Articles/Publications
Maternity Questions
ARTICLE ORIGINALLY PUBLISHED AUGUST 2012
The questions submitted by readers on the “Ask the Expert” site are often quite eye opening. It is interesting what Employers and Employees think is reasonable!
By far the most frequent set of circumstances relate to either restrictive covenants or self employment in terms of what it is and what it isn’t. The following questions are representative:
QUESTION 1
After being on maternity leave for 10 months I was due to return to work in the salon in January. As I had no child care available I handed my notice in and left. I now do have childcare available and asked the salon owner if they were able to take me back, they were un-accommodating and said there was no work for me! I have since been offered a job in another salon in the same town, and my last contract I signed was 14 years ago when I was an apprentice. Is this contract still valid? As it states in cannot work within a 3 mile radius of my previous salon.
THE RESPONSE
When you resigned you were in your unpaid element of your maternity leave and therefore your employer wasn’t paying SMP. In these circumstances they could reasonably accept your resignation.
You don’t say how long after this incident child care became available but there is no legal obligation on the salon to reemploy you once you hand your notice in.
The restrictive covenant is to protect the employer’s legitimate business needs. However I seriously wonder how many clients you are likely to take with you to a new employer when you have been on maternity leave for 12 months. The employer could take legal action to stop you working or recover losses. However this is expensive, and based on what you said I am assuming you don’t have a portfolio of clients to take with you. The fact you offered them your services and they declined is hardly consistent with you being a valued asset or a threat to them.
More importantly it is highly likely that it would be found to be unreasonable to have a restrictive covenant in an apprentice contract as you were not guaranteed a job at the end of the training. It would appear your employer might have missed the boat in not giving you a new contract when you were given a stylists job.
QUESTION 2
I have just received the Contract for a job I am due to start in Monday and have found it has a 10 mile radius Clause, and although at the moment I have no intention of leaving I am also not stupid to cover my back in the possibility of what could happen beyond my control. What can I do?
THE RESPONSE
The law allows employers to include restrictive covenants in Contracts, but obviously it requires that the clauses to protect business are reasonable and not just to avoid competition. The bottom line is that a Court would determine the reasonableness of the clause and its enforceability.
This probably doesn’t help you or the salon. The clause must not unreasonably stop you practicing as a hairdresser. There are obviously factors to take into account, geography, for example, is the salon based inner city or in a rural community and it might mean you having to travel 20 miles to the nearest town. Similarly, however good the stylist, how many clients would reasonably travel 10 miles to follow them to a new location?
We know that elsewhere in the industry that restrictive covenants rarely stretch beyond 2 to 3 miles. So what should you do? There are 3 options a) sign the Contract on the basis it probably isn’t enforceable and tackle the issue of you ever left, b) sign the contract but flag up your objection to this paragraph or c) return the Contract and ask for the radius clause to be reduced and reissued.
QUESTION 3
In January I moved to the salon and brought 95% of my clients with me. I will be leaving shortly and want to put an advert in the local paper (not naming the salon) (needs mpre info here advert for what – which salon??). I am working in an employed status but have never been given a Contract. Is this ok?
THE RESPONSE
You do not have a Contract of Employment so there are no express term in the contract stopping you from working where you wish. There is obviously no restrictive covenant either and therefore the employer has left themselves very vulnerable.
There was a key tribunal case earlier in the year about this subject. The decision was that former employees shouldn’t target specific clients directly, but an open advert in the press indicating their whereabouts and not mentioning their former employer by name was reasonable. I can see no reason therefore not to advertise. I think it’s always a good idea to tell them in advance what you plan to do but they haven’t helped themselves by not giving you a contract which was a legal requirement within 8 weeks of you starting.
QUESTION 4
I have recently gone from being employed to self-employed (renting a chair) in the same salon for the same employer. I have worked in the salon for about 8 years so have quite a large client base, when I first started working at the salon there was a different owner to what there is now. I have never signed a contract or a rent a chair agreement.
I am aware when you are employed you are not allowed to take your clients when you leave the salon, but as I am now self employed where do I stand?
THE RESPONSE
Clearly the salon owner has missed the opportunity to clarify the position to their advantage by having a written agreement for your Self employment. They might have added a clause that the clients introduced to you by the salon were “the salons”. I have serious reservations if this would have actually held up if challenged.
However, in the absence of any agreement you should consider yourself as an independent business. In theory you are renting the chair and are in competition with the Salon. Therefore the clients are the clients of your business ie yours.
The fact you are renting without any form of written agreement makes it very difficult for the salon owner to take any action as effectively there aren’t any rules! I cannot see that the restrictive covenant is now enforceable.
I often advise my clients that the contract actually benefits both parties. It covers the duration of the agreement, and clarifies all the necessary issues eg prices, products, notice etc. I always recommend that individuals are open and up front about their plans. You don’t have a contract but you can still behave reasonably and give the salon owner notice of your intention to leave.
David Wright Personnel
Phone - 01302 355 372
Mobile - 07930 358 067
