An "engaged" employee can still be "a real flight risk", says SHL director Stephanie Christopher - especially in a situation where a leader, "who they may have personal respect for and loyalty towards", leaves the company. "An employee might be very happy in their job and engaged with their job, but not the company," she says.
"If a leader goes somewhere, the first thing they're going to is look for talent that's going to help them to be successful, and then it's very common that they'll be interested in people that they've worked with before."
In cases where a departing or former leader offers employees "the same satisfaction and motivation" they are getting from their current role at a different, potentially better organisation, there is "a real risk" of losing talent, she explains.
Consequently, what is really useful, is an engagement model that looks at an employee's engagement with both their role and the organisation, Christopher says. If employees are only engaged by their respective roles, the increased mobility and opportunities of today's market might prove tempting.
If, on the other hand, they are "committed to, and motivated by, and engaged with the organisation" but do not like their current role, "they're more likely to find a way to make it work within the company they're in, or be open to a different way to working with the organisation to stay there", she says.
By finding out what each employee values, and whether or not it is available to them in their current role, significant "gaps" between what they want and what they are getting can be identified and addressed.
Identification is important because "if they don't really rate it... it doesn't really matter", Christopher says.
Guard against poaching
Anti-poaching clauses might be a standard feature of an employer's senior staff contracts, but many "let themselves down in this area" by failing to adequately "tailor" the clause on a case-by-case basis, says Freehills Partner and employee relations expert Darren Perry.
Rather than have standardised provisions that are "applied in the same way to different people", employers should use stronger provisions for leaders that are more likely to have a following, he says.
Perry suggests periodically re-evaluating senior staff contracts. Ask: "What impact can this person have on us if they leave?" and include a stronger, or weaker, provision depending on the level of risk, he says.
In cases where employees leave an organisation to join their former manager's ranks, a Court must determine whether employees were actively "poached", or left of their own free will, before granting a discretionary remedy. If employees deny being approached, obtaining sufficient evidence can be difficult. "That's where the forensic accounting guys who do email trawls and all that kind of stuff come into play," Perry says.
When considering a leader's employment contract, the Court will ask whether certain provisions are reasonable. An anti-poaching clause that relates to employees a leader has worked with "fairly closely" is more likely to be enforced than one for an employee who lacks "the capacity to influence others".
This means a clause which directs a leader against "poaching" any employee, "whether they know them or not, is probably getting too broad [and] will be considered unreasonable", Perry says. "But if the provision is limited to the people that the leader had a close working relationship with... that should be enforceable - for a period of time; not forever but for six, maybe 12 months."
In deciding whether to grant an injunction to put a stop to poaching, the Court "weighs the detriment to the employer versus the detriment to the people". If the impact on the employer's business is significant, due to the large number of employees leaving, intervention is more likely.
Although Perry admits morale is an "amorphous" concept, "if you could show that there was a very significant impact that was going to cost the employer money, then that's potentially relevant" too, he says.
