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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 46743
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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I have recently approached my boss who is a florist to ask

Resolved Question:

I have recently approached my boss who is a florist to ask if i can change my contract to freelance. She is not happy about this saying she is very competitive and would not be happy if i secured work outside of my role. Currently am on a 8 hr contract as a florist assistant/driver but do mainly drive. I have noticed there is a clause in my contract that states i am not able to be involved within any business within a five mile radius of the company's premises on termination of contract for six months.
I am looking to work from home to generate more income for myself and am unsure if I am able to run my business as I currently live in the same town?
I have been training for two years as a florist at my own expense and am due to graduate in June.
Please can you tell me if I can start up a business or will I have to wait the six months.
Submitted: 3 years ago.
Category: Law
Expert:  Ben Jones replied 3 years ago.

Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today.

Ben Jones :

Will you be taking some of the company's clients with you if you were to do this?

Customer:

No .I am looking to find contractual work further afield

Ben Jones :

So how will you starting a business affect the employer?

Customer:

She is not happy about one of her employees going freelance. She has stated she is very competitive and would be very unhappy if I was to start securing work that wasn't through her. I have signed my contract last year and wish to know if i cannot run abusiness for six months?

Ben Jones :

I presume you will leave the current employer if you were to start freelance (assuming she did not want to allow you to work in that way)?

Customer:

Yes I would leave. I have asked her about freelancing she has said no.

Ben Jones :

ok let me get my response ready please

Ben Jones :

Whilst you can propose to the employer that you change to being freelance, the employer is not obliged to accept such a request and if you cannot reach any agreement over this then you may have to leave if you wanted to.


 


The issue then is what can you do once you have left and if you will be bound by any existing contractual restrictions.


 


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:



  • Goodwill (including supplier and customer connections)

  • Trade secrets and confidential information

  • 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. There are a few different types of restrictive covenants that can be applied, these being:


 


Non-competition covenants, such as the one you have, 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:



  • Obtain an interim injunction preventing the employee from doing certain things that would make them in breach of the restrictive covenant

  • 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. It should give you a good idea of what to look for in your situation and decide what the chances of this being pursued further are.


 

Customer:

Clause 16.1 of my contract states : For the period of 6 months the termination of your employment, you will not either on your own behalf or with any other person.entice away from the company any client,or employee or be involved in any BUSINESS within a five mile radius of the companys premises or your recent work place.

Customer:

This does not mentioned in this clause floristry business. Or can I not obtain any form of employment?

Ben Jones :

They will never be able to enforce such a wide and general restriction - to prevent you from working for ANY business is ridiculous

Ben Jones :

At most it will be to prevent you from setting up a competing business where you are actually taking away their clients

Customer:

Thank you for the advice .

Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 46743
Experience: Qualified Solicitor - Please start your question with 'For Ben Jones'
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