When employees are poached or if teams leave ‘en mass’ to go to a competitor there is a risk that the business’ confidential information could be used to give a competitor an unfair advantage. The act of a team leaving together could even destabilise an entire business.

Although employers will use express business protection clauses in contracts of employment, it is often required that they do something in addition to stop a competitor gaining an unfair market advantage or force an employee to abide by their contract terms. To prevent damage to its business, employers have to act quickly. One of the methods of protection is through an injunction granted by the High Court.

In Tullett Prebon PLC & others –v- BGC Brokers LP & others a number of Tullett Prebon employees were poached by a competitor, BGC. Tullett Prebon took injunctive proceedings against BGC to stop them from poaching its staff. The High Court agreed and ordered that BGC be prevented from approaching any other UK-based employees of Tullett Prebon pending trial. The trial is due to start on 6 July 2009.

There was evidence that BGC had tried to make up cases of constructive dismissal which would have allowed the employees of Tullett Prebon to walk away from their employer without having to honour the terms of any post termination restrictions. The court referred to BGC’s "cynical disregard for the law and for employees' duties" and acknowledged that their tactics were likely to have destabilised a substantial part of Tullet Prebon’s workforce.
Practice Point

On the face of things, BGC were doing nothing wrong. However, the High Court was prepared to grant an injunction on the basis that it could take unfair advantage of a situation that it had created. Evidence also showed that BGC had taken underhand actions to create cases against Tullett Prebon. This decision shows the courts’ willingness to grant orders preventing parties from taking unfair advantage over a competitor.
Unveiling the "Fit Note"

The Government has launched consultation on 'fit notes'. The new fit note will replace the current handwritten sick note in spring 2010.

The aim behind the new note is to emphasise what a person can do rather than what they cannot. Doctors will be able to indicate on the new note that someone 'May be fit for some work now' and also indicate any potential changes to the employee's working environment or job role which could allow a return to work. Employers will not have to implement the doctor's suggestions and it will be up to the employer to consider all the circumstances in order to determine if they accept that their employee is not capable of work.

The consultation closes on 19 August 2009.