Trustmarque has retaliated following accusations by a recruiter that it is preventing staff from leaving for other jobs in the industry following its acquisition by Liberata.
Earlier this month, Trustmarque staved off administration after reaching a deal to be acquired by the London-based outsourcer. The licensing VAR spent a week searching for alternative investment after private-equity backer Dunedin - which came on board during a £43m MBO last summer - pulled out amid changes to the way to firm recognises its revenues.
CRN has seen a copy of a contract which it is understood companies interested in making an offer for Trustmarque were asked to sign before they had access to the York firm's books.
One clause states that should a party see the accounts but not make an offer - or if they make one but it falls through - they are not allowed to poach Trustmarque staff or even offer them employment for the next two years.
Companies were asked to sign away their right to "solicit, interfere with, offer employment to, or entice away" any of Trustmarque's directors or staff on behalf of themselves or anyone else, according to the clause.
A question of trust
Recruiter Paul Davis, managing director of Merlin Corp, said he has been approached by a handful of Trustmarque staff who have had offers from rivals revoked because of the clause.
"I know of at least eight staff who have handed in their notice and have been met with the statement that they cannot join the LSP [Licensing Solution Provider] who has made them the offer of employment," he said.
"I have been speaking with around 60 people who are employees at Trustmarque and they are confused why the company has effectively forced them to stay.
"Trust in the management has gone and people are weighing up options. I am being asked ‘do you have anyone that we can work with that Trustmarque cannot prevent us from moving to?'"
Chris Cooper, a senior associate at law firm Taylor Wessing, said non-poaching clauses are becoming more common in situations like this, but that Trustmarque's clause seemed to go further than most.
"This clause does go a bit wider than what you might see in a non-poaching clause because it doesn't just cover the buyer actively going after employees of the seller - you might understand that being a concern - but it also covers not offering employment," he said.
"So that would cover if the employee responded to a job advert and the [potential] buyer is in a position where they agreed not to offer employment to the seller's employees. It's almost as if they have to turn down employees. This kind of clause is unusual to find in a pre-transaction document."
Cooper added the clause "might not" stand up but said Trustmarque's motives were understandable given the position it was in.
"I can imagine they might be concerned and didn't want a situation where people are coming into look at [it] and then cherry picking the workforce," he said. "I can see why they might have put it in."
Another industry source - who preferred to remain anonymous - was sympathetic towards Trustmarque.
"If they were sharing information, it is reasonable to take steps to prevent anyone from doing something like that [poaching staff]," said the source.
On good terms
Angelo Di Ventura (pictured right), sales and marketing director at Trustmarque, claimed that the stipulations contained in the pre-acquisition documents were nothing out of the ordinary. He also praised the commitment of the firm's workers and pledged to act against anyone contravening the terms of the clauses.
"It's correct that parties interested in acquiring Trustmarque were asked to sign a legal document as part of the due diligence process designed to protect our business. This was perfectly normal practice and in fact it would have been irresponsible of us not to ensure such terms were in place before talking to interested parties," he said.
"We've been impressed with the loyalty our staff have shown, especially in the face of some of the noise being made by our competitors. We have moved on and it's back to business as usual building a strong services-led business. Clearly you'd expect we'll take action against any organisation that breaks the terms of the agreements they entered into with us."
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