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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 50160
Experience:  Qualified Employment Solicitor
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I look after a lady via a care company. I'm thinking of handing

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I look after a lady via a care company. I'm thinking of handing my notice in as I've had enough. The lady I look after is thinking of going on direct payments & employing me. It says nothing in my contract about not being able to work for her on direct payments having left the company it just mentions not soliciting staff who are still working for them. In my lady's contract it mentions not employing staff who still work for the company but nothing about her employing staff who have left.
So if we both left the company would she be able to employ me without any legal implications???
How long have you worked there ?
Customer: replied 2 years ago.
Zero hour contract was signed 11.05.15
Hello, my name is ***** ***** my colleague has asked me to assist with your query as it is more my area of law. Are you going to ensure that your notice has finished before working for her? Also are you able to attach the contract here please so I can take a look?
Customer: replied 2 years ago.
Hi Ben Sorry about that - I've had to come onto my computer to attach the file for you - hopefully it will work!!Yes my employment will have finished by the time I start working for her.
Customer: replied 2 years ago.
I haven't got my lady's contract with me but it says something with words to the effect that within 6 months or 12 months by association you will not solicit an employee.Which I understand that if she leaves the company he will not be able to approach any of the company's employees to work for her. It doesn't say anything about employing staff who have left the company.
So would you not fall foul of restriction 5 in your contract?
Customer: replied 2 years ago.
But if she gives notice to the care company & leaves then possibly no??I understood it that if I left the firm to go to another firm & she was still with the company then I would under no circumstances be able to say come to this company because they're better. So if she's left the company & so have I there's no legal complications or is it just not feasible. I did telephone ACAS & explained the situation & they said there would be no comeback for either parties. I decided to ask yourselves before anyone proceeded further.
It does state that you are restricted from soliciting a customer of the company, which is defined as any person that has been in the habit of buying goods or services from the company. Also this covers customers with which you have had personal dealings with in the past 12 months of your employment. This client would fit that bill. However, such restrictions are aimed at preventing the loss of business by you enticing away the company’s clients so if they had left on their own accord and then decided to work with you, that would not be you soliciting them away from the company. Solicitation generally means “directly or indirectly requesting, persuading or encouraging clients of the former employer to transfer their business to their new employer". To be valid, the covenant should be restricted to customers with whom the employee had contact during a specified period before leaving, which is covered here. Other relevant factors may include the employee's level of seniority in the business, the extent of their role in securing new business and the length of similar restrictions in the employment contracts of competitors. Overall the chances of them successfully pursuing you for a breach and enforcing the restriction are quite low. It would be a lot more trouble for them to go through court to do this rather than just let it go. 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
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 50160
Experience: Qualified Employment Solicitor
Ben Jones and 2 other Employment Law Specialists are ready to help you
Customer: replied 2 years ago.
Thank you Ben I most certainly will do - thank you for your help!!
Many thanks, ***** ***** best