Restrictive covenants – careful wording or a waste of time…….

Most contracts of employment have clauses which are collectively referred to as Restrictive covenants and these cover non-compete, non-solicitation and non-poaching.

Whilst these clauses take various forms, their purpose is to protect and safeguard the legitimate commercial interest of the business with a significant emphasis on the client base and preventing former employees from doing untold damage to a business by poaching customers, setting up in competition and recruiting former work colleagues.

Non-compete clauses prevent a former employee from competing with their previous employer, non-poaching clauses restrain a former employee from hiring former colleagues and non-solicitation clauses stop former employees from taking steps to encourage clients away from their former employer.

Whilst that all sounds quite straight forward, most such clauses then go into further detail in terms of the distance or radius in which you are prevented from setting up in competition or time scales within which you can’t approach clients or former colleagues.

At this point, the issue becomes less clear cut because whilst you can make the clauses so onerous that the person can’t do anything, the possibility is that in doing so, the clauses become so unreasonable that they become unenforceable.

It is common practice when a person leaves a business and the Company acknowledges receipt of the resignation that they will be politely reminded about their restrictive covenants and of the possible consequences if they should step out of line…..and often CEOs and MDs will say – at least that will send a “warning shot across the bows”.

Whilst, the Courts are not averse to enforcing well-drafted and reasonable restrictive covenant clauses against former employees, the emphasis is on the careful wording and the interpretation of the word “reasonable”. On the one hand this destroys the myth that such clauses are not worth the paper they are written on but the legal costs of bringing such actions can be prohibitive – begging the question – what price do you put on protecting your business?

Some say that by making such clauses as robust and restrictive as possible, this will act as a deterrent. Dare I suggest that it is not uncommon for employees to have such clauses in their contracts and because of their legal speak wording, they don’t actually understand what they are prevented from doing. Sales people tend to focus more on the commission clause than their restrictive covenants! Maybe that’s because sales people are not renowned for doing detail?

The business should be clear about what it is trying to protect – client listings, technical expertise, system or process design……Business is about relationship building – we build relationships with our clients because if we don’ they won’t do business with us and we build relationships with work colleagues. Such relationships may stray outside work and you can’t prevent a former employee meeting with an ex-client for a coffee. However, when that former employee tries to entice the client away from one Company and transfer their business to another Company, the restrictive covenants will cut in.

The employment contract should be drafted to include clauses which include restrictive covenants designed to protect legitimate business interests and, therefore, should be reasonable in all senses of the word.

It is not uncommon in some situations, often related to signing a settlement agreement, where the business will agree to release the employee from restrictive covenants. I recall a situation many years ago when drafting a settlement agreement, I asked the CEO if he was happy to release the employee from his restrictive covenants to which he replied “Adrian…..the guy was so ***** useless, the competitors are welcome to him”.

 

Article by Adrian Berwick

Adrian Berwick provides HR support for business and if you want any support on issues relating to restrictive covenants, contact Adrian on 07885 714771 or e-mail info@abcommercialhrsolutions.com

 

 

 

 

The Importance of Being Earnest

Brexit, Trump, Leicester winning the Premier league, the passing of musical geniuses – the list goes on.  Let’s face it, we have had everything thrown at us in 2016 but there’s one thing that remains certain and that’s change.    We are living in uncertain times and this will inevitably affect the decisions of organisations and their appetite to forge ahead with plans.  This uncertainty is creating the need for change on the one hand but paradoxically is leading to inaction on the other due to an over cautious approach.   It would be a huge mistake for organisations to do nothing with the risk of  market share loss, acquisition targets slipping through the net and losing key talent to name but a few.   

Leaving the EU is a mammoth task.   The globalisation of the UK is firmly on the agenda and although it will take years to go through this messy divorce, hopefully the UK will be stronger for it.  But what happens in the meantime?   It’s the uncertainty that will create problems as ‘projects’ are put on hold.  Clearly for businesses in crisis, something has to be done urgently but the need for an interim isn’t always for reasons of crisis management.   

Organisations in need of transformation, restructuring, project / programme management, business improvement or anything that results in change continue to need people to help drive them forward without distraction.  What has become prevalent  is the need to put a compelling case forward firstly as to why interim is the right/best solution and then it’s down to the interim to provide reassurance and a convincing pitch as to why they should be selected with some quantification around the return on investment (ROI). 

It matters now more than ever to make a difference but how can an interim executive ensure they make a ‘real’ difference and deliver in a way that meets with expectations? There are a number of skills, competencies and personality traits needed to succeed as an interim.  Here are a few;

Honesty – providing an open and honest account of the findings.  Interims are able to do this (on the proviso it’s delivered in a professional way) without fear of job security, weakening promotion prospects etc.  The value to management, shareholders, stakeholders and employees is immeasurable. Quite often the day to day gets in the way and organisations can’t see the wood for the trees.

Delivery – hugely important and ultimately will be the basis of measurement of how successful the assignment has been.

Speed – expect to be parachuted in to new environments, grasp what the business does, build relationships often with customers, suppliers, and subcontractors and address the issues causing the challenges.  The problem should be solved and solution implemented as quickly as possible.

Objectivity – an impartial view of analysis undertaken provides the leadership team with a balanced, honest opinion without the person delivering the message having another agenda. 

Coaching / Mentoring - this is always part of the brief whether or not it’s been clearly defined.  This can be for members of the leadership team, management team or just generally a style that should be adopted when leading people for the short term.

Engaging with stakeholders – interims often find themselves in quite complex scenarios with multiple stakeholders that have to be taken on the journey.  Building relationships is part of the remit.

Communication – can’t be emphasised enough.  Any change programme’s success is dependant on how engaged the people are. 

Don’t get drawn in to BAU issues – the reason the client has engaged an interim in the first place is because they don’t have the internal capacity or capability to solve the problem.   If the interim finds themselves in a firefighting situation, they are likely to take their eye off the ball from the original set of objectives.

Confidence and gravitas – the fact that someone has embarked on a career as an interim is borne from having achieved and delivered during a corporate career at board, functional or in a business leadership capacity.  This knowledge and experience should enable the interim to tackle challenges with the necessary agility and be chameleon like in approach.  

Managing the exit – once the agreed objectives have been delivered it’s important to manage an exit at the appropriate time.  The interim should avoid hanging around unnecessarily as this will quickly diminish the value created from the good work undertaken. 

Leaving a legacy – be remembered for the right reasons.

This is all underpinned by the raison d'être of adding value, making a difference and ensuring a return on investment.   It’s the little wins that can make the biggest difference and mopping up the unexpected problems where the interim can go the extra mile.

In order to ensure a successful assignment for all parties it’s important to be honest and how this is delivered will determine the added value in the long term.  After all, the results of this assignment will determine the reference received and how quickly the next one is secured.

For further information or a confidential discussion about how we can help please contact Steven Wynne on 01423 704153 or email steven.wynne@macallaminterim.com

Do you decide to recruit Internally or Externally?

Picture the scene – a key member of your team has resigned and they can’t be persuaded to stay. You know you must replace – the dilemma is whether to “play it safe” and go with an internal candidate or look externally.

Internal promotion can be seen to encourage loyalty, build morale and send out a powerful message about career prospects – assuming, of course, that the internal candidate has the right skills  – but the drawback surrounds the missed opportunities of bringing someone new into the organisation.

Many companies are adept at creating internal pipelines of talent recognising the need to retain good people and provide business continuity. These businesses strive to offer people a vision of where and how their careers may develop, instead of having to leave to move upwards. Furthermore, the creation of continuous development opportunities for home grown talent sends out a strong and powerful message.

Some companies always promote from within first only bringing in new people at junior level. By doing this, they tend to have good retention at lower and middle levels and keep recruitment costs low. Employees can rise from junior ranks fairly quickly before progression slows due to a mix of limited opportunities or their inability to progress further.

Succession planning runs through the talent management process from recruitment to how employee performance is managed and building a culture of internal promotion gives people aspirations. However, it is critical that expectations are managed and when an internal candidate is unsuccessful for a role, they deserve honest feedback so they can re-set their goals and aspirations based on reality. 

However, if the business is venturing into new markets or sectors, the likelihood is that the required skill set will not be available internally. Also, there are benefits to be gained by bringing in a fresh set of eyes with best practice knowledge and skills gained elsewhere. Rightly so, much is written today about the value of transferable skills and skills can transfer successfully between industries, sectors, markets and functions.

Whilst it could be perceived that external recruitment stifles the development of internal staff by cutting off promotion avenues, the counter argument is that promoting internal talent prevents the opportunity to inject fresh ideas into the business. Conversely, recruiting a manager from outside may mean that talent is unearthed in the business that the previous management had failed to identify or chose to overlook and new management gives these people new opportunities.

New blood into an organisation, specifically at senior level, brings new ideas, innovation, creativity, and different ways of working. It rarely comes without pain because new senior managers will challenge the status quo, ask pertinent questions and shake people out of their comfort zone by getting people to up their game or leave.

Business growth can also be a factor in the internal v external recruitment debate. Some employees are ideally suited to smaller businesses (invariably these are family based) and as the business grows and possibly the family influence begins to take a back seat; there is greater need for formalised management structures, process, procedure, controls and disciplines. Some people will find the growth transition uncomfortable and in simple terms, the business out grows the individual and a new/different skill set is required.

In these situations, bringing in someone new will bring much needed ideas, energy and vision whilst challenging those that say “but we’ve always done it this way”.

If it comes down to cost, on paper external recruitment will cost more and external recruits will need to be given an on-boarding process to familiarise them with the business. However, over time the right candidate will be able to make a significant contribution and make a step change for the business through new methods of working, accountability and the identification of new opportunities. Inevitably, change and improved performance are what all companies are looking for!

Every business needs to manage the balance between internal and external recruitment but at senior level, sometimes it takes an outsider to come in and make that change happen.

Written by Adrian Berwick. 

Adrian is an experienced HR Professional who works exclusively with Macallam on the delivery of their Personal Career Transition service.