Employment contract query.

[BB-Q]

My son is an apprentice hair stylist and has been informed by his employer that there will be no job for him after he qualifies as she can't afford him.

Two months ago she produced a contract and got him to sign it. Like a fool he did so without discussing it or even reading it!

Because he's been told that he will be losing his job he has decided to do a barber's course. He has been offered a job in a place that does 75% men's barbering and 25% women's styling. The business in question is moving to within a few doors of his current employer (she doesn't do barbering).

The point that worries me is that in his contract it states that

[i]Termination of Employment:
covenenat:
2a. On termination of employment former employee is restricted from working in the trade of hairdressing, to include mobile, within a three mile radius of (his current employer). For a period of not less than one year, from the date of leaving.[/i]

It also states at the start of the contract that a permanent position cannot be guaranteed at the conclusion of the apprenticeship.

Now as far as I can see, because he is being forced to leave his job through no fault of his own, surely this contract cannot be valid? Can you make a trainee redundant as soon as they qualify and then legally dictate where they can work? He has no clients that he would take with him (the usual problem when an employee leaves) and is going to be working in what is predominately a barber shop rather than the hairdressers he works in now.


I'd greatly appreciate informed comment on this because she's a spiteful old bag and would probably go through with the threat of legal action.

And please don't say "get another job elsewhere". He doesn't drive and jobs aren't exactly easy to come by up here.

[BB-Q]

Thanks for your help. I felt it was unenforcable too, but thought I'd best get a second opinion on it.

I told him to explain the situation but to no avail. She's already made noises about "there being a problem" with him taking this job.

[JonRB]

BB-Q said:

She's already made noises about "there being a problem" with him taking this job.

Well I hope she has a better grasp of hairdressing than employment law then. Because not only is Restraint of Trade unenforceable, but she could be in hot water if she tries to give a bad reference too. She really has no legal ability to stop him from taking this job.

There's no point about talking about Employment Tribunals though, as he as been there for only a year.

[BB-Q]

He's just about to complete his 2nd year, actually. Not sure employment tribunals would happen anyway. Is he entitled to any redundancy? I'd have thought not as he will be in training until he leaves (basically she's getting rid of him once she has to pay him a full wage), but I don't know unless I ask.

I've advised him this morning to pretend he's looking for something within the confines of his contract, because I genuinely believe that if he crossed her she'd just invent some gross misconduct and sack him- she's really not a nice person.

Then, on the day he hands in his notice he can tell her to shove it- in the politest possible and most employment law-friendly terms, of course!

[DonkeyKong]

JonRB said:

Because not only is Restraint of Trade unenforceable

Restraints of trade are perfectly enforceable. They are assumed valid by the courts.

They then follow a 3-step cascading process to check if this remains the case.

This one sounds unreasonable as between the parties, and therefore may be difficult to enforce, but that may not stop the current employer trying. If she does, I'd suggest your son goes straight to the CAB and asks them to help draft a letter to point out the fragility of her argument. What loss could she reasonably show? Trivia at best.

I wrote war & peace about this in my very first post on PH, but don't worry, I have since learnt:

1) Factual accuracy is irrelevant on this website. Best to start a reply with "I don't really know" or "not my area but", or just to make assertions based on hearsay or ignorance with such conviction you believe them yourself, especially in relation to matters of fact.

2) Any response more than 3 lines long is assumed not to be read. It's why you need to go through 3 sides of drivel in a car advert to find out it was Cat D or worse.

3) Smilies make the World a better place.

That post was in this thread: http://www.pistonheads.com/gassing/topic.asp?h=0&a...

[BB-Q]

Donkey Kong, I'll assume it's fact when someone in the legal profession answers. Any validity in your post got lost with that utter bs you spouted in it's second half.

I could see that the employemnt cntract might stand a chance of enforcement if he was leaving of his own free will to go to a competitor, but that is not the case at all.

I fail to see the legality of forcing someone to leave their job after two years of training because "I can't afford you" (which is her stated reason) and then attempting to restrict their subsequent employment- especially as he has no client base and is moving to what is predominantly a barber shop. He will not be doing blue rinses in there as he is at present!

EDIT: You state yourself to be a lawyer, but then ignore most of what I wrote to provide your own perspective on internet forums rather than actually help. Thanks.

Edited by BB-Q on Saturday 6th June 09:39

[DonkeyKong]

BB-Q said:

rather than actually help. Thanks.

I repeat:

DonkeyKong said:

This one sounds unreasonable as between the parties, and therefore may be difficult to enforce, but that may not stop the current employer trying. If she does, I'd suggest your son goes straight to the CAB and asks them to help draft a letter to point out the fragility of her argument. What loss could she reasonably show? Trivia at best.

Personally, I'd class that as help.

Given the current employer's case appears weak at best, as I said in the earlier post, if there is a later problem the Citizens Advice Bureau have plenty of specialists who could look at the contract your Son signed and either provide you with some opinion (as that's all they can do) or, draft a letter to respond with.

If you really wanted to you could spent time and money with any employment law Solicitor preparing something in advance.

But as you don't know if current employer will follow up her vague mutterings with action (and if she sought advice as to the strength of her case it is likely to be advised she does not bother- the cost would most likely outweigh any benefit), then is there really a gain of you acting in advance?

You are not in a definitive positon, but no Solicitor could put you in one either by words alone.

A Solicitor could give you opinion as to the specifics in what your Son signed and their enforcability, but they are not a Court, they do not "decide".

In the first instance a new contract could give you the absolute clarity you seek.

A watered down version of a new contract might be a Solicitor or the CAB writing to the current employer asking for some sort of "comforting" response that they would not take action. But the current employer would not be obliged to respond, nor could you force them in to such a position. And if they later took action despite having said they will not, where any sort of "comforting" letter may help any Court to decide, it's not likely to form a contract or anything that binds the current employer in any way. It achieves little then.

To be comprehensively assured of the position, your Son could enter in to a new contract with the current employer to override the one signed. That will likely cost money, and I do not believe to be merited with this position.

If you really are having sleepless nights then do pay a Solicitor to look the contract over and explain the position. Given the best the current employer could hope for is not some blanket, random sum of money as compensation but the loss they have experienced from your Son leaving, what might that equate to? If a few of the current employer's customers decided to go and use your Son's services in a new establishment (which the current employer would have to prove) then the profit on any work done over a reasonable period (most likely the one year period the restriction applies to) is the likely sum. What would that amount to? £100? £1000? And what would it cost the current employer to convince a court they are so entitled? £100? £2000 in legal costs? Even if your Son became liable for costs in addition to any compensation then only a percentage would be payable, proportional to his earnings. What might that be? £50 againt £100 costs? £1000 against £2000? You tell me. Any Solicitor advising the current employer is going to tell them straight that their actions may cost them even if the Court finds in their favour, and if a Court deems such action futile or vindictive they will find against them anyway. A Solicitor owes their client a duty of more than just blind obedience. The suggestion will undoubtedly be not to bother.

And this is before you've considered if the current employer could not afford to pay your Son a full-time then would she reasonably be entitled to any compensation?

There is a way to stop the current employer from taking any action. Pay them to enter in to a contract over riding the one signed. But if that's not a route you take then you will have to live, to one degree or another, with at least some uncertainty.

On the balance of probabilities (and that's as close to definitive as you'll get on this) given;

1) The late signing of the contract, and there may be an argument it was signed under duress,
2) The (probably) low possible compensation available, particularly in the light of any disproportionate cost to take action,
3) The fact the current employer is not willing to offer employment, indicating they do not deem any cost to do so as worth any potential gain,
4) The new employer is not a directly competing entity given the suggested split of work,
5) A court possibly construing any actions in the light of (1) and (3) as unmerited,

I would suggest you have very little to worry about. But as I repeat again, the absolute clarity you seek can only be given either by an arbiter, or a new contract between the parties overriding the one signed. Neither of which I would suggest are merited.

Edited to add second time, inclusion of point (4) above and to say the easiest way forward is most likely for your Son to take his contract to the CAB and ask for an opinion as to enforcability. Given the likely response, take that 3rd party opinion to the new employer, and ask if any alternative form of referencing can be provided. They don't even ask for a reference from the current employer.

Edited to add: Nothing contained herein is or should be construed as legal advice. No liability can or will be accepted for any cost or loss sustained as a result of acting or otherwise on information and opinion provided for free, on an internet forum.

Edited by DonkeyKong on Saturday 6th June 14:45

Edited by DonkeyKong on Saturday 6th June 15:11

[BigAlinEmbra]

If it's a fixed term contract, then has his employment been "terminated" at the end of this time?

[BB-Q]

DonkeyKong said:

Lots of useful stuff

Thank you for that much more direct and comprehensive opinion.

My other thought on the defence of my son's position is that his employer no longer requires his services. /this could mean that he's either no good at this job or that she feels she cannot make a profit from him. Since he has no clients then she cannot claim a loss from his leaving.

[RichBurley]

Almost certainly unenforcable.

[DonkeyKong]

BB-Q said:

My other thought on the defence of my son's position is that his employer no longer requires his services. /this could mean that he's either no good at this job or that she feels she cannot make a profit from him. Since he has no clients then she cannot claim a loss from his leaving.

Absolutely. The three part test a court would apply starts with:

1) Is [the Restraint of Trade as it stands, in the context of the position the parties find themselves in] necessary to protect the interests of one of the parties?

Usually, the answer is yes. If an employer has spent time/ money training someone, the law should rightly protect the investment a company has made, it would not be reasonable for firms to train people then they were able to leave & set up in competition- there would be no incentive to invest.

In this case it seems the employer is not interested or able to employ your Son, so does she have an interest to protect? Any claim may fail at this point, it's certainly what I'd expect any simple guidance you could get for free (in writing) from the CAB to indicate, and for any advisor to the current employer to confirm.

If an arbiter decided such an interest did exist, the second question is:

2) Is the Restraint of Trade [as it stands, in the context of the position the parties find themselves in] reasonable as between the parties?

Given the 4 points I raised (and I'm sure you can find more based on your more detailed understanding), any claim would almost certainly fail at this point.

I stress again, this is opinion. But I will say if I were advising the current employer I'd ensure I confirmed they were in a position to pay for my time. Which even the most determined (take that to mean angry/ bitter/ vindictive and generally legally illinformed- they are the most dangerous) clients come round to realising means their time is most likley not well spent.

[siscar]

DonkeyKong said:

1) Is [the Restraint of Trade as it stands, in the context of the position the parties find themselves in] necessary to protect the interests of one of the parties?

Usually, the answer is yes. If an employer has spent time/ money training someone, the law should rightly protect the investment a company has made, it would not be reasonable for firms to train people then they were able to leave & set up in competition- there would be no incentive to invest.

In this case it seems the employer is not interested or able to employ your Son, so does she have an interest to protect? Any claim may fail at this point, it's certainly what I'd expect any simple guidance you could get for free (in writing) from the CAB to indicate, and for any advisor to the current employer to confirm.

The other factor is that the new employer's customers are 75% men whilst the current employer's customers are 100% women. That has to impact on the judgment as to whether it is necessary.

[DonkeyKong]

siscar said:

The other factor is that the new employer's customers are 75% men whilst the current employer's customers are 100% women. That has to impact on the judgment as to whether it is necessary.

Hence point 4 in my second email.

It's shaky ground, but that doesn't mean the current employer won't act on it- she has a signed contract which at a very basic level (before you pore into the detailed analysis of the situation above) the OP's son may breach.

If one were acting for the current employer, that's a very good start.

[BB-Q]

He's taken the contract to college today. Will be interesting to see what his tutors have to say or whether they have any sway with his employer.

The college is the one that places the apprentice with the employer, so they may have an influence on them. We'll see.

[RichBurley]

BB-Q said:

He's taken the contract to college today. Will be interesting to see what his tutors have to say or whether they have any sway with his employer.

The college is the one that places the apprentice with the employer, so they may have an influence on them. We'll see.

Or, they will support the employer, as they are the ones who agreed to have an Apprentice in the first place, and companies like that are the kind that the College will want to support, whether they subsequently keep people on, or not.

[Firefoot]

I think DK has said it all really, but just to answer your other question, redundancy is only paid to employees that have completed two years service. If your son is leaving before the two year anniversary date, then there will be no redundancy payment.

[BB-Q]

Yeah- like I said, we'll see.

I'll post it up as soon as I know.

Much more importantly, I have the opportunity of spending a whole five hours in my Man Sanctuary today, which will consist of chassis and steering fabrication plus front crossmember modification and restoration. Woe betide any ft who interrupts me like last time- and the time before.