Northampton Solicitors

EMPLOYMENT SOLICITOR NORTHAMPTON

What is the difference between non-competition and  non-solicitation clauses ?

A non-competition clause prevents an employee from competing with the employer after the employment is terminated. This means that when the employee’s employment comes to an end, he or she cannot take a job at a business which is in direct competition with the Employer.

A non-solicitation clause prevents an employee from encouraging colleagues or contractors to leave the employer and join with the leaving employee in a new venture or that employee’s new employers.

Both a non-competition and non-solicitation clause are forms of employment restrictive covenant. There have been many court disputes as to whether such clauses are enforceable, and the position is that each clause is considered by the Tribunal or court on it’s own merits, but the written contract is not conclusive and can be interfered with and/or overturned by the Tribunal or court.

Criteria which are applied include :-

• whether the clause is broader than necessary to protect the Employer;
• whether the clause would cause undue hardship on the Employee (e.g. it would make it difficult for the Employee to find new employment); or
• whether the clause is unreasonable in relation to time or geographic restrictions.

Can an employer change the employment statement?

The employer must consult with the employee for one month before making any changes.

What are the qualifying conditions for claiming Unfair Dismissal ?

In order to make a claim for unfair dismissal, certain technical criteria must be satisfied, which are :-

• You must be an employee and work either full-time or part-time
• You must have at least 1 year’s continuous employment.
• You must be under 65 years old or if your employer allows staff to work beyond 65 the normal retirement age for your job at the date of dismissal.
• You must not be in an excluded category, e.g. the armed forces or police

Are there any exceptions to the 1 year employment rule for claiming Unfair Dismissal?

You should normally have one year’s continuous employment, except:

• If the dismissal was connected with pregnancy and maternity rights.
• If you are a retail worker or work in the betting industry and were dismissed for objecting to working on Sundays.
• If you were dismissed for asserting your employment law rights.
• If you were dismissed for observing Health & Safety rules.
• If you were dismissed for being an elected representative for collective redundancy or transfer consultation purposes.
• If you were dismissed for “whistle-blowing”.
• If you are dismissed just before the 1 year period, i.e. 1 week before your statutory notice period maybe added to give you 1 years service.
• If your dismissal is connected to Trade Union activities, carried out at an appropriate time.
• If you are dismissed for belonging to a Trade Union.
• If you are dismissed for refusing to join a Trade Union.

What is the time limit for bringing an Unfair Dismissal Claim in the Employment tribunal?

There is a strict rule that an Unfair Dismissal claim must be commenced within 3 months of dismissal, whether the dismissal is by the employer or where the employee resigns and claims constructive dismissal. If a claim is not commenced within this time the employee will lose the right to claim.

If the employee has a grievance with the employer it is a requirement to raise a grievance first with the employer before making a claim to a tribunal.

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