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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 46183
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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My employer has placed me on suspension pending disclinary

Customer Question

My employer has placed me on suspension pending disclinary investigation into a situation of potentially conflicting business interests. In my contract of employment it states 'for a period of 12 months following the date of termination of employment you will not, solicit or interfere with or make any endeavour to entice away from the employer or any associated company, any business concern, person, partnership etc have been a client or customer or supplier to the employer. Or engage in any business competition with the employer in any part of the UK or ROI in which the employer shall have been operating.
Am I able to manufacture and sell the same products made by my emolyer to clients that my employer is not currently trading with within the Uk and ROI, am I also free to trade with clients in Denmark and Belgium ie outside of the UK and ROI? Many thanks
Submitted: 1 year ago.
Category: Law
Expert:  Ben Jones replied 1 year ago.
Hello how long have you been there for and can you please upload the relevant clauses?
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 46183
Experience: Qualified Solicitor - Please start your question with 'For Ben Jones'
Ben Jones and other Law Specialists are ready to help you
Customer: replied 1 year ago.
It will be coming up to 10 years in May, relevant clauses enclosed. Please let me know if there is anything else you need? Many thanks
Expert:  Ben Jones replied 1 year ago.
Thank you please leave it with me i will look over these and get back to you this eve. In the meantime please confirm why you have been suspended, have you potentially breached these whilst employed by them?
Customer: replied 1 year ago.
Hi Ben, I have registered a new company and have been in touch with a number of medical clinics within the UK and Dennark, none of which are clients of my employer. Whilst I have engaged with them by email no sale has been made or agreed. All contact with potential customers has been done by email and phone, I don't believe my employer has any evidence of this just hearsay but should they get hold of a copy I was going to explain that I was gauging the level of interest to decide if it's worth investing in the equipment and an avenue to go down in the future. I have declared that the business has been set up as I plan to make items that are not available from my employer so there will be mo conflict of interest. I would like clarity if I am in breach of my contract and whether I can engage and sell to clients that my company are not trading with? Many thanks
Expert:  Ben Jones replied 1 year ago.
Thanks for your patience. First of all it is important to note that being placed on suspension is not an automatic assumption of guilt and does not amount to disciplinary action. It is there to be used as a precautionary measure whilst an employer investigates any allegations against the employee. Reasons for suspending could be in the case of gross misconduct, breakdown of relationship, risk to an employer's property, their clients or other employees, to preserve evidence or ensure it is not tampered with, avoid potential witnesses being pressured or intimidated, etc. During the period of suspension the employer should conduct a reasonable investigation into the allegations against the employee. If the investigation gathers enough evidence to justify the taking disciplinary action that could be the next step. In that case the employee has the right to be informed in advance of the allegations against them and be given the opportunity to prepare for the hearing. On the other hand, if the investigation does not find enough evidence to justify a disciplinary, the employer should terminate the suspension immediately and allow the employee to return to work as normal. As to the allegations against you, the restrictions about non-solicitation or dealing with clients are only effective after termination and for a specified period after that happens. So strictly speaking they are not applicable at present because they specifically state that they are to apply “for a period of 12 months following termination”. The restrictions that apply during your employment are concerned with retaining confidentiality and not disclosing it or any trade secrets. Saying that, you would still have a duty of trust and confidentiality under common law, regardless of what is in your contract. This requires you to act in a way which preserves the trust and confidence between you and the employer and could potentially cover any situation which can breach it. So if you are acting in competition with the employer even if there is nothing specific on the contract which covers it, that could be a breach of trust and confidence and still be subject to disciplinary action. In your case you are engaging with companies which your client is not trading with but you have to ask yourself the question – are they likely to have dealt with them at some point in the near future? Are you in effect interfering with potential clients of theirs, even if currently they are not their clients? This is what a court or tribunal may look at when deciding whether any action by you was a breach of trust and confidence.
Customer: replied 1 year ago.
Thanks Ben, the contract also specifically states U.K and R.O.I so am I able to trade with companies outside of these countries once my employment has been terminated, or could this still be viewed as breach of trust and confidentiality under common law? In theory any clinic in the world could be a potential client to my employer, would it be deemed fair and reasonable of them to prevent me from engaging and doing business altogether?
Expert:  Ben Jones replied 1 year ago.
Breach of trust and confidentiality is something which only applies whilst still employed by them, so once it terminates it is only down to the restrictions in place. In this case they state that it is only restricted to businesses in competition in UK or ROI. So the companies may be based abroad but if they compete in the UK/ROI then it may be a breach In general, 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.
Customer: replied 12 months ago.
Hi, Ben my employer has arranged a disciplinary meeting for Wednesday. If I hand in my notice before this date will they have to continue to pay me during my notice period and can they refuse to accept my request? Many thanks
Expert:  Ben Jones replied 12 months ago.
Hi, the employer cannot refuse to accept your resignation, so once it is submitted it will become valid and your notice period will start to run. If after the disciplinary you are dismissed for gross misconduct then your employment terminates immediately and you will not be paid for the remainder of your notice period. If not dismissed then you will continue with the notice period and be paid as normal until it ends

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