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I work as a staff writer for an online news publication at Company A in the UK. I have a friend who I met at the company who was senior in the PR/Comms department. They have recently left the organisation and is starting up a PR agency with a couple of other PRs from elsewhere (Company B).

The former colleague has strongly hinted that once their Company B is fully up and running with some new recruits onboard they would consider also bringing me in for a PR role there (lots of transferable skills and it's an area I've been interested in).

Here's the question: Former colleague's contract from Company A has a 12-month non-compete/non-poaching clause, but I'm wondering if this is something that would be applicable/enforceable to this situation?

  1. I wasn't in my friend/colleague's team or even their department
  2. I wouldn't be working in the same field so there's little risk of business knowledge being taken
  3. I am relatively junior compared to them and I'm presuming non-poaching clause is designed to prevent senior colleagues from being picked off rather than juniors who imho should have freedom to move around employment

Do you think it would be allowed for Company B to offer me a job or would we need to find a workaround?

e.g. I thought would waiting until I have served notice before engaging with Company B circumvent the poaching covenant (you can't "poach" somebody from Company A who is not employed at Company A)? Or what if they advertised the position and I applied like anybody else?

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Do you think it would be allowed for Company B to offer me a job or would we need to find a workaround?

This really depends on how exactly the non-poaching agreement is worded and what specifically transpired.

In most cases non-poaching agreements prevent parting employees from "actively soliciting" or "participating in soliciting" existing employees but that does NOT prevent you from asking them for a job nor does it prevent them from offering you one.

The former colleague has strongly hinted ..

That's the controversial part here. What exactly did they do to "strongly hint" and did that violate their non-poaching agreement. This can be complicated and if it actually comes to legal action will be ultimately to be decided by a court based on the specific facts.

In any case, this is a matter between the former employee and your company. You really can't do anything wrong here: it's perfectly fine for you to be solicited by anyone as long as it doesn't violate a non-compete that YOU have signed.

I'm presuming non-poaching clause is designed to prevent senior colleagues from being picked off

Non-poaching clauses are scare tactics targeted at anyone. Enforceability is complicated, spotty and expensive, so actual legal action is rare and only deployed if the company think it's worth it (or someone with big pockets has an axe to grind).

rather than juniors who imho should have freedom to move around employment

Your opinion doesn't matter here. It's only about what the contracts that were signed actually say.

Or what if they advertised the position and I applied like anybody else?

That's perfectly okay and by far the best way to go.

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  • Remember that in the USA, several of the largest tech companies where given a 100 million dollar fine each for having non-poaching agreements.
    – gnasher729
    Feb 6 at 12:21
  • Careful about that last bit of advice. Just because you apply via a "public" channel does not mean that a court can infer that the prior relationship between OP and the ex-colleague is more relevant, and the public channel is a simple attempt at hiding that fact.
    – Flater
    Feb 7 at 0:54

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