There might be 50 ways to leave your lover, but if you’re leaving one job and joining a competitor, there is a very careful path you need to steer in order to avoid an expensive and damaging dispute.
There is a natural desire to impress your new boss with your knowledge, contacts and ability to hit the ground running. However, it is essential not to forget your duties to your current employer or any regulatory obligations. Otherwise, the consequences could be severe.
Pause before you hit send
In most client-facing businesses, the client list is a crucial business asset. Rather than reconstruct their contacts list for a new employer, often employees email those databases or key data to their personal email addresses, or download the data, shortly before they resign from their current job.
This may have extremely serious consequences. Not only is it likely to amount to a breach of your contractual confidentiality obligations, but in some circumstances it could be a criminal offence. This could cause you (and your new employer) to be embroiled in defending litigation brought by your current employer. Even worse, it could also lead to regulatory approval being withdrawn or delayed: the FCA is taking such matters increasingly seriously.
Employees are often startlingly naive about the electronic traces they leave. Deleted emails are usually recoverable: systems often record the printing and downloading of documents, and it is now standard practice to look at such records when an employee resigns.
The irony is that employees often appropriate information which they do not really need, which their new employers will already have, or which is available publicly – so they run substantial risks for little or no potential gain.
Check your contract
Another common error is not looking carefully at the obligations in your employment contract, both during your notice period and after you leave.
Garden leave is not just an excuse for a “staycation”, it’s intended to protect your employer and keep you out of the market during your notice period. If you breach the terms by contacting colleagues or clients, for example, your employer could obtain an injunction to force you to comply with your contract.
Most professionals are also now subject to post-termination restrictions on soliciting or dealing with clients, poaching staff and, in some cases, competing altogether, for a period of time after they leave their current employment. Employees often wrongly assume that employers can’t or won’t try to enforce these obligations: they do and often they succeed.
The safest route is to ensure both you and your new employer understand your contractual obligations fully and have assessed the litigation risk. If you are prepared to run the risk of breaching your obligations and litigation is likely, you may want to negotiate an indemnity from your new employer to cover your legal fees and any costs or damages you may be required to pay.
Careless talk costs jobs
It’s natural to want to announce your new job to the world – and with social media it has never been easier. But you need to be careful: announcing a move online could breach non-solicitation obligations in your contract and lead to litigation against you.
You should also be careful about the timing of reference requests, as these can inadvertently tip off your current employer. In some regulated roles, you may have less control over this process, but you should discuss this matter with your new employer to ensure the implications are fully understood.
Keep these tips in mind, and with any luck you and your current employer can have a simple “conscious uncoupling” rather than a messy divorce.