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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 72578
Experience:  Qualified Employment Solicitor
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I have a contract with my employer and within that contract

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Hi, I have a contract with my employer and within that contract is a clause stating
JA: Have you discussed this with a manager or HR? Or with a lawyer?
Customer: "Conflict of interest
During your employment you will be expected to devote the whole of your working time and attention to Company business and to use your best endeavours to promote the general interests of the Company.
If required to do so you must provide details of any relationships with any Company customers or suppliers and comply with any reasonable instructions given to you by the Company on such relationships.
Except with the prior written approval of the Company the Employee shall not, whilst employed by the Company, be directly or indirectly engaged, concerned or interested in any other trade or business. This includes taking an additional job outside the Company’s employment; becoming a director of a company, whether trading or non-trading; acting as an administrator; or (except for near relatives) acting as an executor, attorney or trustee.
In addition to the above, the Employee shall not become involved or continue to be involved in any activity if being so engaged, concerned or interested has or might have a detrimental effect on the Employee's ability to perform this contract or if the trade or business is wholly or partly in competition with the Company.
A breach of the provisions set out above will result in disciplinary action and possible dismissal.
Any requests for engaging in other employment should be addressed to your line manager in the first instance. If granted, written approval will be signed by a Director of the Company."
JA: What is your employment status? Are you an employee, freelancer, consultant or contractor? Do you belong to a union?
Customer: employee no union
JA: Anything else you want the Lawyer to know before I connect you?
Customer: no

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.

What do you specifically want to know about this, please? Please note this is not always an instant service and I may not be able to reply immediately. However, rest assured that I am dealing with your question and will get back to you today. Thanks

Customer: replied 9 days ago.
That's ok. My colleague and I had been directors of an inactive business prior to signing our current employment contract with this employer. We have now decided that we wish to begin trading with that business and needed to inform our employer to obtain a reference so that we could seek authorisation from the Financial Conduct Authority. Our employer is now seeking to rely on this clause and threatening action against us, saying that we must take action to stop our endeavors. I'd like to know how enforceable the clause is, and whether they can sack us for this or take other disciplinary action?
Customer: replied 9 days ago.
That's ok. My colleague and I had been directors of an inactive business prior to signing our current employment contract with this employer. We have now decided that we wish to begin trading with that business and needed to inform our employer to obtain a reference so that we could seek authorisation from the Financial Conduct Authority. Our employer is now seeking to rely on this clause and threatening action against us, saying that we must take action to stop our endeavors. I want to know if they can.
Customer: replied 9 days ago.
That's ok. My colleague and I had been directors of an inactive business prior to signing our current employment contract with this employer. We have now decided that we wish to begin trading with that business and needed to inform our employer to obtain a reference so that we could seek authorisation from the Financial Conduct Authority. Our employer is now seeking to rely on this clause and threatening action against us, saying that we must take action to stop our endeavors.
Customer: replied 9 days ago.
My colleague and I had been directors of an inactive business prior to signing our current employment contract with this employer. We have now decided that we wish to begin trading with that business and needed to inform our employer to obtain a reference so that we could seek authorisation from the Financial Conduct Authority. Our employer is now seeking to rely on this clause and threatening action against us, saying that we must take action to stop our endeavors.
Customer: replied 9 days ago.
My colleague and I had been directors of an inactive business prior to signing our current employment contract with this employer. Our employer is now seeking to rely on this clause and threatening action against us, saying that we must take action to stop our endeavors.
Customer: replied 9 days ago.
sorry for the spam, it wasnt showing as having gone through :S

Many thanks for your patience, I am pleased to be able to continue assisting with your query now. How long have you worked there for?

Customer: replied 9 days ago.
i have been here for roughly 2 years now (i also worked here from 2016-2019 but left and then rejoined 4 months later)

Thank you. Do you know exactly when you re-joined them please?

Customer: replied 9 days ago.
it would have been June 2019 i rejoined

Thanks and your colleagues, do you know how long they have been there for?

Customer: replied 9 days ago.
Since September 2017 (3y 6m)

Thank you very much for clarifying. Your rights will be slightly different to your colleague’s due to your length of service.

The main issue in the circumstances is the fact that you have only been continuously employed at you place of work for less than 2 years. That means that your employment rights will, unfortunately, be somewhat limited. Most importantly, you will not have legal protection against unfair dismissal. This basically means that your employer can dismiss you for more or less any reason, and without following a fair procedure, as long as the decision is not based on a reason which makes a dismissal automatically unfair. They can proceed with a dismissal even if you had done nothing wrong and also without following any specific fair procedure or proving that any of the allegations are true.

As mentioned, there are some exceptions to this, in which case the 2-year rule does not apply. These include situations where the dismissal was wholly, or partly, due to:

- Discrimination due to a protected characteristic (i.e. because of gender, race, religion, age, disability, sexual orientation, etc.)

- Taking, or trying to take, leave for family reasons including pregnancy, maternity/paternity leave, parental leave, adoption leave or leave for dependants

However, if the dismissal had nothing to do with any of the above exceptions, you would not be able to challenge it due to not meeting the minimum service criteria for claiming in the Employment Tribunal. In that case your only protection would be if you were dismissed in breach of contract. That would usually happen if you were not paid any contractual notice period due to you, unless you were dismissed for gross misconduct. That is where you were guilty of something very serious which justifies immediate dismissal, without any notice pay.

So you are at risk of dismissal, which can happen very easily and legally if needed. As to your colleague, if the employer was to look at potential dismissal, they must be able to justify that this was fair in the circumstances. It will consider what the effect of such extra work would be on the employer – is it a conflict of interest in terms of competition, does it take up an unreasonable amount of time and affect the employee’s performance in their main job, etc. In general people should be able to pursue outside interests as long as it does not interfere with their main employment, in terms of effects on their business, competition, performance issues, etc

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.

Customer: replied 9 days ago.
thank you, ***** ***** incredibly helpful. For my colleague then, generally speaking, if the outside interest does not impact on his main employment, would it normally be permissible for such ventures to be pursued?

Generally yes, although nothing stops the employer from withholding their consent. It is then up to the employee to decide why3ether to take the risk and do it anyway, on that basis it has no impact on their employment or their employer’s business and if the employer was to take action, to challenge it for being unreasonable. I hope this clarifies things for you a little bit more.

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