The Employment Law specialists at Banner Jones are able to advise you on any issue that may arise as a result of restrictive covenants in a employment contract.
Restrictive covenants, also known as post-termination restrictions or non-compete clauses, are terms in employment contracts or other agreements which seek to restrict an individual’s ability to compete with their employer’s business once they have left that employment.
The Employment Law specialists at Banner Jones are able to advise you on any issue that may arise as a result of restrictive covenants in a employment contract, shareholder agreement, partnership agreement, settlement agreement, business/share sale agreement or consultancy agreement.
The law relating to restrictive covenants is complex and ever changing, whilst the consequences of breaching a valid restrictive covenant can be harsh and expensive, with employers having the ability to seek injunctions against former employees, as well as damages for any loss they incur as a result of any breach of an enforceable covenant. Having said that, in order to obtain an injunction or damages, an employer must show that they have a legitimate business interest to protect and that the restriction goes no further than necessary to give them that protection.
As a general rule, non-competition clauses that prevent an employee from competing with their former employer’s business are unenforceable because they are viewed as unlawful restraints of trade, whilst non-solicitation or non-dealing clauses are allowed as they are designed to go no further than reasonably necessary to protect the employer’s legitimate business interests. However, this varies from one sector and industry to another and one role to another. You should therefore seek expert legal advice about the wording of any restrictive covenant in light of the sector or industry you work in.
We can help you understand the implications of any restrictive covenants before signing up to them, but can also help you when you are looking to leave your employment to determine whether such restrictions are likely to be enforceable in light of the limitations set out in case law.
Can I be forced to attend work if a member of my household is a vulnerable person?
If you are living with a person who is pregnant, elderly, or suffering with a disability that means they are in a high risk group, your employer should consider adjustments, such as enabling you to work from home. If your employer still forces you to go to work, you may have a claim for constructive/unfair dismissal, particularly if your work environment does not have social distancing measures in place.
Can I be made redundant when on furlough leave?
Yes. You could be made redundant during or after furlough leave. However, employers are obliged to follow strict procedures when making employees redundant to ensure that you are treated fairly. They must still follow the same procedure if you are on furlough leave.
Can I request to be furloughed?
You can request to be placed on furlough leave, but the decision is ultimately your employer’s. If you have a condition that puts you at high risk, such as a particular disability, it would be reasonable for your employer to consider placing you on furlough leave, if this is what you have requested. Failure to act reasonably and fairly in such a scenario could mean you have a claim for discrimination.
Can I work for my employer whilst on furlough leave?
You must not undertake any work that generates revenue for your employer or provides services to them. You can however, undertake training.
Can my employer dismiss me if I do not want to return to the office?
This will depend on your personal circumstances and the nature of your job role. For example, you may have a claim for unfair dismissal and discrimination if you are dismissed whilst ‘shielding’ following government advice, and you are able to carry out your work from home.
Can my employer reduce my salary?
Unless your employer has specified in your employment contract that it can reduce your salary, then no. If your employer proposes to reduce your pay, they must obtain your agreement. If your employer has reduced your wages without your consent, you may have a claim for unlawful deduction of wages and / or constructive dismissal if you chose to resign .
Do we have to do anything else in our recruitment adverts?
You need to be able to justify if you are asking for certain levels of experience. Advertising for a bus driver who is safe and has had previous experience is one thing advertising for a bus driver with 10 years’ experience is another. The first option leaves your job advert open for all ages to apply. The second rules out individuals who may be in their early twenties.
Other points to consider when recruiting new employees:
- Ensure whoever is interviewing potential employee’s scores interviewees on their skills and competencies as opposed to their age.
- Although they are not discriminatory themselves consider removing any reference to age on your job application forms.
- Don’t ask a potential employee for a physical fitness test unless you require them.
Once you have selected an appropriate employee ensure managers and staff are trained to monitor and avoid any discriminatory behaviour. Also make sure it is clear within any policies you have that discrimination in any form is unacceptable. Ensure managers are fully trained in diversity issues and that they are able to deal with discriminatory issues that arise within the workplace.
Do we need to worry about these requirements if we employ people in their 50’s and 60’s?
Yes you need to be aware of these requirements if you employ anyone of any age. They affect every area of employment as well as the recruitment and selection process. The requirements not only make it unlawful to discriminate on the grounds of age but also harassment whether it be intentional or unintentional or to victimise an individual.
You need to worry not only about your own actions but also your fellow employees who must be discouraged from making offensive or unkind comments about age or anything in between.
As with other areas of discrimination if your employee can demonstrate that there has been a difference in treatment which is due to discrimination it is solely down to you the employer to show otherwise or for you to prove that you have done everything in your power to stop such discrimination. There are no limits to discrimination awards and often they include an aspect for suffering, failure to do so can be expensive.
How does age discrimination requirements effect the recruitment process?
When you are recruiting employees you need to ensure you are not discriminating for or against anyone due to their age. This means you cannot advertise specific age requirements in any of your job adverts unless you can justify them.
How much will I be paid on furlough leave?
This will depend on what you agree with your employer. Under the CJRS, HMRC will pay 80% of your wages (subject to a cap of £2,500). Provided your employer does not have a contractual right to reduce pay in your employment contract, if your employer intends to only pay you 80% of your wages, they would need your agreement to do so.
What are the conditions of age discrimination?
In 2011 legislation new legislation was introduced making it unlawful to treat anyone differently due to their age except if it could be justified or falls within one of the exemptions to the law. The retirement age of 65 has now been phased out meaning employers can now only forcibly retire workers if it can be justified.
What year did the requirements of age discrimination come into effect?
The Employment Equality (Age) Regulations came into effect in October 2006. The retirement age of 65 was phased out between April 2011 and October 2011.
Will I also receive my usual commission during furlough leave?
If your commission is contractual, then yes (subject to above). If not, your employer will not have to pay you commission you would usually earn.