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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 45303
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I work in recruitment and represent a Junior / Admin level

Resolved Question:

I work in recruitment and represent a Junior / Admin level candidate. (circa 13K salary) in an Vehicle company. She has attained a role elsewhere (also in vehicle leasing company) so there is now a conflict. She tendered her resignation and they escorted her off site due to this yesterday and put her on 4 week garden leave.
She / we are worried that the 4 weeks will not be good for her new employer. Anyway we can get out of this? How can they stop her starting her new job with the other vehicle company? The role is RECEPTIONIST and nothing above entry/junior level
Submitted: 1 year ago.
Category: Employment Law
Expert:  Ben Jones replied 1 year ago.
Hello, my name is***** am a solicitor on this site and it is my pleasure to assist you with your question today. Do you mean you want her to escape from the garden leave obligations and leave with immediate effect?
Customer: replied 1 year ago.

Hi Ben. Thanks for coming back to me. Basically, they see the company she is moving to as a competitor. (She tendered her resignation yesterday, they asked her to leave immediately and put her on Garden Leave for 4 weeks)

I think this Garden leave is unreasonable and sure even IF she started at her new employer they wouldn't start legal action for damages as her leaving will not result in loss for the business. She is 20 years old and her role was entry level Administration. She is moving to a Receptionist position. I appreciate Garden Leave / Covenants in contracts for Senior Executives/Senior Infrastructure positions or employees whom would take business from one employer to another but she had no dealings at this level and was very much ADMIN.

Even if they pushed legal route surely they wouldn't have grounds or be able to prove loss?

Just your thoughts on this Ben would be of interest. To be honest, she is going to forget the Garden leave and start at her new employer ANYWAY. She actually proposed to work some notice to help them etc which was refused. Basically their nose is 'Out Of Joint'

Expert:  Ben Jones replied 1 year ago.
Hi there, does her contract contain a garden leave clause?
Customer: replied 1 year ago.

Hi Ben - Please see attached clause

Expert:  Ben Jones replied 1 year ago.
Thank you. So there is a garden leave clause and also a restrictive covenant preventing her from working for a competitor, amongst other restrictions. There are two scenarios here: One is if she ignores the garden leave period and begins to work for the other employer. She would be in breach of the garden leave clause and the employer would not have to pay her for the notice period she was due to get from them, which would have covered the garden period. So in effect she would lose out on 4 weeks’ pay. The second is to do with the restrictive covenants and what the employer can do to enforce them. Post-termination restrictive covenants are a rather common occurrence in employment relationships. An employer would want to protect their business from a departing employee's knowledge, business connections, influence over remaining staff, etc. However, a covenant that restricts an employee's post-termination activities will be automatically unenforceable for being in restraint of trade, unless the employer can show that it was there to protect a legitimate business interest and did so in a reasonable way. Legitimate business interests (LBIs) are commonly accepted to include:{C}· Goodwill (including supplier and customer connections){C}· Trade secrets and confidential information{C}· Stability of the workforce An employer cannot apply a restrictive covenant just to stop someone competing with their business, but it can seek to stop that person using or damaging their LBIs by using a reasonably drafted covenant. Non-competition covenants prevent an employee from working with a competing business or setting up to work in competition with their ex-employer. Such general restrictions are seen as a restraint of trade and will be difficult to enforce. They will only be seen as reasonable if in the process of working in competition, the employee uses trade secrets or sensitive confidential information belonging to their ex-employer, or their influence over clients is so great that such a restriction is necessary. The length of the restriction and its geographical coverage will also be relevant. Whilst restrictive covenants are mainly used as a scare tactic by employers, if an employee has acted in breach of a covenant and the employer is intent on pursuing the matter further they can do so. The following are potential outcomes if the employer takes legal action:{C}· Obtain an interim injunction preventing the employee from doing certain things that would make them in breach of the restrictive covenant{C}· Seek compensation for damages that have directly resulted from the breach of the covenants As you can see there are no hard and fast rules on restrictive covenants. Whether a specific restriction is enforceable will always depend on the individual circumstances, the interest being protected and whether it has been reasonably drafted. The above principles are what the courts will consider when deciding whether a restriction is going to be legally enforceable. For someone in such a junior position I find it extremely unlikely that this would go any further. I trust this has answered your query. I would be grateful if you could please take a second to leave a positive rating (selecting 3, 4 or 5 starts at the top of the page). If for any reason you are unhappy with my response or if you need me to clarify anything before you go - please get back to me on here and I will assist further as best as I can. Thank you
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 45303
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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