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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 44954
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I am a consultant letting agent and have never been

Customer Question

I am a consultant letting agent and have never been given any terms of business or anything to say I can't do letting or any other business whilst working agent. I have now handed in my notice and the company are asking me to sign a contract banning me from working within letting years or another company. I have refused to sign it as I have never been given a contract or terms of business and this is what i got back. Not sure what they are threatening me with or accusing me of or where i stand legally, can you help? They have come back to reduce it to 12 months but I really do not want to sign it.
"I obviously can’t make you sign your termination of consultancy however it protects both parties, I’ll give you a hypothetical scenario:
A consultant is working without a contract on a month to month basis, during which time they invoice services and are duly paid, the consultant decides to leave the role and after leaving it comes to light the consultant has been using their time under the tenure of her consultancy role to create a client base or sign up business own good, whichever industry this was to be in would raise, if proven a legal action for “passing off” and a breach of duties and confidentiality, again if proven the company would seek to “claw back” any invoices paid during the tenure of the consultancy period.
So in essence a termination of consultancy with a restricted covenant (I’ll check that with my solicitor) protects both parties."
Submitted: 1 year ago.
Category: Employment Law
Expert:  Ben Jones replied 1 year ago.
Ben Jones :

, my name is ***** ***** it is my pleasure to assist you with your question today. Did you do any of the things they mention, such as building a client base or taking business away from the company?

JACUSTOMER-268rojpr- :

Ben I did do other work whilst working but in my own time. There were no guidleines set to say I could not do anything else and have not built a client base from there database.


I suppose what I need to know is firstly do I need to sign the end of consultancy contract?



Pauls hypothetical scenario (not quite sure what this is directed at), can he claim to claw back money he has paid me which I must add I have basically worked 24/7, 365 days per year yes I have a few other jobs that I do and manage a few family and friends letting properties personally which Paul was always aware of but I have no proof to say he did not have any problems with it. Can he do this? My opinion would be no contract, no guidelines means I can basically do what I want but am worried I am missing something which is why I wanted to seek advise from yourself.



My opinion is the sale of the business may have a clause that himself and letting manager needs to sign to protect me going after any clients when I leave. I believe that if I do gain any clients after I leave the business from the relationships I have built whilst there Paul may loose money from the sale as I think there is normally a 6 month or 1 year break clause if you sell a letting portfolio. I can see if this is the case this is why he is being so forceful to sign. I basically had no plans to seek business from his portfolio but simply don't want him to stop me from earning a living. Should my print job not work out I need a plan B.



If he does not have a case and things end bad between us can you also advise if legally I can pursue his clients without any comeback from him?

JACUSTOMER-268rojpr- :

Ben I did do other work whilst working but in my own time. There were no guidleines set to say I could not do anything else and have not built a client base from there database.


I suppose what I need to know is firstly do I need to sign the end of consultancy contract?



Pauls hypothetical scenario (not quite sure what this is directed at), can he claim to claw back money he has paid me which I must add I have basically worked 24/7, 365 days per year yes I have a few other jobs that I do and manage a few family and friends letting properties personally which Paul was always aware of but I have no proof to say he did not have any problems with it. Can he do this? My opinion would be no contract, no guidelines means I can basically do what I want but am worried I am missing something which is why I wanted to seek advise from yourself.



My opinion is the sale of the business may have a clause that himself and letting manager needs to sign to protect me going after any clients when I leave. I believe that if I do gain any clients after I leave the business from the relationships I have built whilst there Paul may loose money from the sale as I think there is normally a 6 month or 1 year break clause if you sell a letting portfolio. I can see if this is the case this is why he is being so forceful to sign. I basically had no plans to seek business from his portfolio but simply don't want him to stop me from earning a living. Should my print job not work out I need a plan B.



If he does not have a case and things end bad between us can you also advise if legally I can pursue his clients without any comeback from him?

Ben Jones :

, the employer would not have a strong case in these circumstances. First of all, if they want to enforce post-termination restrictive covenants they would require an agreement signed and agreed by you, your contract if the restrictions were in there or some other separate agreement. If they try and introduce an agreement at a later stage which would serve to restrict your post-termination activities, then if you do not wish to sign it, you would not be bound by it. No one can force you to sign this agreement so if you are not comfortable with its contents you certainly do not have to sign it.

He has mentioned ‘passing off’ and breach of duty and confidentiality. This has nothing to do with passing off, and whether it is a breach of other duties will really depend on what your conduct was. There is a legal principle called ‘duty of fidelity’, which is implied by law into every contract of employment. This provides employers with protection against competitive or harmful activities carried out by employees. This duty continues long as the employment contract exists and imposes an obligation on all employees to provide honest, loyal and faithful service during their employment. So you should not act in competition or make secret profits by using their employer’s business. However, this duty only applies whilst your employment with them lasts so once you leave, it ceases. Therefore, it is only used to potentially discipline or dismiss an employee found to be in breach of this duty and only whilst they are employed by the company.

The employer cannot realistically claw back sums paid to you unless they can show that there was either a specific contractual clause allowing that or that you had clearly breached the duty of fidelity whilst generating the earnings in question.

Hope this clarifies your position? If you could please let me know that would be great, thank you

Ben Jones :

Please let me know if this has answered your original question or if you need me to clarify anything else in relation to this? Thanks

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