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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46146
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I handed my notice in last week. I have to give one month's

Resolved Question:

I handed my notice in last week. I have to give one month's notice which I did. My current employers said the company I was moving to was in a similar business and asked if it was possible that I could ask my new employers if I could start earlier. I did not see that much of an overlap when I agreed to take the job but I was a give a date two weeks forward and when I gave them that date they said they would pay me until then but I could leave immediately. Later I received a letter saying that I was on garden leave weeks and could not work or do anything new employer until then to enable them to protect myself. I also had to be available . I then received a call from my new employer asking if I can start a week earlier because they knew I had been released. I did have a gardening leave provision in my original contract of employment but I personally believe that this is not protection at all but to avoid me being paid twice and save them money.
Should I start early and pocket the extra week's pay and fight any claim if they make one or should I contact my previous employers and ask to be released from gardening leave a week earlier?
Submitted: 2 years ago.
Category: Employment Law
Expert:  Ben Jones replied 2 years ago.
Ben Jones :

, my name is ***** ***** it is my pleasure to assist you with your question today. If you started early how would it affect your old employer?

Customer:

I am being paid until 9th. If I start next week they would want to pay me until 2nd and avoid paying me that week. other intents I do not see how it will affect them. In the letter they say they want me to be available if required but they told me verbally it was in their interests to leave immediately. They also said it would help them financially if they did not have to pay me my month's notice.

Customer:

I spent half a say doing full handovers of all of my activities. My new employers do have a business overlap but my job is to manage their existing customers none of which I believe operate in the same market sector. In the short term at least I will not be involved in generating new business or competing with my previous employer.

Ben Jones :

will the old employer find out you had started early, if you did so?

Customer:

I don't know. It's possible. They may decide to call me and ask me to come to the office as a ploy or call my new employer and ask to see if I'm there. There is a good chance they would not know but it's not impossible. I was up front about where I was going.

Customer:

I had assumed that gardening leave was about protecting my previous employer's interests not about saving them money. If I had originally given them this Monday's date they would have just accepted that. I know that. Maybe I can't prove it but it was clear from my discussions with them.

Ben Jones :

If you were to start earlier, in breach of the garden leave clause, then all the employer can realistically do is try t claw back the money they paid you time. It is highly unlikely that they can prevent you from working new employer or seek any further compensation as they are unlikely to have suffered further losses. Whilst no one can predict whether the employer will go ahead and pursue you week’s pay it is probably quite a low risk because the money they may get back will unlikely justify the time and costs they will spend on oursuing this.

Ben Jones :

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

Customer:

If they did pursue anything what would my likely expenditure be to present a case? Would I have any defences? I estimate the money week would be £650 before tax.

Customer:

Or would I just send them the cash and that would be that?

Customer:

?

Ben Jones :

amount it will go to the small claims court and each side will bear its own costs so even if you lose you will not have to pay out much, you may be asked to pay back their claim fee but around £100-150 should cover it, together with whatever you are asked to pay back. As mentioned your defence would be that the employer has not suffered any losses as a result and that the restriction in this case is likely to be unreasonable and unenforceable

Ben Jones :

Does this clarify things or can I assist further?

Customer:

Thank you

Ben Jones :

you are welcome

Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46146
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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