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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 50202
Experience:  Qualified Employment Solicitor
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Thankyou for your advice last week. We had an employee

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Thankyou for your advice last week. We had an employee guilty of gross misconduct, during the investigation period she handed in her notice which is good. She is now offering mobile beauty treatments within the close radius of our salon, but has actually mentioned our salon in one of these posts-we would like to take action as we believe that she is also trying to contact clients

Hello, my name is***** am a qualified lawyer and it is my pleasure to assist you with your question today.

Hi Sonya. Did she have a clause in her contract in relation clients and sourcing business after termination of employment?

Customer: replied 1 year ago.
Hi Ben, lovely thankyou. She is still technically employed with us as is in her notice period-it's been out choice not to have her working in the salon. She is actually promoting this new 'business' whilst still being paid and employed by us. I will attach that section of her contract

OK, thank you for your response and for the attachment. I will review the relevant information and laws and will get back to you at the earliest opportunity. There is no need to wait here as you will receive an email when I have responded. Also, please do not responded to this message as it will just push your questions to the back of the queue and you may experience unnecessary delays. Thank you.

Apologies for not getting back to you sooner, I experienced some temporary connection issues and could not get back on the site until now. All appears to be resolved now so I can continue dealing with your query.

Mentioning your salon in her posts is not really an issue. There is nothing wrong with saying she has decided not to continue working there and mention the name in the process. After all it is a factual statement so she cannot be penalised for that.

In terms of her potentially being in breach of the restrictions in the contract, first of all I must say that a 2-year restriction is very long from a legal perspective so it may not be enforceable. Usually 3-6 months is considered reasonable. As to the radius, 15 miles could be reasonable if it is in a small town or community and there are not many salons around. However, for example a 15 mile radius in London or a big city will be unreasonable as it will cover a very big area that would make the restriction unenforceable.

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

In the first instance you should con tact her and warn her of the restrictions she is contractually bound by and remind her not to do anything that would reach these. If she does not resolve this and continued to try and poach your clients then you could consider further action as outlined above.

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.

Customer: replied 1 year ago.
Hi Ben, at the moment she is still employed by us as we are paying her still through her notice period; if she is actively promoting her new business surely this is a breach? Also, we have had clients saying that they are cancelling their appointments as they know she no longer works for us and are going elsewhere-this information can only have come from her as this was right after the initial investigatory meeting. Surely we can pursue a claim back to at least re coup her wages we are paying her now she is doing mobile work whilst employed?

Hello happy to answer follow up questions, if you could please leave your rating for the initial response please many thanks

Ben Jones and other Employment Law Specialists are ready to help you

Thank you. Yes it may indeed be a case of misconduct if she is actively promoting her business whilst still employed by you. However, you cannot claim back any of her wages for this period I’m afraid. This is even if she worked somewhere else at the same time. She handed her notice in and you decided not to require her to work it. It is not illegal for her to work elsewhere in this time. If you do not want to pay her then you will have to dismiss her due to the issues that have surfaced.