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Colborn’s Corner: Poaching staff

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Quentin Colborn
The recent High Court victory for UBS in restraining a competitor from poaching members of staff brings back into the limelight the issues of both stopping staff being poached and encouraging them to stay. Quentin Colborn discusses how much HR teams can influence matters.


At first glance, a High Court case involving multi-national finance businesses may seem a world away from most HR professionals. Few of us live in a world where whole teams of staff can be tempted away by rivals – and often the teams consist of people earning telephone number type salaries. So what can it tell the 99% of us who operate in the ‘real’ world?

Firstly, it does show that contracts can have teeth. For many, a contract is seen as a piece of HR bureaucracy that is written, signed, filed away and gently forgotten. Few employees or managers take significant note of contracts, yet they do have a few uses!

“Within many smaller businesses there is a perception that employment law generally tends to favour the employee; cases like this show that is not always the case.”

It’s also interesting that within many smaller businesses there is a perception that employment law generally tends to favour the employee; cases like this show that is not always the case.

Secondly, the case shows that planning makes sense. Not infrequently I’m asked what can be done when an employee leaves to join a rival and more often than not there is little that can be done at a late stage. If planned, restrictive covenants can be put in place early, ideally at the inception of a contract, however if left until the person wants to leave it’s too late.

One of the big issues surrounding restrictive covenants is the issue of enforcement. The contractual right to restrict an ex-employee from poaching may be there, but can it be enforced and is it cost effective to do so? The issue of enforceability is quite a complex area and beyond the scope of this column to address. However, as a general pointer I would say take professional advice and be reasonable in the restrictions placed on people.

Money talks

Leaving aside the technical issues surrounding the prevention of poaching, how about looking at the issue from the other end of the spectrum? Organisations need to consider what they can and should do to prevent people being enticed away. Clearly money talks and offering to double someone’s salary, although quite rare, is normally going to win things over. However, how many organisations have an effective and proactive retention strategy?

How many organisations have analysed their workforce and looked at who they really need to keep for the strategic sake of the business? While money clearly does talk, it is worth looking at other issues where retention can be effective.

Remember Hertzberg’s hierarchy of needs? While money is important, recognition of peers is important too – and feeling within yourself that you have done a good job is also highly influential. While I’m not saying that simply making someone feel good about themselves will stop them being tempted to go elsewhere, it is a start. Make people feel comfortable in their work environment and they are less likely to take that call from someone trying to tempt them away.

Realism says, though, that unless you have a big budget for legal fees and a watertight restrictive covenant, it is difficult to stop people being tempted to leave. What you can do though is make the existing employment seem so good they will simply say ‘no’.

Has your organisation ever lost key members of staff and you found there was nothing done about it? Are you subject to a non-poaching clause in your contract and how do you feel about it?

Quentin Colborn is an independent HR consultant based in Essex who advises management teams on operational and strategic HR issues. Quentin can be contacted on 01376 571360 or [email protected]

One Response

  1. Poaching staff
    I think Quentin’s article is spot on, as usual.

    But apart from legal restictions, I think there are other, very practical viewpoints to add, if I may suggest them?

    Over more than 30 years of recruitment, I have always resisted actively poaching staff from competitors for far more ‘dirty-fingernailed’ reasons than legal restrictions. I might always be interested in recruiting a bright spark from a competitor who applies for a post, of course, if inevitably somewhat wary if the application was genuine, but I think actively seeking out such people is fraught with problems.

    My prime concerns have also always been:
    – if mobile now, mobile tomorrow too?
    – will any past employers’ secrets be shared with us (often the bait!), as freely as ours might be in their next move?
    – if they have been established in their current role, will they really embrace the cultural transition we might need?
    – will any of their dedicated customer-facing contacts, perhaps promised in a transfer of allegiance, believe in their integrity in moving?
    – how much baggage of the old employer might they bring (“We always did that this way…”)
    – what will their impact be on our own staff?
    – what are their values and real career ambitions?

    My own experience is that the best candidates for almost any job are often outside the immediate market place. They need a clean sheet; past mistakes learned from, excused and forgotten; and someone who is not going to sell their services to the next highest bidder.

    I need to add that many market sectors do seem to recycle their global employees prolifically within their own markets, perhaps not the least because recruitment agencies may think their clients want a ‘proven bet’.

    Harrumph! For many posts, this is so evidently not true, and is such a flawed strategy! But it needs their clients to see this?

    Perhaps worth a separate article?

    Best wishes

    Jeremy

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