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Hello, my name is***** am a qualified lawyer and it is my pleasure to assist you with your question today. So to clarify the only thing that has changed was for him to become an employee rather than be self employed?
When did the change in status occur?
How long was the restriction for?
Thank you. That could be difficult to pursue because technically his self employment would have terminated and with it – the contract under which he was employed. So in effect he would have been employed under a contract for service (let’s called it contract A), which would have terminated when his self employment ended last summer. He would have then become employed under a contract of service (a new contract, let’s call it contract B). You did not issue him with a new written contract to reflect this so whilst there would have been an implied contract in place, its terms would not be clearly defined. These would be basic terms based on things like his duties, pay, etc but specific restriction clauses would need to be clearly defined in a written contract, which in the circumstances he did not have because contract B was never defined in writing and the restrictions were only contract in contact B which has already terminated. The restrictions in contract A would have been valid but only for the period of 6 months after the termination of that contact, which clearly would have passed by now. As it is not illegal to set up a competing business he is not doing anything wrong now because he is no longer bound by the restrictions which expired 6 months termination of his self employment and currently he is not bound under any restrictions under the new contract if employment. That does not stop you from warning him and using scare tactics to try and make him adhere to the old restrictions, I can discuss that in more detail if needed.
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Hi sorry I was offline when you replied earlier. Regardless of whether there was a contract in place, he will have certain entitlements by law. These are a minimum of a week’s notice and any accrued holidays which remain outstanding at the time his employment is terminated. So you cannot avoid paying his outstanding holidays unfortunately. However, you can force him to take the as part of his notice period. To do this you would have to give him notice at least twice as long as the holiday to be taken, so if you want him to take 5 days holiday you must tell him that at least 10 days before it is due to be taken.
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they are just calendar days' notice. So if his notice runs out on 29 June and assuming he works Mon-Fri, you would have to try anf give him notice in batches for each small selection of days. So you could give him 6 days notice now to take 27-29 as holidays. You could give him 4 days notice today to take 23-24 as holiday and you could tell him today to take 20th off. You can tell him tomorrow to take 21st off and on Monday to take 22nd off. So in effect you have asked him to take 8 days off as holiday just not treated it as one period, rather given him single days or small selection off here and there and satisfied the notice periods. just make sure he received the notice because otherwise it may not be valid
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Many thanks. He is certainly allowed to take sick days during his notice period. Of course that has to be genuine so if you believe that it is not you can treat the matter as a disciplinary issue. This would require you to investigate the allegations and then hold a disciplinary to deal with it formally. You can then consider sanctions such as a warning or, in the event of gross misconduct – dismissal. It is up to you whether to go that far and take him through a formal disciplinary – the issue is that he may have left by the time the whole process finishes and also it would not allow you to withhold his holidays as they are a legal entitlement.