Old job , my clients?!

Orangetaster85

Hi. I was let go from a company. I let previous clients / friends know through email and social media where I was and what I was doing and id look forward to seeing them. It got back to the big guys... now I've been told by someone in the business to put a halt to my way of approach. Legally , what can previous employers do? And if clients/ friends wish to follow me, with my approach have I kicked myself in the foot.
Thank you.

Victor

What does the contract with the old employer say about such situations?

seamus

Have a look to see what your contract may have said about non-competes. These must be limited in duration, geographical scope and general scope. That is, the contract cannot state that "you may not ever carry out work for any company in Ireland again". It has to be specific, i.e. "You may not engage a former client in <x> services within the Leinster region for a period of 8 weeks following cessation of employment". The goal of the non-compete must be to give the employer time to reaffirm their client relationships, not to prevent you from competing.

You also need to watch what information you use. Information which you have in your head, or which is in your personal possession is fine. Copying your employer's contact list and using that to make contacts is not a good idea.

But there's nothing to stop you writing it all down from your head and then going online and finding their contact details. Likewise a general post on social media is fine, provided it's done from your personal account and not your former employer's.

Details here: https://employmentrightsireland.com/tag/non-compete-clause/

Orangetaster85

I must look up my old contract. I don't remember seeing restriction on future employment. Is there a legal case on their behalf , if I have broken the terms of contract? I honestly didn't know about it if I did!!

whippet

I’ve seen this plenty of times and in reality there is nothing your former employers can do

Mr. Incognito

There is nothing to do. Tell them to sod off.

GBX

Whilst the contract may have something or not. If the details are in the public domain there is nothing to stop you contacting them to conduct business with them.

4ensic15

whippet wrote: »

I’ve seen this plenty of times and in reality there is nothing your former employers can do

Some employers are rigorous about enforcing non compete clauses. Peter Mark frequently goes to court to enforce non compete clauses and frequently succeeds.

Mrs OBumble

seamus wrote: »

Information which you have in your head, or which is in your personal possession is fine.

Really? Will that still apply once GDPR comes in to force?

Peregrinus

Orangetaster85 wrote: »

Hi. I was let go from a company. I let previous clients / friends know through email and social media where I was and what I was doing and id look forward to seeing them. It got back to the big guys... now I've been told by someone in the business to put a halt to my way of approach. Legally , what can previous employers do? And if clients/ friends wish to follow me, with my approach have I kicked myself in the foot.
Thank you.

These aren't your clients; they are your former employer's clients.

Others have commented on non-compete clauses, but what's actually going on here is abuse by you of information belonging to your former employer - namely, the names and addresses of a selection of his clients. You are using this information to try and target his clients and poach them away.

It's possible that your former employer would sue you but, realistically, that's probably not very likely, provided that you stop doing this and give an undertaking not to repeat the behaviour, if asked. The main drawback is that your present employer will be pissed off. What you are doing may reflect badly on him and, at best, it drags him into a dispute between you and your former employer.

seamus

Mrs OBumble wrote: »

Really? Will that still apply once GDPR comes in to force?

That's a good question, but GDPR definitely wouldn't affect the information in your head.

Data in personal possession, I doubt the rules would change much. Otherwise every single one of us would have to go through the contact list on our phones and ask everyone if they want to stay there.

I'll admit not having looked at GDPR much, but I gather it's not a massive departure from our current Data Protection regime, and the rules for B2B contacts very different from B2C contacts.

ohnonotgmail

seamus wrote: »

That's a good question, but GDPR definitely wouldn't affect the information in your head.

Data in personal possession, I doubt the rules would change much. Otherwise every single one of us would have to go through the contact list on our phones and ask everyone if they want to stay there.

I'll admit not having looked at GDPR much, but I gather it's not a massive departure from our current Data Protection regime, and the rules for B2B contacts very different from B2C contacts.

except the data in question is in the possession of the company. they are not personal friends of the OP.

seamus

ohnonotgmail wrote: »

except the data in question is in the possession of the company. they are not personal friends of the OP.

OP hasn't clarified that, though he did note that part of the contact he had made was through social media. Which suggests that at least part of the data is in his personal possession.

Of course there's a question of how it got into his personal possession in the first place. Adding clients as friends on Facebook or LinkedIn is fine, there's nothing the old employer can do about that.
But if it was deliberately copied from the employer's files to his personal files, then you might have trouble.

ohnonotgmail

seamus wrote: »

OP hasn't clarified that, though he did note that part of the contact he had made was through social media. Which suggests that at least part of the data is in his personal possession.

Of course there's a question of how it got into his personal possession in the first place. Adding clients as friends on Facebook or LinkedIn is fine, there's nothing the old employer can do about that.
But if it was deliberately copied from the employer's files to his personal files, then you might have trouble.

the contact with previous clients through social media was made AFTER they were let go.

seamus

ohnonotgmail wrote: »

the contact with previous clients through social media was made AFTER they were let go.

Sure.

But he'd probably added the clients on his personal social media accounts well before that. So that data was legitimately and incidentally in his personal possession.

It's only a problem if he used company social media accounts to send out the "forwarding" details, or took the company address book and used it to add people to his private social media accounts.

There's also the matter of whether social media would count as am "advertisement" or a "broadcast" message. Putting up a "I am now working at company <X>" status is a passive item, not a direct communication to any individual.

Peregrinus

seamus wrote: »

OP hasn't clarified that, though he did note that part of the contact he had made was through social media. Which suggests that at least part of the data is in his personal possession.

Of course there's a question of how it got into his personal possession in the first place. Adding clients as friends on Facebook or LinkedIn is fine, there's nothing the old employer can do about that.
But if it was deliberately copied from the employer's files to his personal files, then you might have trouble.

The important bit of the information, the fact that these people are clients of his former employer, is almost certainly proprietary information of his former employer, which the OP only got because of and for the purpose of his former employment. It's definitely an abuse to be using that information now to try and entice the clients away to his new employer.

seamus

OP hasn't clarified that, but again it's not that cut-and-dried.

If you strike up a friendship with a client and start meeting them regularly for golf/beer/whatever, do you have to terminate that relationship when you leave the employer? No. Can you talk to them about bringing their business to you? Yes. That relationship came about due to your former employment, but it is not proprietary information of the employer.

Likewise, if a client's social media account connects to your personal social media account, that information or relationship doesn't belong to the employer, directly or indirectly.

Social media in particular is a grey area; what's to stop someone from grabbing the client list and adding it to their social media account on day one, in case they might be fired a year down the line?

Peregrinus

seamus wrote: »

OP hasn't clarified that, but again it's not that cut-and-dried.

If you strike up a friendship with a client and start meeting them regularly for golf/beer/whatever, do you have to terminate that relationship when you leave the employer? No.

I agree. No.

seamus wrote: »

Can you talk to them about bringing their business to you? Yes.

Now you're crossing a line. Enticing them to leave your old employer and become clients of your new employer is a breach of your duty of loyalty to your old employer, which arises out of your old contract of employment. True, your old contract of employment has terminated, but the duty of loyalty persists.;

seamus wrote: »

That relationship came about due to your former employment, but it is not proprietary information of the employer.

The relationship isn't information at all, but associated information like, say, a list of the names and contact details of your old employer's clients, is certainly proprietary information. If you got the data from your old employer and you are now using it to poach your old employer's clients, yeah, you have a problem.

seamus wrote: »

Likewise, if a client's social media account connects to your personal social media account, that information or relationship doesn't belong to the employer, directly or indirectly.

Social media in particular is a grey area; what's to stop someone from grabbing the client list and adding it to their social media account on day one, in case they might be fired a year down the line?

The fact that grabbing your employer's client list adn adding to to your personal social media account is almost certainly a breach of your contract, and also a breach of data privacy legislation?

Even if you have your employer's consent for this, and if we ignore for a moment the data privacy aspect, I think a court would not have difficulty in finding that your employer gave you the client list for the purpose of performing your employment, and not for the purpose of enticing away clients afterwards.

Seriously, if you have a genuine personal and professional relationship with a client of your old employer, he may well follow you to your new employer. That's fine. But if you're sending around circular e-mails or facebook messages or whatever to those of your old employer's clients with whom you worked and whose contact details you have taken away with you, that's not fine. Obviously the line between those two things can be a bit fuzzy, but there will be plently of instances where it's pretty clear which side of the line they are on. Transferring data that you got through your employment onto your personal social media account is not going to bring you from the wrong side of that line back to the right side.

seamus

Peregrinus wrote: »

Now you're crossing a line. Enticing them to leave your old employer and become clients of your new employer is a breach of your duty of loyalty to your old employer, which arises out of your old contract of employment. True, your old contract of employment has terminated, but the duty of loyalty persists.;

I disagree. The duty of loyalty is terminated as soon as the contract ends. Otherwise we would all be bound by duties of loyalty to the supermarkets we worked in for 3 months as a teenager.

But if you're sending around circular e-mails or facebook messages or whatever to those of your old employer's clients with whom you worked and whose contact details you have taken away with you, that's not fine.

I guess that's the sticky point here. Whether the OP "took it away" with him, or whether it was incidentally in his personal possession.

That is, writing down a list of clients from memory and then looking up their contacts details online wouldn't be difficult in the slightest. And poses no issue for the OP.

Mr. Incognito

4ensic15 wrote: »

Some employers are rigorous about enforcing non compete clauses. Peter Mark frequently goes to court to enforce non compete clauses and frequently succeeds.

No he doesnt. A hairdresser non compete - you must be joking.

Any link for this contention?

OP Heres a summary
https://employmentrightsireland.com/tag/restrictive-covenant/

Even in a contract they are very rarely upheld
https://www.mhc.ie/latest/e-zines/employment-law-and-benefits-update-june-2013/P2

ohnonotgmail

Mr. Incognito wrote: »

No he doesnt. A hairdresser non compete - you must be joking.

Any link for this contention?

OP Heres a summary
https://employmentrightsireland.com/tag/restrictive-covenant/

Even in a contract they are very rarely upheld
https://www.mhc.ie/latest/e-zines/employment-law-and-benefits-update-june-2013/P2

Peter Mark is a They not a He. Peter and Mark are two brothers. I'm not sure how they could enforce a non-compete though. For the really good stylists the clients follow them when they move.

Panrich

Surely it's a grey area regarding enticement in any case. If a personal relationship develops between an employee and a client, then in a lot of cases a client may want his business follow with the employee to a new company.

Peregrinus

seamus wrote: »

I disagree. The duty of loyalty is terminated as soon as the contract ends. Otherwise we would all be bound by duties of loyalty to the supermarkets we worked in for 3 months as a teenager.

This is a false dichotomy. It's not the case that either we have no duties of any kind from the day the contract ends, or that we are all bound forever to the highest degree of loyalty.

What your duty of loyalty implies in this context is that, when you are given information needed to perform your duties (like the names and contact details of your employer's clients) you won't, after your employment ceases, exploit that information so as to harm your employer (by enticing away his clients).

seamus wrote: »

I guess that's the sticky point here. Whether the OP "took it away" with him, or whether it was incidentally in his personal possession.

That is, writing down a list of clients from memory and then looking up their contacts details online wouldn't be difficult in the slightest. And poses no issue for the OP.

It certainly does. The question of who owns the information is separate from the question of how or where the infomration is recorded. The names and address of your employer's clients is information that belongs to your employer, and it's information that you have because you are an employee. It doesn't cease to be your employer's property because you can write it down from memory the day after your employment ceases.

It comes down to this. If Joe Bloggs is a customer of XYZ plc, and you have come to know this because you work for XYZ plc, when you leave XYZ plc and join ABC plc, it is an abuse of information belonging to XYZ plc for you to contact Joe Bloggs and invite him to transfer his business to ABC plc.

There is a blurry line. If, arising out of the work you did for XYZ, you and Joe now have a personal relationship, and Joe says "I hear you're leaving. Where are you going?" you can certainly tell him. And if he then transfers his custom to ABC because he enjoys or values working with you, that's fine. What you can't do is entice him to do this. Of course, it can be difficult for XYZ to know whether you have enticed him, or whether he just chose to leave.

That's why companies in the situation of XYZ will try to manage the situation, contacting Joe Bloggs to tell him that you are leaving, and to introduce him to to whoever will be handling his account from now on. They will generally insist that they, and not you, are the one to tell Joe Bloggs about the change. This maximises their opportunity to keep Joe's custom but they accept that, in the end, it's Joe's custom; he can place it where he likes. And if you are personally close to Joe, it's quite likely that he will talk to you, and he may follow you with his custom.

But there's a difference between individual customers making that choice, and a former employee systematically contacting customers to let them know of his new situation, with an express or implied invitation to transfer their custom to his new employer.

whippet

has anyone any links to actual court determinations on this type of action?

seamus

Peregrinus wrote: »

What your duty of loyalty implies in this context is that, when you are given information needed to perform your duties (like the names and contact details of your employer's clients) you won't, after your employment ceases, exploit that information so as to harm your employer (by enticing away his clients).

It certainly does. The question of who owns the information is separate from the question of how or where the infomration is recorded. The names and address of your employer's clients is information that belongs to your employer, and it's information that you have because you are an employee. It doesn't cease to be your employer's property because you can write it down from memory the day after your employment ceases.

Have you any judgments or other citations for these?

It seems highly unlikely that

1. An employee owes a duty of loyalty to a former employer (this in effect means the employee can never compete with a former employer)

2. Information in the employee's memory remains the employer's property.

The link I put up near the top of the thread, while granted is basically an opinion piece from a firm, asserts that neither of these statements is correct.

I'm not saying you're incorrect, just very skeptical that the law would support the employer owning such a massively wide domain over a former employee.

ELM327

It's pretty clear in the link provided.
https://employmentrightsireland.com/tag/non-compete-clause/

There is also a distinction to be made between copying the employer’s customer/client lists-not allowed-and soliciting former customers based on what is in the employee’s head-allowed.

To be clear: there is no common law restriction on an employee soliciting business being done by their former employer.

Fred Swanson

This post has been deleted.

4ensic15

Mr. Incognito wrote: »

No he doesnt. A hairdresser non compete - you must be joking.

]

I am not joking, You Must be.

http://www.tara.tcd.ie/bitstream/handle/2262/11978/LyonsP0507.pdf;jsessionid=35E5513E5AC73039C6E3655174243AC0?sequence=1

Decision No. 13. Peter Mark/Majella Stapleton. February 1993.
Employment contract; hairdressing.
There was a non-compete clause for six months after employment ceased. Majella
Stapleton had been an employee of Peter Mark, and she was solely an employee of the
new employer. She had not been and was not an undertaking, and there was not an
agreement between undertakings, so the Act did not apply.
The Authority refused to grant a certificate or a licence.

GM228

Peregrinus wrote: »

Now you're crossing a line. Enticing them to leave your old employer and become clients of your new employer is a breach of your duty of loyalty to your old employer, which arises out of your old contract of employment. True, your old contract of employment has terminated, but the duty of loyalty persists.

I'm not so sure about this Peregrinus, the duty of loyalty and trust (i.e the Fidelity/Fiduciary terms) is an implied term in any contract of employment, but the term (like all but restrictive covenants) dies with the end of the contract.

What you speak of sounds like a Non-Compete Clause or a Restrictive Covenant, and naturally enough they would need to be stated conditions as opposed to implied. Such clauses however are prima facia unenforceable unless they protect a legitimate business interest and are no wider than is reasonably necessary for the protection of that interest. A restrictive covenant on client solicitation may however satisfy the test depending on the timeframe and any geographical restraint of the covenant.

The only implied terms which I know of that may extend beyond the termination of an employment contract is the requirement of an ex employer to provide a reference (it's not absolute and only applies in certain circumstances) to an ex employee, this is based on UK case law and it's important to note that no such duty currently exists here for an ex employer (however when an ex employer does supply a reference a duty of care then exists in relation to the content of the reference).

Based on UK case law it is reasonable to assume that should such a case ever come before Irish courts the requirement to provide a reference here may become a legal one.