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When I started employment with my ex-employer I signed a contract that had an anti-solicitation clause to the effect of: "I will not "entice away from the employer any person who is an employee of the employer" after my employment.

I had lunch with a friend who I used to work with. He is still employed by my ex-employer. During this lunch he told me that he will soon be looking for new jobs. Is it ok then for me to tell him about job openings at my new company and help him find out more details?

  • The company is Australian but it would be interesting to hear about other contexts of this law in other countries. – user4456 Feb 17 '16 at 21:37
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No

If the clause is valid and still in force it doesn't matter who initiated the approach; if you engage in any activity that could entice them to your new employer you are in breach.

See Barrett & Ors v Ecco Personnel Pty Ltd [1998] NSWSC 545

One may acknowledge that in most instances the first approach will be made by the ex-employee to the former customer. Common sense however demands that this not be the exclusive means by which a solicitation may occur.

A simple illustration will suffice as to why this is so. Assume a customer finds out, quite accidentally, that a former employee with whom it dealt, had left his principal and established a business of his own and says `let us have a proposal'. The ex-employee then submits a proposal in very favourable terms and makes a presentation to the client which convinces it to award the contract to him. Should the fact of the first approach negative any solicitation or enticing away? I think not.

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