UK: Team Moves – Snaring The Poachers

Last Updated: 22 October 2015
Article by Michael Bronstein and Michelle Hicks

A competitor poaching a team of employees can be devastating to a company's ability to carry on business and service its clients. Below is a summary of key points to consider in relation to a potential team move.

Identification and prevention

The scenario: You employ a senior employee. They develop a close professional relationship with their team. The senior individual leaves your employment. Several members of the team resign shortly afterwards. You understand that they are all going to work for the same employer.

Prevention/limiting damage key tips:

  • Remain alert: Senior employees who intend to use the benefit of their influence after their employment ends will often leave quietly, by resignation.
  • Ensure you have satisfactory protection: Particular teams (for example sales teams) may be more likely targets. Focus on tighter drafting and regular reviews of the contracts for those staff and include express garden leave terms as well as appropriate post-termination restrictions. Consider also longer and/or staggered contractual notice periods. Ensure that there are relevant express contractual obligations – e.g. a ban on outside interests during employment, and a requirement for the employees to report their own misconduct and that of other employees which comes to their attention.
  • Listen to the grapevine: Clients or colleagues may give you valuable information at an early enough stage to aid you in identifying a potential team move. Make sure you secure valuable electronic evidence at the earliest possible time, before it is concealed or destroyed. Covert monitoring of an employee's use of the business's email, IT and telecommunications systems may be justifiable if there is reasonable cause to suspect wrongdoing.
  • Employees leaving the business: Take reasonable steps to try to retain good employees who have said they are leaving. If nothing else it will help you keep the employment contract alive for longer.

Legal action

If you need to take legal action:

STEP 1: Identify the contractual terms that give you protection:

The clauses you are likely to rely on include:

  • confidentiality;
  • any ban on outside employment or business interests during employment;
  • duty of good faith/fidelity (which will be implied in any event);
  • any fiduciary duty to act in the best interests of the employer (likely to apply only to directors unless expressly stated);
  • garden leave;
  • any terms which require the employee to disclose any approaches that they receive from competitors; and
  • post-termination restrictive covenants.

STEP 2: Consider if there has been any breach:


Confidentiality obligations may well extend to sharing information about colleagues' pay, skills, contacts, attributes and experience.

Duty of good faith and fidelity

The more senior the staff, the greater the degree of loyalty, fidelity and diligence required. However, how far the implied contractual duty of fidelity extends depends on the facts of each case (QBE Management Services (UK) Limited v. Dymoke [2012]). The duty of fidelity encompasses obligations not to compete with or disrupt the employer's business, and not to solicit or entice away other employees.

Do not overstate your position – know that:

  • The implied duty of fidelity requires an employee to have regard to their employer's interests. They are not required to treat their own interests as subordinate to the employer's (unlike fiduciary duties) (Ranson v. Customer Systems plc [2012] IRLR 769).
  • Writing to the employer's supplier to ask for price lists before setting up in competition is unlikely to amount to a breach (Laughton and Hawley v. Bapp Industrial Supplies Ltd [1986] IRLR 245).
  • There is probably no implied duty on an employee to report their own misdemeanours (Ranson v. Customer Systems plc [2012] EWCA Civ 841 and Bell v. Lever Brothers [1932] AC 161). There is therefore an increasing trend towards express terms requiring employees to report their own misconduct as well as that of other employees which comes to their attention.
  • Meeting with a customer and discussing future plans may not amount to a breach (Ranson v. Customer Systems plc [2012] EWCA Civ 841).

Enforcing post-termination restrictive covenants

When considering enforcement of restrictive covenants consider:

  • whether covenants which have been introduced or updated during employment (e.g. on employees being promoted or changing role) are supported by consideration;
  • whether you can show the covenant is no wider than is reasonably necessary to protect your legitimate proprietary interests (usually confidential information, customer connection, and the stability of the workforce) – for example, whether a non-compete covenant is limited to the parts of the business with which the employee was materially involved;
  • whether the duration of the restriction is justifiable by reference to the shelf-life of the confidential information or the frequency of the customer cycle (e.g. 12 months may be justifiable in the insurance industry, where policies are usually renewed annually); and
  • how long it would really take for someone new to be trained and then to establish strong relationships with the customers serviced by the departing employees.

Points to note from Tullett Prebon plc and others v. BGC Brokers LP and others:

  • contracts that only come into force once an employee's existing covenants to their former employer fall away are not unlawful;
  • where prospective employers aid employees in fabricating constructive dismissal claims to help them in leaving, injunctive relief may still be granted; and
  • a non-compete covenant that takes no account of the possibility of garden leave is not thereby made unreasonable but the court will take account of garden leave in deciding the extent to which the non-compete covenant will be given effect.

STEP 3: Enforcement and remedy:

Reasonable suspicion of a co-ordinated team move would be likely to justify disciplinary investigation and/or suspension. As part of such an investigation, consider requiring the surrender of company mobile phones for forensic investigation. It's surprising what can be retrieved from text message boxes and other messaging services such as WhatsApp – even including deleted messages.

Typically the next enforcement step may be a letter before action. This usually requests that the employee deliver up confidential information and enter into undertakings. These commonly include:

  • not to use confidential information in the future;
  • to disclose past use;
  • not to commit further unlawful acts;
  • to comply with express and implied contractual obligations during and after employment, including any post-termination restrictive covenants; and
  • to preserve electronic and documentary evidence unaltered.

If no such undertakings are given, you will need to decide on the best course of action. This may include whether to embark on costly litigation. The following may be relevant to your decision:

  • if damages are an adequate remedy the court will not grant an injunction – but will often accept that damages can be difficult to quantify, and therefore inadequate, in cases of unlawful competition;
  • an account of profits can be a valuable alternative remedy to damages but only if there are fiduciary obligations (usually only directors);
  • an interim injunction is designed to preserve the status quo pending a full trial;
  • you may decide to apply for an interim injunction in the expectation of leveraging settlement negotiations well before the final trial;
  • you will, however, need to give a cross-undertaking in damages, under which you will be liable to compensate the employees (and the competing employer if also sued) for any loss caused to them by the interim injunction if, at trial, the court decides it should not have been granted;
  • a speedy trial is often ordered, telescoping the trial process, which might normally take 12 months or more, into just six or eight weeks, with costs being incurred at a very rapid rate; and
  • a "springboard injunction" may be available in team move situations where there are no express post-termination restrictions. You would need to show:
    • continuing unlawful conduct resulting in unfair advantage;
    • the conduct will result in future serious economic loss; and
    • the injunction is proportionate.

Before embarking on any proceedings, you should undertake a full appraisal of what losses (if any) arise from the alleged breach. You should also consider the likely enforceability of any duties relied on and the strength of the evidence compiled.


In a team move situation, the need to act quickly, but in a considered manner, is vital. Employees will commonly argue that their move is not in breach of their obligations to you, that they were unhappy, and were independently recruited without any unlawful collusion or conspiracy. Unlawful conduct may be difficult to evidence if the employees have been well advised and have been careful not to leave any electronic or documentary trail. Where genuine and significant loss is likely to be sustained, it may make sense to risk the costs of proceedings, but otherwise prevention or amicable negotiations to limit risk will usually be preferable. Appropriate commercial steps should get equal attention – e.g. what measures might secure or retrieve customer relationships for your business, even if the team move goes ahead unimpeded.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Events from this Firm
28 Sep 2017, Seminar, London, UK

On 26 July the FCA published its long-expected consultation paper on the extension of the SMCR to all FCA-authorised firms. The so-called "core regime" introduces the key concepts of regulator-approved senior managers, firm-approved certification staff and conduct rules applicable to virtually all staff.

3 Oct 2017, Conference, Zurich, Switzerland

As the founding Partner of the Europe-Iran Forum, Dentons Europe will once again support this year’s event. This compelling event which explores all Iran-related topics will take place in Zürich on 3rd and 4th October.

4 Oct 2017, Workshop, London, UK

We are hosting an interactive workshop where we will run a mock High Court trial of an employee competition case – where the members of the audience are the judges. The session, aimed at in-house counsel and HR professionals, will offer an insight as to how disputes involving employees moving to a competitor play out in practice.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.