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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 47842
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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Hello, my daughter has just been employed as a part time junior

Resolved Question:

Hello, my daughter has just been employed as a part time junior beauty therapist. The employees handbook states that she can't work as a beauty therapist for six months within a two mile radius of her current employers salon, should she leave.
She would like to get a permanent full time post which her employer is unable to offer her. Can her employer legally enforce this condition? It seems very heavy handed and unfair to me!!
Regards,
Babs
Submitted: 4 years ago.
Category: Employment Law
Expert:  Ben Jones replied 4 years ago.

Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today.
Before proceeding please note that as I am a practising solicitor, I am often in and out of meetings, travelling between clients or even at court when I pick your question up. This may even occur at weekends. Therefore, I apologise in advance but there may be a delay in getting back to you and providing my advice. Please be patient and I will respond as soon as I can. You do not have to wait here and you will receive an email when I have responded. For now please tell me what the contract says exactly.

Customer: I look forward to your reply ASAP.
Customer: the contract says'during your employment and for a period of six months following the termination of your employment you shall not (save with the express written consent of the employer) whether as an employee, consultant, freelance, contractor, agent or manager, whether on behalf of a third party or for your own account, carry out for payment or reward the craft or job role for which you were employed by this salon within a two mile radius of the place of employment specified in your contract.
Customer: also - during your employment and for a period of six months following the termination of your employment you shall not (save with the express prior written consent of your employer) whether as an employee, consultant, freelance, contractor, agent or manager whether on behalf of a third party or for your own account carry out any activity in the industry in which you were employed (including in the avoidance of doubt those activities that you have been directly involved in, in this case the beauty therapy industry), where that activity or duty are carried out in a property within a two mile radius of the place of employment specified within your contract.
Ben Jones :

 


Thank you very much for your patience. It is common for employers to want to protect their business interests from unfair competition by current and ex-employees. This applies especially to employees who have knowledge of sensitive and valuable information, have considerable influence over the workforce or have strong customer connections. However, at the same time it is in the public interest to ensure that employees are free to move between employers and use their skills, knowledge and experience in a new setting.


 


Whilst employers try and impose certain restrictions on their employees, under the doctrine of restraint of trade, any contractual term which seeks to restrict an individual's freedom to work for others or carry out his trade or business is illegal and unenforceable. The exception is when the employer can show it has a legitimate business interest that requires protection.


 


Legitimate business interests (LBIs) are commonly accepted to include:



  • Trade secrets and confidential information

  • Trade or customer connections

  • Stability of the workforce


 


An employer cannot impose a restrictive covenant merely to stop someone competing, but it can seek to stop that person using or damaging something which legitimately belongs to it, such as an LBI.


 


Non-competition covenants like the one here will generally be unenforceable, unless the employer can justify their use. As a matter of general law, once they leave employees are restricted from disclosing confidential information amounting to a trade secret. As with non-solicitation covenants, the restriction must be for a limited time. If she is simply working for another business without affecting her old employer's business in any way, like poaching clients, then it is unlikely that such a restriction would be legally enforceable.

Customer: Thank you, XXXXX XXXXX our question.
Ben Jones :

My pleasure, all the best

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