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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 50158
Experience:  Qualified Employment Solicitor
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Jones My ex employer never provided me with any written

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My ex employer never provided me with any written terms of contract. After 5 years of employment with them, they recently made me redundant. During the 'redundancy consultancy' process the Director introduced a letter for me to sign, namely a 'full and final settlement' with a restrictive covenant written in, no contact with any clients for period of 12 months. I would only receive my 'fought for' commission IF I signed such. I stated at meeting that I believed it was possible to ask for a solicitor to check legality and content, at COMPANY expense, prior to me signing it. This was denied and letter withdrawn from my possession. As such, in view of the fact that no written terms of contract exist, and that I have refused to sign this final settlement, no restrictive covenants exist, and therefore they can't legally enforce? They have warned me that they will "vigorously pursue" me through High Court if I contact clients.
Of note, the final confirmation of redundancy letter states that I have my 5 year statutory redundancy pay (no problem) and that I also receive 4 weeks pay in lieu of notice. However, the redundancy date letter was 10/2 and they wrote that my final date of employment was 9/3. I queried this, and asked for confirmation that surely 'pay in lieu of notice' meant that my termination of employment was 10/2 and not 9/3. They denied this. Result is that I had to delay commencement with my new employer by 4 weeks.
Given that once again, in light of no written terms of contract, were they within their rights to offer PILON, and are they in breach of contract also? I feel that I lost 4 weeks salary and opportunity with new employer.
Look forward to some clear advice please. Thank you.
Hello, my name is***** am a qualified lawyer and it is my pleasure to assist you with your question today. Are you planning on contacting past clients?
Customer: replied 2 years ago.
Yes, that is my intention as in my mind they have no restrictive covenants in place (either at onset of employment, i.e. written terms of contract with specific covenant(s), and due to my refusal to sign the 'full and final settlement letter, with no-compete clause' which they presented to me on my final redundancy meeting.
Thank you. Did you receive the commission which they were trying to only ay you on the acceptance of this written agreement?
Customer: replied 2 years ago.
No. As I previously mentioned, I refused to sign the 'full and final settlement, which incorporated a restrictive covenant'. The commission, which they owe, but refuse to pay (as is the case with other ex employees who have left in last 2-3 months, is as a result of a change in pay structure which was forced upon us in October 2015 and in 'in dispute'. They have no intention of paying me, or any other ex employee the commision. The reason I refused to sign the covenant/letter, is that I asked for confirmation that I could have it checked by a Solicitor (at their cost) which I read I was entitled to ... but the Sales Director refused this request and grabbed the 'final settlement/covenant letter' from my hands and placed back in his briefcase (unsigned). I told him that I would rather walk away from the commission, than sign a letter which they had drafted, without me having the opportunity for it to be checked legally. I am of a mind to pursue my commission via other means anyway, i.e. small claims court.
The point I am making is that without the benefit of a written copy of terms of employment (which would contain any restrictive covenants, rights of employer to offer 'pay in lieu of notice' and 'gardening leave' etc, as none exist, then surely they will not be able to enforce something which is not written or agreed upon??? As a matter of fact, as I said, I am sure that they themselves are 'in breach of contract' given that they gave me 4 weeks pay in lieu of notice (when no explicit clause was in any contract), and exacerbated by the fact that I firmly believe that they gave me incorrect information when I asked for confirmation of my termination date (redundancy letter stated 10 Feb, but mentioned 4 weeks PILON with a final employment date of 9 March). Surely it is ONE or the OTHER???? No written contract exists, and they decided on 4 weeks pay in lieu.
Thank you. For the employer to rely on any post-termination restrictions such as preventing you from contacting their clients they must show that there was some sort of agreement between you and them covering that. The usual way would be to have a written clause in your contract of employment, which was not the case her. Alternatively it could have been agreed subsequently, such as by the introduction of a separate agreement. An offer was submitted by the employer here but it was rejected b you and as such that agreement would not have been legally binding so they cannot rely on it. They also cannot try and claim that you had given your implied acceptance to it by accepting the commission payments they had promised in return as they never paid them. Therefore the threats of pursuing this in the High Court are empty. The PILON issue, they did state that you were being terminated by being paid in lieu of notice. That would have ended the employment not necessarily on the date notice was given, but when the PILON was paid as that would have satisfied the termination terms. The fact there was no contract and no PILON clause does not mean they could not have terminated you that way but it means they must compensate you for all benefits you would have accrued had you been allowed t work through your notice period. Whilst you may feel you have lost out on 4 weeks’ pay, you could have started with them regardless – you would not have been prevented from doing so and just an instruction not to do so would not be sufficient – they must have actually taken steps to top that or formally stood in your way. You could have still ignored their request and gone ahead with the new job – they would have had to then find ways to prevent that, which they wold not have been able to do in the circumstances. I hope this has answered your query. I would be grateful if you could please take a second to leave a positive rating (3, 4 or 5 stars) as that is an important part of our process and recognises the time I have spent assisting you. 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
Hello, I see you have read my response to your query. If this has answered your question please take a second to leave a positive rating by selecting 3, 4 or 5 stars from the top of the page. I spend a lot of time and effort answering individual queries and I am not credited for my time until you leave your rating. If you still need further help please get back to me on here and I will assist as best as I can. Many thanks.
Ben Jones and other Employment Law Specialists are ready to help you
Customer: replied 2 years ago.
Apologies for the delay Ben. Your advise is much appreciated. Today was the first day with my new employer.
Many thanks and best of luck in the new job