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Diarmuid Deeney speaks to NAFD Conference

May 2015

" I was delighted, indeed to be asked to address the National Association of Funeral Directors at their Annual Conference in Edinburgh on the 16th May 2015.  This was the second time I had had the privilege of addressing this Conference and they really are the most delightful bunch of people.

They expressed an interest in a talk onemployment law advice Restrictive Covenants and Garden Leave.  I had become aware that there is an increasing perception amongst departing employees that Restrictive Covenants “are not worth the paper they are written on”. I am not sure how this perception has gathered force as recent Court decisions have shown that the Courts are perfectly happy to enforce properly drafted Covenants. 

Another misconception, I was happy to knock on the head, was that the employee is okay provided the customer approaches him first.  This was given very short shrift, indeed, by Mrs Justice Simler DBE in   Croesus  Financial Services case (2013).  Another feature of this case, like many others, was that the Court made it clear that it did not approve of the behaviour of the departed employee.  Mrs Justice Simler remarked of this departed  father and son combination:-

“Neither Bradshaw  were entirely credible or satisfactory – when it suited them their recollection of significant issues or events was incomplete or hazy and their explanations often unplausable and sometimes evasive”.

In another 2013 case Coppage – Mr Coppage had actually obtained Affidavits from 5 customers which he produced to the Court as evidence that he did not solicit their business after leaving his previous employer.  In as scathing comments as you are likely to find from a judge Sir Bernard Rix, sitting in the Court of Appeal, remarked:-

“I disbelieve each of the Defendant’s witnesses that solicitation did not occur.  I find them too be lying and acting under the control of Mr Coppage”.

I suppose the moral of the tale is, unlike what you may see on television, most people who try to lie to or mislead the Court are found out.  In these difficult times you need every weapon in your armoury to protect your business.  Properly drafted Restrictive Covenants are a good way of doing this.

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