[2025] EWHC 2873 (KB)

On the balance of probabilities, on all of the evidence before me, and taking into account the civil burden of proof on the Claimant to prove the facts and matters asserted in the particulars of claim, I make the following findings of fact. The Defendant joined the Claimant as a salesperson in 2017 and was given a contract which included a set of restrictive covenants limited in duration to six months and with a narrowish purview, which I will set out below. He was well trained. He worked for them for just under eight years. He was increasingly successful, but he was never a top salesman and eventually achieved a mid-ranking position. He joined the Presidents Club, which provided status as one of the better salespersons and work jollies (as he called them). He was given rewards of the work jollies which included some training and factory visits. He had various conduct issues, which are not unusual for young men in their first employment. After a conduct issue in January 2025, in Orlando, at a work conference, which appears to have involved drinking too much with work colleagues and then getting up late, he was subject to a tough choice imposed on him by Mr Adams: resign or agree to a set of conditions and continue working. Those conditions involved: weekly counselling from the USA with Father Bob, which was intrusive, humiliating, quasi-religious and the content of which was not kept private but was reported back to the Claimant company; the Defendant was banned from leadership roles for a year; he was banned from attending a work jolly in Aruba which he had earned through his sales; he was banned from conferences for a year; he had to have workplace counselling in London; he was required to go to Alcoholics Anonymous and he was required to abstain from drinking alcohol. I find it unsurprising that this young man found the full extent of those work restrictions intrusive and humiliating and it led to a sense of dissatisfaction. The Defendant believed that others who had drank a lot or had office affairs had not been disciplined. Furthermore, when he discussed various product related concerns, he felt they were dismissed by Mr Raynes and Mr Adams. Eventually, after a morning meeting on the Friday 23rd of May 2025 when his concerns were again dismissed, he decided to resign and handed in his notice. Thereafter, the treatment of him by the company was, in my judgment, insensitive, verging on brutal and was inconsistent. On Saturday 24^th May he was told his IT had been cut off and he was not to come into the office and a misconduct investigation had been started. On Sunday 25th May, Baker McKenzie, instructed by the Claimant, hand delivered a letter to his home, stating that he was suspected of breaching his contract and an investigation was being carried out and reminding him of the restrictive covenants imposed upon him for 12 months. Then, three or four days later, Ms Colby wrote and required him to return to the office but required him to sit in the accounts room with no IT access and no key, being paid only his basic salary with no commission. She also made a threat that his stock options might not be honoured if he was found in breach of contract. All of this led to him suffering stress and loss of sleep. He went to his GP and was signed off sick for four weeks. I find that he was stressed by it and the diagnosis (which was unchallenged) was valid. That took up his notice period and therefore he was unable medically to do a warm handover for the Claimant’s new sales staff. He handed over a USB stick at the end of that month with all of the information he thought was confidential from his personal devices, having earlier handed back his work devices a few days after he resigned. He did not realise that WhatsApp messages were to be included in that because he was not aware that the company had ever required WhatsApps chats to be taken off resigning salespersons’ personal phones. When he was told to do so, it did not take him long, about 12 days, to extract those from his phone. The job was made more difficult when the IT was cut off because no names remained on his WhatsApp messages, only numbers. In any event he delivered the second USB stick on the 9th of July 2025.

None of the pleaded allegations of breach was made out on the evidence before me. In fact, many were conceded by Mr Adams in cross examination. The Defendant’s conversation with Mr Kwak did not breach any of his duties. I accept the Defendant’s and Mr Kwak’s version of their conversation. The Defendant’s discussion with Mr Morrison did not breach any of his duties. I accept the Defendant’s version of that conversation. He did not collude with Mr Powell and the un-pleaded allegation that was put in cross examination was not made out. I find that there was the same wording in sentences in at least one paragraph in the Defendant’s witness statement, when compared to a witness statement in the litigation with Mr Powell, but by the time the Defendant’s statement was served, they had the same solicitors. The relevant paragraph describes the Claimant’s worldwide business, so I see nothing sinister in that. I find that the Defendant did not set up in competition or work for a competing business and has, on the evidence before, me complied with his undertakings and the interim order. Nor do I find that the Defendant ran down his sales between January and May 2025. He was suspended from work for most of January, he was allowed 9.5 days of holiday during that period and he had two days of sick leave during. Also, he was having workplace counselling by one professional counsellor and suffering intrusive, quasi-religious “counselling” by Father Bob. This debased and demotivated him and he became less focused. Despite this, he still made very substantial sales in February 2025.

I find the effect of the Claimant failing to disclose relevant information, in relation to buying cycles before 2022 and in relation to replacement salespersons contacting the Defendant’s active customers after his resignation, somewhat undermines the Claimant’s case. Some information was provided but it was not full and it was not updated. Had that information been fully available in relation to the efforts to rebuild relationships, this Court would have been in a better position to know how well those had gone. However, it is clear that in the three months since the Defendant’s resignation 32 sales were made and the Defendant achieved the same number of sales in the same three months the year before. Also, it is clear from the documentation produced that many of his top clients have been contacted and have had positive discussions with the new salespersons, so that the contacts are still live whether or not they have made active purchases immediately.