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Ben Jones
Ben Jones, UK Lawyer
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I have a signed contract with an employee dated 1st July

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I have a signed contract with an employee dated 1st July 2014 lasting 2 years, although the duties haven't changed, the way in which I pay the employee has. The employee was sending invoices in and was self employed, I then decided to pay him as a PAYE but didn't change the contract to reflect this, what can I do legally if he set up a rival business, offering the same or similar business when the contract we signed forbid him to do it?

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?

Customer: replied 1 year ago.
Hi Ben, that's right he became an employee rather than being self employed. His role didn't change just that he was an employee. Where do I stand?

When did the change in status occur?

Customer: replied 1 year ago.
Last summer

How long was the restriction for?

Customer: replied 1 year ago.
6 months

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.

I'm sorry if this is not necessarily the answer you were hoping for, however I do have a duty to be honest and explain the law as it actually stands. This does mean delivering bad news from time to time. I hope you understand and would be happy to provide any further clarification if needed. If you are still satisfied with the level of service you have received I would be grateful if you could please take a second to leave a positive rating by selecting 3, 4 or 5 starts at the top of the page. Thank you

Customer: replied 1 year ago.
Ben, that has cleared everything up thanks, ***** ***** does he have now? I have issued him with a 2 weeks notice which is up on the 29th June. He is claiming holiday pay, of which he has 9 days remaining. He is still in my company at present, can I remove him without penalty or do I have to pay this remaining holiday?
Customer: replied 1 year ago.
I just need to know what I can or can't do as I stand here now, if there technically isn't a contract in place can I just tell him to go now? Sorry for being blunt!
Customer: replied 1 year ago.
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Customer: replied 1 year ago.
Hi Ben, can you answer the above questions please?

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.

If your original question has been answered I would be grateful if you could please quickly rate my answer by selecting 3, 4 or 5 starts at the top of the page - it only takes a second to do and is an important part of our process. I can still answer follow up questions afterwards if needed. Thank you

Customer: replied 1 year ago.
Hi Ben, sorry, are these working days notice or days of the wk including weekends? For example if his notice runs out on the 29th June, how many days can I force him to take as holiday?

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

Customer: replied 1 year ago.
Ok, thanks, ***** ***** taken sick days since his notice started is he legally allowed to do this, the evidence he has given me looks as though it has been fabricated! What advice would you give for this and where do I stand?

I would be happy to continue answering follow up questions, would be grateful if you could please leave your rating for the initial response thank you very much

Ben Jones and 2 other Law Specialists are ready to help you
Customer: replied 1 year ago.
Thanks Ben, left rating, cheers! Can you let me know from the previous question? Cheers

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.