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

@RandomMess Thank you so much. I did reply with that exact response when they sent me the contract with their first letter. I also called them out on the offer letter which I had never received. They didn't reply. A cease and desist letter would be good, I am definitely feeling harassed/hounded.

@GinIronic Thank you to you too, and yes, I share your thoughts around why, if they have evidence, they haven't gone straight to court. And them copying my signature and applying it to documents has crossed my mind. They will have my signature on company documents and I would not put it past them to use it fraudulently. One time I observed one of the directors to use a PDF convertor on a health and safety certificate which was out of date, he converted the document, changed the date so it was current then converted it back to PDF. I don't trust them at all and that is what adds to the anxiety.

Hmmmm wonder who you could report them to for a lapsed health & safety certificate...

@RandomMess there were a number of things I could have reported them for but I think I was too soft, I kept my head down and focused on my job.

And look where that has got me!

Nothing to stop you reporting now tbh.

I don't think they can simply take you to the court based on an unsigned contract- no contract no problem- it is their duty as well to make sure you have a mutually signed contract when you were first employed- they haven't provided that

@Molly1418

I don't think they can simply take you to the court based on an unsigned contract- no contract no problem- it is their duty as well to make sure you have a mutually signed contract when you were first employed- they haven't provided that

This also it’s illegal not to produce a contract within a certain timeframe.

So state this in your reply too - find the exact timeframe. Eg despite frequent and repeated requests (evidenced by appendix 1) you did not issue me with the contract - this is against x law and y piece of company policy

I refute all allegations

I will be asking for x amount in holiday leave after giving you 4 weeks notice (you did not contest this and see aforementioned points 1 that no contract had been received so 1 months notice was assumed’ I will asking for it to be paid from this date (backdated) at x % of daily interest

All my legal costs in contesting any case will be sort by you

Blah blah blah

Thank you very much everyone. I feel so much better just having spoken about it and your advice has been very reassuring. I'm going to try and put it out of my head over the weekend. I suspect I will get more letters in the future, but, as I am leaving the new Company in three weeks and won't be working with my ex colleagues any longer, I'm hoping that will take the 'wind out of their sails' a bit. Also, if I focus on the lack of contract my argument will be that I haven't agreed to any terms and conditions including restrictive covenants. If they produce documents I have allegedly signed then I will have to fight that one with what I know around them falsify documents.

I can't help but think that the solicitor knows they don't have enough to actually take me to court which is why he is issuing demands. Surely, common sense would have been to send me evidence of a contract I had actually signed and with the date I had signed it, not what is effectively a template with my name on it!

I will give ACAS a call on Monday as they may be able to advise as to who I can report them to for the shady goings on too. I'm also thinking it might be a good idea to join a Union! I work in an industry which is rife with poor employers who don't value their employees, hence me leaving this most recent role after such a short time. I am absolutely sick of it!

Thank you again

@Molly1418

I don't think they can simply take you to the court based on an unsigned contract- no contract no problem- it is their duty as well to make sure you have a mutually signed contract when you were first employed- they haven't provided that

This isn't true.

An unsigned contract is enforceable.

What's not enforceable is an unissued contract.

Your defence (other than the fact you didn't do it!) is that you can't be held to terms of a contract that was never issued or made available to you.

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

This is wrong. An unsigned contract will make it harder for the ex-employer to win but not impossible.

This also it’s illegal not to produce a contract within a certain timeframe

Also wrong. An employer does not have to produce a full contract at any point. They only have to supply the employee with written particulars of employment. Having said that, if the OP genuinely hasn't seen the restrictive covenants while she was employed by A, they are not enforceable.

The OP's defence is that she hasn't done what is alleged. Her OP suggests she did see the restrictive covenants while she was working for A. If that is the case, she should not try to claim that she hasn't.

I would not respond to the specific demands. I would, however, respond denying the allegations again and, since they have made these allegations to your employer, I would demand a full retraction and apology and threaten action for libel if these are not forthcoming. Even better, if you have legal cover through your house insurance I would see if they will pay for a solicitor to represent you.

Regarding asking for their evidence, if they want to take legal action against you, they will have to supply their evidence. They can't just turn up to court with it. I would therefore demand to see their evidence and refuse to engage further until they provide it or take legal action.

@prh47bridge Thank you very much for your advice. I think I will find a solicitor who will write and send the letter.

Just to clarify, I didn't see the covenants while I was actually working for them. I left in December 2020 but they didn't pay me my untaken annual leave pay. When I contacted them about this they sent me a solicitors letter stating I wasn't entitled to the leave pay, attaching a copy of the contract to the email. I didn't have a copy before then. However, I can see what you may mean, that I had seen a copy of the contract in January 2021 when they sent the copy so would be unable to say that I hadn't seen the covenants.

Thank you again everyone.

If you left in December and the first time you saw the covenants was in January, they will struggle to convince the court that they are binding on you. They can't add new terms to your contract after you have left their employment.

@prh47bridge Thank you again, that is really good to know. Yes, January was the first time I saw them. It was also the first time I saw an offer letter that had been created and produced as evidence when they were denying they owed me annual leave.

Which? Legal services only cost £12 per month and you can cancel anytime, so might be worth signing up for some cheap advice (I didn't use them for employment stuff but found them very helpful and they resolved my issue quickly). I agree with PP's that this is a fishing exercise and malicious also, and although it's very stressful to have hanging over you my inclination would be to ignore them and call their bluff! Good luck

OP - just a thought. Have you examined the properties on the contract document? If these are dated Jan 2021 then this is evidence they created the contract at that point.

@iknowimcoming Thank you! I did sign up for one of the services you suggest, it cost me £40 and the only advice I do was to find a good employment solicitor as it was obvious the former employer were determined to go to court

@Turangawaewae Thank you so much! I am daring to get excited as I have just done as you said and the property info on the contract states it was modified at 09:40am on the 1st February 2021. I received the email it was attached to at 09:53am on the 1st February 2021. This came from the solicitor so would have been in PDF form when sent to him I imagine... so the modifications would have had to have been made by the employer?

I'm trying to do the same with the 'offer letter' but I'm on a Macbook and it's not so straightforward.

Do NOT sign that undertaking under any circumstances. They’re asking you to admit liability for a breach of contract!

I’ve written (and responded to) hundreds of these kinds of letters over the years. It’s most frustrating for an employer when they get no response at all, as they then have to either let it go, or go to court.

If they go to court for an injunction and/or breach of contract claim, their legal fees would be significant - and if it hasn’t caused them any financial loss then frankly it would be a waste of time and money. Not to mention the fact that they a) don’t appear to have any evidence of a breach and perhaps more importantly b) cannot hold you to the terms of a contract that you had not seen at the material time!

If you do want to formulate a response, I’d base it on fact - you won’t be signing an undertaking as you are not bound by the contract as it was never provided to you, in any event, if (which is denied) you were found to be bound to the terms then you have not breached them in any way. Ask them for a signed contract, proof of the method of delivery of the contract, and the meta data showing the date of creation, along with any evidence of the alleged breaches. I have a feeling they’ll probably drop it shortly afterwards.

@MrsPinkCock Thank you so very much for your advice! Much appreciated! I am definitely not signing anything and although I would like to put this in the hands of a solicitor allowing a response to be sent, if only to reduce my anxieties, I also do not want to reply at all. I prefer the idea of them being caused frustration by no response. I feel I should wait to see if they do initiate court proceedings and if they do find a solicitor to represent me then.

I left the company nine months ago. At the time of leaving I managed a staff team of 58. In late August, one of those people applied for a position with the company I am currently working for, with two more people applying in September, all applying through the company website. So three out of what was 58 people have left to work at the same company I am at.

Since I left, the branch of the company I managed has deteriorated with people leaving or going on long term sick. This may have incurred agency costs but I cannot be sure. It is a very incestuous industry and it is common knowledge that things have deteriorated through poor management with staff not having been treated well. I cannot help but think that the actions of the directors are malicious as they were extremely aggrieved when I left. Surely, I cannot be held responsible for their current situation and any financial loss they may have incurred, 9 months after leaving.

When they first sent me the contract I replied to the solicitor asking for a signed and dated copy to be sent to me by return, however, they didn't reply, which of course they wouldn't be able to if they don't have one.

This has made me think too, is it expected that we don't form friendships and keep in touch with former colleagues for fear of being accused of 'approaching' them? Also, their new manager contacted me recently on my personal 'Messenger' app, sending me a message asking for my login for my account of an organisational app. I didn't give it of course but is this really ok when I am being accused of approaching their staff! (Aware I could be being a tad petty).

Do not reply.

Their letter is a fishing expedition inviting you to put your head in their noose

Seek legal advice only if they issue legal proceedings against you.

Legal action is unlikely to succeed as your covenant is not time limited and therefore likely to be unenforceable.

They would also need to show proof of enticement and of loss relating to your alleged actions before damages could be claimed.

I agree with previous posters, the letter is a fishing exercise so either no response, or a short reply to say you deny it or instruct a lawyer to write an equally scary letter back.

@MoreStuffingMatron

Do not reply.

Their letter is a fishing expedition inviting you to put your head in their noose

Seek legal advice only if they issue legal proceedings against you.

Legal action is unlikely to succeed as your covenant is not time limited and therefore likely to be unenforceable.

They would also need to show proof of enticement and of loss relating to your alleged actions before damages could be claimed.

The covenant is time limited - 12 months.

You are correct that they would need to show proof but, as this is a civil case, they would only need to prove their case on the balance of probabilities.

You need to see a solicitor. 'The solicitor has also written to my current employer sharing their allegations and accusations with them' is potentially libellous.

I suspect a good employment lawyer will make short shrift of them.

I would get a solicitor to write a cease and desist letter, then refuse to engage.

Can you compare notes with some of the other ex employees with regards to contracts, etc? They probably had the same shoddy or non-existent paperwork and will be only too happy to go on record saying so.

Apologies - I missed the 12 month time limit.

The covenant can still be unenforceable with a time limit if ifs scope is so extensive it prevents you from earning a living.

The other party’s solicitor is probably attempting to induce you to respond out of fear of facing legal action.I still suggest ignoring the letter. You could however check whether you have legal expenses insurance on your household insurance policy, and if so, give this a call.