Martin Malone outlines the key issues in dealing with injunctions which, above all, require accuracy and speed.

In modern employment law there are an increasing amount of circumstances in which an employer may apply to the High Court and obtain an injunction against an employee. Injunctions have the effect of preventing the employee from taking actions that may have an adverse effect on the employer. The employee must not breach an injunction or he or she may be found to be in contempt of court and potentially imprisoned. Ordinarily, injunctions are sought by the employer if a valued employee is leaving their employ and they suspect that the employee intends to take valuable customers, other members of staff or information with them. The effect of the injunction is to restrain the employee from acting in such a way. If you have received a letter from your employer or your employer's solicitor giving warning or notice of an injunction or you have received papers from the County Court or High Court in respect of an application for an injunction you must seek legal advice as soon as possible. Failure to do so could jeopardise your future business interests, future employment and potentially cost you tens of thousands of pounds.

At Canter Levin & Berg, we regularly advise clients facing the threat of injunctions, clients who have already been served papers by the High Court and clients who are concerned that their next career move may be tainted by legal action in the form of an injunction. We always advise that legal advice sought at an early stage can lead to the avoidance of High Court action against an employee. However, if the worst has happened we can advise and represent you throughout the process and enable you to achieve a result that will allow you to further your career or business aspirations as you envisaged.

Common types of injunctions

Injunctions enforcing Garden Leave

Senior employees often have garden leave (commonly known as "gardening leave") clauses in their contracts. Such clauses allow the employer to restrain the employee's employment during their period of notice whilst continuing to pay contractual entitlements such as wages, bonus and benefits. An employee may be expected to surrender his or her laptop or phone, undertake not to contact clients and remain at home during the period of notice. Such clauses are generally lawful, however, legal advice is needed when the employee intends to compete directly with his or her former employer after the period of notice has expired. Advice is especially needed if the employee intends to set up a company in competition with his or her current employer. In general, employers cannot enforce a period of garden leave without contractual entitlement, however, this varies from case to case. Garden leave is an area that has seen increasing litigation in recent years. Injunctions are commonly sought by employers to enforce a period of garden leave when an employee has resigned without notice and intends to compete with the employer.

Injunctions enforcing Restrictive Covenants

Many employees will have contractual terms restraining them from competing with their current employer, poaching clients and staff and setting up in competition. Such terms are only enforceable in certain circumstances and many covenants are badly drafted and not worth the paper that they are printed on. Many clauses are void as they restrain an employee's trade absolutely or attempt to protect a business interest that is incapable of being protected. It is essential to take legal advice as to the enforceability and effect of restrictive covenants as a breach of these terms can result in an injunction in the High Court and enormous cost and frustration. Injunctions enforcing restrictive covenants are the most common form of injunction sought in the High Court

Springboard Injunctions/Injunctions restraining Team Moves

An employer can now apply for a spring board injunction if it can demonstrate that there is a wide spread conspiracy poach employees from one company by another company or employee(s). The injunction sought usually restrains the employee or company accused of poaching from doing so and restraining the employees involved in the move by enforcing a period of garden leave and/or restrictive covenants in their contracts. Spring Board injunctions are complex and expensive to initiate and defend. Legal advice is essential.