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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 44957
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I work as a travel agent. I have been doing private work (NOT

Resolved Question:

I work as a travel agent. I have been doing private work (NOT customers of my employer - merely friends and family) and my boss has now found out. While I agree that this may be slightly immoral of me - I have honestly seen it as no different to a hairdresser that carries out private work away from their salon employer. Now he has found out, my boss has suspended me. Does he have any claim on the commission I have earn from my private bookings? I don't know if it's pertinent, but I have been on maternity leave for two years of the the four I have been doing this.
Submitted: 2 years ago.
Category: Employment Law
Expert:  Ben Jones replied 2 years ago.

Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today. Do you have any clauses in your contract that states you cannot do what yo have done?

Customer:

not to my knowledge. I did ask for a copy of my contract before I left this morning, but was told it's at my boss's home, so I asked of a copy to be e-mailed to me.

Customer:

sorry for the delay on this, I was waiting for a msg to pop in to my mail!

Customer:

Just to let you know I have worked there for 17 years so the contract is very old, and that's why I don't really remember it. I did scan it a while ago and couldn't see anything that referred to not working outside of the company but wouldn't swear to it.

Ben Jones :

Hi, sorry for the delay, I was offline by the time you had replied. And what about commissions - are you asking for commissions earned for work already done? Is there anything that says the employer can withhold these?

Customer:

I don't earn commission. I'm just salaried

Ben Jones :

But you asked if the employer has any claim on the commission from previous bookings?

Customer:

the bookings I have done as myself earn me a commission. These bookings have all been for customers that are private friends/family/recommendations and are not clients of my employer. The letter from my boss says that I have "diverted earnings from (the company) for my own personal gain". The letter doesn't mention him trying to get his hands on any of my personal commission earnings, but it's just something he mentioned this morning about getting the police involved!

Customer:

With my sensible head on I know that I haven't broken any laws and the best he could do is some kind of civil case/claim. Am I correct?

Ben Jones :

ok let me get my response ready please

Customer:

Thanks.

Customer:

Is there anything else you need to know from me?

Ben Jones :

not for now, thanks

Ben Jones :

You are correct that what you have done may be seen as immoral, but it would not necessarily be illegal. Such restrictions would generally be covered by contractual clauses, where your contract specifically prohibits you from doing such things and if you do then it may make you in breach of contract, which could be a disciplinary matter. However, in the absence of that, and assuming that you have not impacted your employer’s business by taking away their clients or affecting their business in any way, your actions would not be unlawful. It is certainly not anything that the police would be interested in so do not worry about such threats – this is not a criminal matter, it is a purely civil one. In terms of taking civil action against you, the employer can only really do so if you have breached your contract and they have suffered losses as a result. I that is not the case they will struggle to take this to court and show they had a valid claim against you. They could seek to take disciplinary action, for example for breach of trust, but that is still just an internal issue and not something that is pursued through the courts. The employer also cannot force you to pay them the commission on earnings from this, as this was not something they would have been entitled to in the first place as these were not their clients.

Customer:

Thank you - that confirms everything I thought. If I am wrong and there is a clause in my contract that prohibits me working outside of the company/for another company in the same industry and he decides to lay claim to my earnings; realistically how easy is that for him to do?

Customer:

sorry - I hit enter too soon then.

Customer:

The breach of contract and dismissal I'm not particularly worried about to be honest. I had planned to resign in a few months time anyway. As I'm suspended on full pay then I expect my pay as normal this Thursday and the only thing I think I will miss out on is unused holiday pay from when I was on maternity leave until Jan of this year. As I don't want to return anyway, do I have to attend the disciplinary hearing? Would you have a recommendation either way? I was thinking about just writing a letter explaining why I won't be attending and saying how sorry I am to be leaving under a cloud after 17 years working for him.

Ben Jones :

do you have a contractual notice period to leave?

Customer:

I guess a month.

Ben Jones :

To pursue you for commission won’t be easy, they have to take you to court, show you had breached your contract and that they have suffered direct losses as a result – they cannot penalise you by taking your commission, it must be a loss suffered by them for them to claim it.


 


As long as you are an employee you would be expected to attend a disciplinary, although you cannot be forced to do so and the worst is they can sack you in your absence. You could just hand in your notice now and let it run, hoping that nothing happens in the meantime, or if they go to a disciplinary you can try getting signed off sick and delaying your attendance until your notice expires, then just leave

Customer:

They want the hearing on the 28th of March (this Friday!) which I have told them I can't do. Unless it's to my benefit financially I think I'd rather just not have anything else to do with it. If I get signed off sick though and am unable to attend a hearing, would they still have to pay me..? Don't get me wrong I'm not happy about walking away from the money of unused holiday as it's approx £1600, but I don't know if there's a way of me still getting this. I don't think being "sick" is an answer though, as apart from anything else we don't get sick-pay. I guess I could be "sick" for the whole of April and effectively use up 2013's holiday. All seems a bit messy though.

Customer:

If I just hand in my notice, are they still obliged to pay the 2013 unused leave? Mind you, I don't think they will and I really don't think I'd want to get in to trying to force my boss to do so - although I'm not sure what it would entail.

Ben Jones :

If you are off sick, then you are entitled to whatever sick pay your contract allows you, or it would just be SSP. You could just try walking away from it all, resigning with immediate effect - if you have a contractual notice period you could be in breach f contract but it is rare for a claim for that to be made by the employer. Even if you resign in breach of contract, they must still pay you for any unused statutory leave

Customer:

So just to clarify: I will postpone the hearing until the 31st of March and attend simply to hand over my letter of resignation. - I can resign with immediate effect on the 31st of March, and use up my 2013 leave in lieu of notice ( I think I've got just enough to cover April as I work 3 days a week) in which case I'd get paid for that at the end of April.

Customer:

I really don't want to attend a hearing/meeting at all, so I may just post/e-mail resignation to my boss on the 31st (depending on what you say about the idea previous)

Ben Jones :

The employer can refuse to allow you to use up your annual leave as part of your notice, but they must pay you for it if you leave and still have some owed.

Customer:

cool thanks. And the letter idea..

Ben Jones :

yes you can do so

Customer:

I will let you go - I promise, but I just want to check if you think the letter is a good, okay or terrible idea please

Ben Jones :

that could be difficult to predict as it would depend on how the employer takes it, and that is entirely subjective, something I cannot predict. But I have seen many examples where employees have done so without issues

Customer:

Thanks. I strongly suspect that I won't get paid for annual leave whilst I was on mat' leave, but I'm going to go for this option, keep my fingers crossed and go for the (hopefully) more peaceful option.

Ben Jones :

it's your legal right to get paid for that leave so if they refuse to pay you, then you can take it further if necessary

Customer:

Even if I've resigned to avoid a disciplinary hearing that will almost certainly result in my dismissal?

Ben Jones :

it is a legal right

Ben Jones :

so not influenced by your actions in that respect

Customer:

Super - thank you very much. I shall check exactly how much annual leave I have and go down that route.

Ben Jones :

great, best of luck

Customer:

will I still be able to read this thread once I've rated you?

Ben Jones :

yes it will be available to view

Customer:

Thanks again. Fingers crossed I won't have to pester you for assistance in getting my holiday pay from them!

Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 44957
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
Ben Jones and other Employment Law Specialists are ready to help you
Customer: replied 2 years ago.

Hi Ben,


 


I've had a copy of my contract e-mailed over to me and unfortunately there is a clause that states


 


"If the employee has interests outside the company which in the opinion of the company conflict with the interests of the company, he/she may be asked to leave the service of the company"


 


and this ...


 


"The company reserves the right to suspend the employee on full pay pending an investigation where the company has reasonable grounds to believe his/her continued employment by the company might be prejudicial to the company's clients and all others with whom the company deals or the company's business or other members of the staff"


 


Can I just have your opinion on whether this changes anything we spoke about yesterday. Obviously that first contract quote is the most pertinent and that just says I will be asked to leave. I don't know if the second quote really means anything.


 


I'm just worried about him launching some kind of civil case against me as he has somehow managed to obtain the names of some of my clients. I don't know how - I can only think that he has either had my private e-mail account hacked, or one of the tour operators I have booked my private clients with has broken data protection and given my boss information from my bookings.


 


As I said yesterday I haven't approached any clients of the company I work for. There are approximately 4 of my clients that I have previously /subsequently booked through my company, but these are my family and friends.


 


I look forward to hearing from you,


Julie-Ann

Expert:  Ben Jones replied 2 years ago.
Hi, the second clause is standard and simply allows the employer to suspend you in the event of a workplace issue, but that is nothing new – it is not a penalty in any way, it is just a precautionary measure whilst they investigate.

Before I deal with the first clause can I check if you are an employee or are you freelance/contractor/self employed?
Customer: replied 2 years ago.

i am an employee


 

Expert:  Ben Jones replied 2 years ago.
The first clause basically implies that having conflicting interests may result in the termination of your employment, however an employer cannot just rely on such a clause to dismiss you without showing there was a fair reason for dismissal and also follow a fair procedure. You are protected against unfair dismissal so the employer must show they have acted fairly. They cannot rely on the clause alone and must follow due process. For example, they must show that your actions were serious enough to justify dismissal, but if you did not impact on their business in any way, took away clients, etc then dismissal would be a harsh outcome especially considering your length of service. So it is far from a foregone conclusion and there are still many procedural steps the employer must take to justify there was a potentially fair dismissal. As to a civil claim, that is unlikely to succeed, especially if no losses have been suffered by the employer.
Customer: replied 2 years ago.

I'm seriously not worried about the dismissal part. I was going to leave anyway this summer and as I will not be looking for another job the lack of reference doesn't even bother me particularly. My concern is the matter of him coming after me for any money, and as my employer is a wealthy man I am worried about him just wanting to make me suffer, regardless of financial cost to himself. I am pretty sure though, that somebody somewhere has acted incorrectly and possibly illegally (I assume breaking data-protection is a crime?) in providing information on my clients to my boss. Does this give me any kind of leverage do you think?


 


I am still planning on simply resigning, using my unused annual leave (from whilst on maternity last year) in lieu of notice, which according to your advice yesterday, I should then get paid for.


 

Expert:  Ben Jones replied 2 years ago.
any potential breaches of data protection will not stop him from taking this further if he really wanted to. Strictly speaking there is nothing stopping him from making a claim and trying his luck, even if the chances of winning are slim. Anyone can make a claim, it is whether they succeed that matters in the end, so you may have to face that if he is really intent on making things difficult for you, but only time will tell
Customer: replied 2 years ago.

would you recommend I put it in writing to him that I have never poached, or even approached any of the company's customers or could this backfire on me due to the overlap of a few of my friends/family I have booked via the company. Should I just make this clear in a conversation, or simply ignore, resign and hope he leaves me alone?


 


 

Expert:  Ben Jones replied 2 years ago.
There is probably no need to say what you have or have not done, unless necessary, such as if he tries to make a claim against you when you can formally defend the allegations
Customer: replied 2 years ago.

Thank you. In light of everything you've said, and given that I want to leave anyway I'm sending the following


 


30th March 2014


 


Dear XXXX


This is my letter as my resignation. I believe I have enough annual leave to cover my notice period of one month from the date of this letter.


Yours sincerely


 


 


The hearing has been rearranged for next Wednesday 2nd of April, so I will follow the letter up with an e-mail advising in light of my resignation I will not be attending the disciplinary hearing.


 


Does that all seem okay to you, or would you recommend anything different?

Expert:  Ben Jones replied 2 years ago.
Yes more or less ok, just perhaps include a bit more detail in the letter.

"Please treat this as formal notice of resignation from my employment with XX. According to my calculations I have X days annual leave outstanding and wish to take this during my notice period, which would mean I will be officially on annual leave until the end of my employment. "
Customer: replied 2 years ago.

Will do. And you think the follow up e-mail about the hearing is okay too?


 

Expert:  Ben Jones replied 2 years ago.
yes you can say so
Customer: replied 2 years ago.

thank you. I think I've just got to do it now and leave it at that. I appreciate your help and I've just actioned a tip.


 


Many thanks


Julie-Ann


 

Expert:  Ben Jones replied 2 years ago.
Much appreciated, thank you and all the best
Customer: replied 2 years ago.

Hello Ben


 


sorry to bother you again, but I have just received my March pay. It's a cheque that's been posted to me rather than the usual BACS payment. However it's short by just over £450.


 


I have e-mailed the company and the reply is


"Your pay has been calculated up to the date of the Disciplinary Hearing letter. Once the company has considered your comments at the hearing, if any pay is contractually due to you, it will be paid."


 


As I haven't agreed to this, am I correct that this is unlawful deduction of wages?


 


Thanks

Expert:  Ben Jones replied 2 years ago.
Hi, yes you are correct, the employer cannot do this. It does not matter if you are a facing a disciplinary or not, you are legally entitled to be paid up to date by the time the wages are due. If the employer wanted to withhold part of your pay, for whatever reason, they need to have you written consent, either through having a clause in the contract allowing that, or having some other separate agreement in place.
Customer: replied 2 years ago.

Hello Ben,

I hope you can advise me on the current situation with regard to the previous correspondence :

 

I e-mailed a letter today to resign. I was just about to follow this up to advise that in the light of my resignation I would not be attending the disciplinary hearing tomorrow (in the local pub!) However, I have just received this e-mail:

 

Dear XXX, I refer to your letter of resignation dated 31st March 2014. In view of the gravity of the allegations, we do intent to go ahead with the Disciplinary Hearing tomorrow as planned. Of course you should attend to set out and explain your own position in response to the allegations against you.

As you know, I don't wish to attend. What do you advise I do please?

Customer: replied 2 years ago.

Hi Ben


are you able to address the my last question, or should I start again with a new question? It's just obviously there's background to consider.


 


Thanks

Customer: replied 2 years ago.
Relist: Incomplete answer.
please see the reply thread

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