This means that if a client decides to follow a departing employee, provided that the employee has not persuaded the client to do so, the employee can work with that client in a new business, even if that business competes with the ex-employer. This could be the case, in particular, if the client initiates contact with the ex-employee. However, the High Court did state that, although the party who initiates contact is relevant in determining whether solicitation has taken place, there can still be solicitation in situation where the client makes first contact. The court will need to look at all the circumstances surrounding that contact and what ensues in reaching its decision.
This case is helpful in clarifying the meaning of non-solicitation but it demonstrates the difficulties that can be faced by the employer in proving solicitation of clients. If an employer wishes to avoid the difficulties of proving solicitation (i.e. that an ex-employee persuaded his or her previous clients to deal with him or her), it should seek a non-dealing covenant from the employee that expressly prevents the employee from dealing with clients for a period after leaving the company.
Towry EJ Ltd v Bennett & Ors
