ChatterBank0 min ago
Am I bound by restrictive covenant clause if I have never signed let alone seen a copy of the contract?
18 Answers
I started working for a loan trader a year ago and never recived a contract of employment. I decided to end my employment and handed in my letter of resignation; I did not work any notice as I did not think that I was bound by any contract and she accepted that. I then decided to start my own company in the same field and then I reciecieved an email...Here is a copy of what she wrote to me,I'll remind you that I did not sign a copy of this contract and didn't see a copy of this until I recieved the following email....
" Without prejudice:
It has been drawn to my attention that you are currently attempting to set up an ironing business. I would like to draw your attention to the 'Post Employment Restrictions' clause of your employment contract (copy attached for your reference), supplied to you in November 2010, which states:
For a period of six months from the date your employment ceases you are prohibited in setting up a similar business through your employer within a ten mile radius of both your employer’s and your home address.
In addition you are prohibited in working as an Ironing Assistant within a ten mile radius of your employer’s home address.
You are not to solicit any of your employer’s customers for a period of six months from the date your employment ceases.
By attempting to set up an ironing business before the end of six months from the 23rd May 2011 you are clearly in breach of this clause. You may be under the impression that, having not signed and returned your written copy of the contract, you are not bound by this – however this is not the case. Acceptance of a contract is defined as ‘a positive act by a person to whom an offer has been made which, if unconditional, brings a binding contract into effect’ and may be by express words, by action or inferred from conduct. By continuing to work for Ironing Angel after receiving a copy of the employment contract the courts would find that you have, by your conduct, agreed to the terms of the contract of employment offered to you.
I strongly urge you to reconsider your current course of action, and would like to inform you that we have already obtained advice from our legal protection consultancy service on this matter."
I would like to know as I have not seen or signed a copy of the contract with the restrictive covenant clause if I am bound by it as she says? I have invested alot of my own money and it's just sat in my house collecting dust now.. It seems to be her word over mine when she say's she "supplied me with a copy in November 2010". I did not see the contract until I recieved the email on the 1/6/11 Please can anyone help?
" Without prejudice:
It has been drawn to my attention that you are currently attempting to set up an ironing business. I would like to draw your attention to the 'Post Employment Restrictions' clause of your employment contract (copy attached for your reference), supplied to you in November 2010, which states:
For a period of six months from the date your employment ceases you are prohibited in setting up a similar business through your employer within a ten mile radius of both your employer’s and your home address.
In addition you are prohibited in working as an Ironing Assistant within a ten mile radius of your employer’s home address.
You are not to solicit any of your employer’s customers for a period of six months from the date your employment ceases.
By attempting to set up an ironing business before the end of six months from the 23rd May 2011 you are clearly in breach of this clause. You may be under the impression that, having not signed and returned your written copy of the contract, you are not bound by this – however this is not the case. Acceptance of a contract is defined as ‘a positive act by a person to whom an offer has been made which, if unconditional, brings a binding contract into effect’ and may be by express words, by action or inferred from conduct. By continuing to work for Ironing Angel after receiving a copy of the employment contract the courts would find that you have, by your conduct, agreed to the terms of the contract of employment offered to you.
I strongly urge you to reconsider your current course of action, and would like to inform you that we have already obtained advice from our legal protection consultancy service on this matter."
I would like to know as I have not seen or signed a copy of the contract with the restrictive covenant clause if I am bound by it as she says? I have invested alot of my own money and it's just sat in my house collecting dust now.. It seems to be her word over mine when she say's she "supplied me with a copy in November 2010". I did not see the contract until I recieved the email on the 1/6/11 Please can anyone help?
Answers
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For those using this site for more than a year – Ethel (where is she now, when I need an argument) used to regularly post that such employment covenants could be enforced by law.
I, in turn, pointed out that this was complete botox – otherwise supermarkets could stop check-out staff (or shelf stackers) taking employment with a rival chain via such restrictive employment contracts.
One reason that the law will have no truck with such nonsense is that the State would have to pick up the unemployment tab, while ex-staff seek employment that their previous employer deem acceptable to them.
Where your previous employer has written ‘and would like to inform you that we have already obtained advice from our legal protection consultancy service on this matter’ – that advice is likely to be that there is f*ck all they can do about you starting any such business, should you chose to do so.
I, in turn, pointed out that this was complete botox – otherwise supermarkets could stop check-out staff (or shelf stackers) taking employment with a rival chain via such restrictive employment contracts.
One reason that the law will have no truck with such nonsense is that the State would have to pick up the unemployment tab, while ex-staff seek employment that their previous employer deem acceptable to them.
Where your previous employer has written ‘and would like to inform you that we have already obtained advice from our legal protection consultancy service on this matter’ – that advice is likely to be that there is f*ck all they can do about you starting any such business, should you chose to do so.
"Denying an individual the ability to work and make a living in an industry in which they are experienced and in which they have developed a specific set of skills is not something which would ever be done lightly by the courts. Accordingly, covenants which seek to prevent any form of competition with a former employer are rarely enforced."
http://www.roydens.co.uk/content09.htm
Don't worry about it, carry on with your plans.
http://www.roydens.co.uk/content09.htm
Don't worry about it, carry on with your plans.
What the employer has written is essentially correct. However there is a whole area of contract law devoted to contracts in restraint of trade, which this is. It is so long since I studied it that I have forgotten the basic details. I do remember though that there is something called "the blue pencil rule" whereby courts can strike out clauses they deem to be unfair. An employment law or contract law specialist is your best bet. Not having signed the contract is not the issue, but the fairness of the particular clause.
My wife (a hairdresser) has just been handed a contract with a "restrictive covenant" clause included which attempts to stop her plying her trade within a 10 mile radius of her current employers address for 6 months from the end of her employment. I understand the employers stance and wishing to protect their business but in this case, a 10 mile radius seems to be very excessive as the salon is in Edinburgh and this would effectively stop her from working in the whole city (and large areas of West Lothian and Fife).
My wife is going to approach her manager about this and I'll let you know what the outcome is.
But what do you guys think ?
My wife is going to approach her manager about this and I'll let you know what the outcome is.
But what do you guys think ?
My wife (a hairdresser) has just been handed a contract with a "restrictive covenant" clause included which attempts to stop her plying her trade within a 10 mile radius of her current employers address for 6 months from the end of her employment. I understand the employers stance and wishing to protect their business but in this case, a 10 mile radius seems to be very excessive as the salon is in Edinburgh and this would effectively stop her from working in the whole city (and large areas of West Lothian and Fife).
My wife is going to approach her manager about this and I'll let you know what the outcome is.
But what do you guys think ?
My wife is going to approach her manager about this and I'll let you know what the outcome is.
But what do you guys think ?
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