of this. However, this is not a sustainable position given our client has evidence that (my name) has been approaching its members of staff;
Undertakes that she will not make use of, divulge or communicate to any person any trade secrets or other confidential information obtained during the course of her employment with our client;
Confirms whether she has divulged to any person, firm or company any of our client’s confidential information and, if so, specifies to whom such information has been provided, when it was provided, how the information has been used, and the content of such information; and
Undertakes to delete from any computer system operated by her or (name of new company) any property or confidential information relating to our client.

The time frame is at the top 12 months. Did you contact any of them to tell them of a position at any firms via LinkedIn messaging email text any social media messages etc get a solicitor do not reply yourself. It’s not Perry mason they need to should you their evidence innocent until proven guilty - don’t say or do anything. A solicitor would reply

My client is surprised by your malicious and defamatory allegations. All are completely denied. However you have now contact her new employers stating malicious and totally false allegations. She has now instructed us to seek an immediate abd full apology - and once happy with the wording the same to her passed to her employer with a full
Apology and a statement saying your claims are entirely false or she will ……. Something like that

Solicitors some good and some bad - they got paid for writing the letter

It’s not December 2021 be careful there is no truth in there allegations eg did you send a text saying ‘happy Christmas by the way new job coming up at c? ‘ to someone? Has person x contacted y through work emails saying ‘oh did you know Fiona was talking about all the new positions coming up at her new company C’ etc as they will have access to all your work emails and anything the new people sent to others…..

@WishingYouAMerryChristmasToo Thank you, and no, I haven't contacted any of them or advertised any positions within any job I've had since leaving. The people who are now working at the current company applied through the company website, and they can provide evidence to this effect.

@WishingYouAMerryChristmasToo no again, I haven't contacted anyone employed by the previous employer in relation to a position with the new company. And I worker for a different company for 6 months between leaving them and starting at the new organisation.

As PP said, it's just a solicitor's letter. IANAL but my understanding is restrictive covenants are very difficult to enforce, and if yours is poorly worded, it's even less binding. I wouldn't worry too much about it, particularly if you've done nothing that could be a breach anyway.

AFAIA, the solicitor has no authority to ask you this. I would ignore it. They are fishing.

I would reply going through each allegation stating.

I have not done this. I have not made any former colleagues aware of any job opportunities at X company I don't know they were aware of them but they advertise widely.

I never had any access to firm equipment such as x y z, I had to use personal devices which I restored to factory settings at the end of my employment.

And so on.

You can annoy them with letter ping pong for quite some time...

You know you haven't done anything wrong so they can't have any evidence.

You could ask them for evidence.

Thank you everyone, I do appreciate you taking the time to reply. The solicitor, in a previous email sent me a 'copy' of my contract, unsigned and undated by me, and also a copy of an offer letter I was supposed to have received in respect of my position. Again my name was spelt incorrectly, the holiday entitlement is wrong and I have never received such a letter! It specifically mentions returning the signed document in the 'enclosed brown envelope'. They are obviously creating documentation for the purpose of evidence, which concerns me as to what other 'evidence' they could be creating.

Also, I can't help but think if they are so sure they have evidence why aren't they just serving me with court papers rather than letters containing demands.

Thank you again

So did you ever receive and sign a contract or offer letter/email?

If not "thank you for the copy of the contract that I have never seen before nor signed".

Don’t engage. No phone calls. Don’t return any letters. Ignore. Ignore. Ignore.

@RandomMess I definitely didn't receive an offer letter (or the health questionnaire the letter also refers to) and I am pretty sure I didn't receive a contract. I kept asking for my contract but then work got in the way and I forgot about it.

They were not the best employer, they didn't pay me my annual leave entitlement when I left (I hadn't taken any leave the whole year due to the pandemic and pressures on the company). When I requested it via email a second time they sent me a solicitors letter then too stating I wasn't entitled as I hadn't worked my notice period. I gave one months notice and they didn't contest this, however, they attached the same unsigned/undated contract which stated a 3 months notice period. As I didn't have a copy, and because I was burned out and exhausted from working around the clock , I didn't have the energy to contest it.

They were extremely aggrieved when I resigned and made my final weeks very uncomfortable. And since I have left things have gone downhill with the company. I think this is why they are after me now.

@GinIronic Thank you. If I simply ignore can they just take me to court? My current company's solicitor has advised me to find my own legal representative, they think my previous ex employer is determined to take me to court.

It's very difficult because although I know I have not done as they claim, I do not trust that they will not have concocted evidence, just as they have with the offer letter and contract.

But they don't have a copy that you have signed so they are screwed.

You could reply to their solicitor stating I have never seen that contract before and certainly never signed one.

Remember the solicitor gets paid to do as they tell him/her. They may be completely unaware that they don't have a signed copy, perhaps they are but have been asked to "have a go" anyway.

Find an employment solicitor and asked for a fixed fee consultation? You don't need them to write on your behalf but they may be able to put your mind at rest.

Perhaps you consider a cease and desist letter to them for harassment?

The letter is a fishing expedition. I believe if your former employer truly had evidence against you they would go straight to court and not waste time and money with solicitors letters. It’s up to them to prove you are guilty - it’s not up to you to prove you’re innocent. Wait and do nothing. The ball is in their court. If and only if they do take you to court - you may consider getting legal advice if you actually get a summons. I believe this is a civil claim and not criminal and so they have to prove their case - which won’t be easy - as they don’t appear to have any evidence. Don’t provide them with any. Don’t write to them as they could “copy” your signature.