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05 December 2018
The High Court has awarded an interim injunction to a recruitment business, Berry Recruitment Limited to prevent a former employee from soliciting and dealing with its clients and candidates.
The defendant in this case, Brooke Donovan, was employed by Berry under a contract of employment which prevented her from soliciting or dealing with restricted customers and candidates (as defined in her contract) for a period of six months following the termination of her employment. She left Berry in June 2018 to work for a competitor and then, according to Berry, solicited and dealt with restricted clients and restricted candidates in the weeks that followed.
Berry won an interim injunction to restrain Donovan until either 2 December 2018 (the date on which her post-termination restrictions would have ended anyway) or until a full hearing could take place, at which the court would assess whether she was liable.
The grant of interim injunctions is based on three questions which are set out in the historic American Cyanamid case. These ask whether there is "a serious question to be tried" but do not go beyond that in assessing the merits of the claim (which are usually assessed at the final hearing). However, in this case the judge treated the merits of the claim as relevant in coming to her decision. The judge held that in cases like this, where granting an interim injunction will give a claimant some or all of the remedy it would normally seek at a final hearing, "it is appropriate for the court… to go beyond merely considering whether there is a serious issue to be tried and give some consideration to the relative merits of the claim and the defence".
Berry's application for an injunction was successful largely because it contained strong evidence of Donovan's breach. Berry presented evidence that Donovan had been in touch with four of its candidates to tell them that their shifts with a client had been cancelled, and had then set that client up with her new employer. She had also sent registration packs to another restricted candidate of Berry's. In the judge's view, the claim was strong based on the evidence that was put forward.
This case reinforces the fact that, in the right circumstances, it is possible for recruitment businesses to enforce post-termination restrictions against employees without the trouble and expense of a full hearing. However, evidence of a breach will be critical in obtaining an interim injunction which might, practically speaking, mean that an employee's restrictions are enforced in full. This case is a reminder of the need for full and prompt investigations when an ex-employee's potential wrongdoing comes to light.
For further information on this topic please contact Sarah McWhinney at Lewis Silkin by telephone (+44 20 7074 8000) or email (firstname.lastname@example.org). The Lewis Silkin website can be accessed at www.lewissilkin.com.
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