Alan Clements is the husband of BBC presenter Kirsty Wark and a
founder of IWC, which was sold to independent TV production giant
RDF in 2005 for £10–14 million. His £2 million portion of the deal
was dependent on a three-year non-compete clause that expires in
December 2008.
He resigned after just 16 months to go to work for rival company
SMG, telling RDF that he wanted to negotiate a reduction in his
six-month notice period.
RDF said that it would hold him to the restrictive covenant
which imposed a three-year non-compete condition on him. Clements
claimed in court that he had not forgotten about that clause, but
IWC managing director Sue Oriel said that that was not her
recollection.
"She telephoned to tell [Clements] that the non-compete Service
Agreement ran until December 2008 and that the restrictions in his
service agreement ran for six months from termination of his
employment, not from his resignation," said the ruling of Bernard
Livesey QC, sitting as a deputy judge of the High Court. "She says
he replied 'Oh' and after a long pause added that he thought he
should get some legal advice. Clements disputes this; but I accept
Ms Oriel's account."
Clements tried to argue in the case that behaviour by RDF and
its employees constituted a breach of the trust and confidence
implied by any employment contract. These included an email from
the chief executive of RDF to fellow directors in which he called
Clements "a bit dim" for not having read the share purchase
agreement.
Oriel also gave a briefing to the Sunday Herald newspaper about
him which the journalist described as the most vitriolic he had
ever received and formed the basis of an article in that paper.
Articles also appeared in other newspapers.
"Some of the matters [covered in articles] were by the terms of
the SPA confidential as between himself and the claimants and
others were untrue and potentially highly damaging to his
reputation within the industry," said his claim.
Employment contracts have an implied obligation of mutual trust
and confidence. It demands that employer and employee refrain from
behaving in a manner likely to destroy or seriously damage the
relationship of confidence and trust between them.
Clements said that RDF's actions breached his contract in that
way. The judge agreed, but had to rule on whether Clements had
already broken that trust.
The judge found that by passing confidential information to
potential new employer SMG, by collaborating with them on a
strategy for managing the process of making the news of his leaving
public and by saying that he would try to take programmes with him
from IWC to SMG, he had broken his relationship of trust and
confidence with RDF.
"Working contrary to the interests of RDF in this way
constituted acts of disloyalty on Mr Clements' part which amounted
to a breach by him of the mutual obligation and/or the duty of
loyalty and fidelity," wrote Livesey. "Had [RDF chief executive] Mr
Frank known about it I am sure that he would have reacted by
dismissing him on the spot."
The judge said, then, that RDF's dismissal without notice of
Clements on 3rd May was legitimate, and that the restrictions on
his working for other employers should remain in place for three
years, until December 2008.
