Employment

Suspected breach of restrictive covenant or post termination restrictions

Restrictive Covenants (Employer)

The departure of a valued employee or team often raises sensitive and complex legal issues which in our experience need to be addressed as a matter of urgency. At Clarkslegal we have extensive experience advising employers in situations involving restrictive covenants, team moves and injunctions.

Also we advise employers who are recruiting a team from a competitor as well as those who are seeking protection and/or damages in the Courts where a team has moved to a competitor.

The tell-tale signs that something is not quite right:

An employee leaves the company, soon after the departure it comes to your attention that he/she is:

1. Has taken a role with a major competitor or
2. Approaching colleagues enticing them to join him/her or
3. Poaching your clients

Surely this can’t be fair but what can you do?

The answer to the question is simple, what do you want to do? At Clarkslegal we understand that assets such as confidential information, trade secrets, people and relationships are fundamental to your Company’s success and protecting them is always a priority.

The solution:

What you do next is important, you need to act quickly and appropriately. We can guide you through the necessary steps which usually include:

• Responding to the departure of the team or individual; A strongly worded letter often has the desired effect but it doesn’t always work.
• Checking the enforceability of the restrictive covenants; We need to read the contracts of employment to see whether they are reasonable and therefore enforceable.
• Enforcing contractual obligations before the Courts; if the employee/s continues on their chosen path you may have no alternative but to seek the protection of the courts.
• The range of injunctions available including springboard relief; We need to know what we are seeking to protect and the legal argument we are putting forward.
• The use of Forensic IT specialists; If information has been stolen we need to prove how, by who and when.
• Contempt of court proceedings; Very occasionally the offender/s choose to ignore the court and carry on with their activities, in this case we need to take things to the next level
• Terms of negotiated exits; Sometimes the thought of legal proceedings is enough to deter and negotiating an exit becomes much more palatable.
• Confidentiality provisions; Having negotiated an exit we need to make certain all parties agree on what can and cannot be disclosed
• Recruiting individuals or a team from a competitor; Having lost an individual or a team you are going to need to recruit one, so let’s make sure we do it properly.

Getting it Right from the outset

Our team of specialist employment lawyers is here to help you protect these assets from the outset. We do this by, drafting reasonable, workable intellectual property rights clauses, confidentiality clauses and post termination restrictive covenants into your employee’s contract of employment. Where such clauses are breached our employment lawyers are on hand to advise you on the most appropriate course of action you can take to remedy the situation; be that an injunction, mediation or legal proceedings and if the matter does proceed to court, the recovery of damages against the offending employees.