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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 70814
Experience:  Qualified Employment Solicitor
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I am wanting to leave my current employment to start a new

Customer Question

Hello, I am wanting to leave my current employment to start a new business. But my employer feels like he should own some of the rights to the new business because I came up with the concept while working for him. Where do I stand? Thank you
JA: Have you discussed this with a manager or HR? Or with a lawyer?
Customer: I've discussed this with him - my actual employer
JA: What is your employment status? Are you an employee, freelancer, consultant or contractor? Do you belong to a union?
Customer: No union Employed
JA: Anything else you want the Lawyer to know before I connect you?
Customer: No
Submitted: 7 days ago.
Category: Employment Law
Expert:  Ben Jones replied 7 days ago.

Hello, I’m Ben. It’s my pleasure to assist you today. I may also ask for some preliminary information to help me determine the legal position.

Expert:  Ben Jones replied 7 days ago.

Is the concept related to your employer's business in anyway? and is there anything in your contract that gives your employer rights over any business related ideas?

Customer: replied 7 days ago.
Hello Ben, In answer to your questions.... 1) I am the GM and manage the whole business. One part of that business is dealing with vehicle accidents. I needed a solution to help manage this and there was nothing on the market so I came up with the solution myself. So it has resulted from a problem that I needed to solve.
2) My initial contract was 9 years ago. Last year I received a pay rise and was supposed to have a new contract. He produced a contract last week (he's obviously trying to cover himself) and has asked me to sign it and backdate it to last year.
Expert:  Ben Jones replied 7 days ago.

OK I understand and thank you for providing this information. Please do not worry and leave it with me for now; I will get back to you with my answer as soon as I can, which will be at some point today. The system will notify you when this happens. Please do not reply in the meantime as this may unnecessarily delay my response. Many thanks.

Expert:  Ben Jones replied 7 days ago.

Many thanks for your patience, I am pleased to be able to continue assisting with your query now. This concept of yours – is it just an idea, or is it official Intellectual Property, like a patent, copyrighted material, etc?

Customer: replied 7 days ago.
Just an idea (but I've put in a lot of business planning work in my own time and spent my own money on resources.) But I have put through a trademark application for the name (still in process.)
Expert:  Ben Jones replied 7 days ago.

Thank you very much for clarifying. There are various rules which apply to intellectual property rights in the workplace and the general position is that anything which has been created in the course of an employment by an employee will automatically belong to the employer. On the other hand, if they were a contractor, rather than an employee, they will retain the IP rights.

Please refer to this very good and detailed guide on these rights:

https://www.shoosmiths.co.uk/insights/articles/who-owns-what-when-it-comes-to-intellectual-property-12423

For the above to apply, the maters under dispute must actually be subject to IP rights in the first place. See the start of the article for a definition of what can be covered:

Intellectual property (IP) refers to the collection of rights which protect creations of the mind, for example inventions, literary and artistic works, designs, names, music and images. They are broadly divided into the following categories: patents for inventions, trade marks for names, registered and unregistered design rights for industrial designs; and copyright which covers artistic and literary works (including software) films, music, and ancillary rights including performance and rental rights.

An idea, will not on its own be subject to IP protection. Things associated to it, such as designs, images, a patent, etc may be protected, but the idea itself will not, as it is not protected under IP laws.

So all the employer can try and do is claim IP rights on things which are subject to IP protection and which you created during the course of your employment with them. Anything else will not be subject to this and they will unlikely be able to lay their hands on.

Hopefully, I have answered your query in a way that is simple and easy to understand. If anything remains unclear, I will be more than happy to clarify it for you. In the meantime, thank you once again for using our services.

Expert:  Ben Jones replied 7 days ago.

I hope that your query has been answered to your satisfaction. I just wanted to take this opportunity to remind you that if you needed any further clarification with this query, you should not hesitate to contact me and I will be happy to help. For now, thank you for using our services.

Customer: replied 7 days ago.
Thank you Ben. I will digest this and may come back for further clarification. Could you let me know if I have to legally sign my new employment contract (if so how long can hold off on doing so) and allow him to back date it to last year?
Expert:  Ben Jones replied 6 days ago.

Hello, thank you for your further queries, I will be happy to answer these. Is there anything in the new contract you are not happy to agree to?

Customer: replied 6 days ago.
a few things. A non compete, 1 month notice termination of employment from his side....
Expert:  Ben Jones replied 6 days ago.

Thank you. You can stall it as long as needed but after a while, usually months rather than weeks, you would be deemed to have accepted it anyway (called implied acceptance). It can potentially be backdated but only if it was agreed that it would start then.

Customer: replied 6 days ago.
Thank you that really helps
Expert:  Ben Jones replied 6 days ago.

You are most welcome. If you have any further questions about this then please do not hesitate to get back to me and I will be glad to help. All the best