SLAPP or not to SLAPP

Can an employee’s failure to observe restrictive covenants in employment contracts result in a Slapp?

What is a Slapp? The Solicitor’s Regulation Authority define it as “a term used to describe the misuse of the legal system, and the bringing or threatening of proceedings, to discourage public criticism or action” and advises that individuals "should always be vigilant in scrutinising [their] own and others' conduct in disputes [they] are involved in".

The term has had much publicity recently as, according to the Observer of 29th January 2023 “the expert, Dan Neidle, accused lawyers at Osborne Clarke acting for the Tory chairman of?attempting to silence him?by sending demands that he retract his statements and warning that publishing their correspondence would be “a very serious matter”??The context of the reports has been the threats of injunctions in potential proceedings for defamation where its only aim is to silence criticism.?The rather doubtful benefit is enabling people of significant wealth and position to intimidate critics of limited means. Does this dispute with Nadhim Zahawi, have any crossover in employment law?

An employment contract will frequently have a range of post-termination restrictions?that are expressed to be independent of each other. Many of the restrictions will be of legitimate value and be designed to protect the company’s

• Trade connections (with customers, clients or suppliers) and, more generally, goodwill.
• Trade secrets and other confidential information.
• Stability of its workforce

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So far so good but clauses?are often far too wide. I have seen one in the last couple of months that said “the restricted area for competition is the United Kingdom or such places as the Company undertakes Restricted Business”.??Restricted business was “any business carried on or goods or services provided by the Company or any other Group Company at the Termination Date or during the twelve months preceding the Termination Date in which the Employee was materially involved in the course of their employment at the Termination Date or during the twelve months preceding the Termination Date”.?In other words what the employee did for a living.

Whilst the possibility of an injunction to protect, for a limited period, the connections, workforce and trade secrets the company had a legitimate interest in protecting, would probably be reasonable, the threat to injunct an employee for joining a competitor would be a SLAPP by any other name.?Solicitors being asked to make such threats could and should face misconduct proceedings if they carry it through.

An employee is entitled to earn a living and use their own technical knowledge and expertise.?Faced by the threat of a SLAPP the employee should reaffirm their commitment to the legitimate rights to confidentiality of the ex-employer but refuse any attempt to limit their commercial freedom to move jobs and earn a living. Any attempt at a SLAPP should result in a reference to the SRA.