Can they do this? is it legally enforceable?

[Cobra]

A question for any "legal type bods"
Long story short
The company I work for is in the process of being taken over
my job is safe though ( as safe as any in these sad times)
I have seen a draft contract and I stand to "take" a circa 10% pay cut and "holiday cut" down to the "legal minimum"
I am a realist and am concidering "going along with this due to the "times"

However I also have a stand by plan or two, as there are one or two "finer points"
that I most certainly don't agree with suffice to say its rather like being back at school

part of the new contract ( that I haven't signed yet ) states that
should I leave
1) I must not go withing 10 miles of the base
as the base is 50 odd miles away from my home and present work area
that is highly unlikely anyway
2) I must not start up my own business in the same line of work
3) I must not work for another company for a minimum of 12 months engaged in the same line of business
#1 is in-consequential
#2 might be a little tough to enforce as I have had my own company registered for about 4 years
( insurance certs & bank statements to prove and my now ex boss knew all about it)
#3 they are having a laugh aren't they?
any / all suggestions greatfully received
Cheers

 

[Gary]

i'm no legal bod so i wont even give you my best guess (i'm sure someone will)

But if i was you I would say its worth paying to get someone to check that out. If not then Citizens Advice should be able to help you

 

[lawrie29]

What line of work are you in? Some of these are fairly standard and pretty unenforceable anyway.

 

[lawrie29]

Ooooh, and argue the wage cut and holidays? are you in a union?

 

[Jo]

Yeah I think they are having a laugh! I have no clue about the legalities of it though, sorry Chris. But it does remind me of similar rules to those of Land Work Agencies around these parts before they changed the rules. I wasn't aloud to work for a company via the agency, and then decide to work for them direct. If we wanted to work direct for the company, we would have to leave the agency, and then wait another 13 months before we could work for the company direct.

 

[whiteflyer]

I don't know about the rest, but there is no way in hell they can enforce #1, They would need a court order barring you from going to any public area near to their base.

 

[dseered]

Ooooh, and argue the wage cut and holidays? are you in a union?

Umm, new company though, so in theory the old company no longer exists and Cobra does have a choice as to if he signs the new contract or not, oh yeah, argue it, not sure you would have any legal standing if you didn't like the outcome though !

 

[Cobra]

i'm no legal bod so i wont even give you my best guess (i'm sure someone will)

But if i was you I would say its worth paying to get someone to check that out. If not then Citizens Advice should be able to help you

Cheers Gary I was thinking along those lines but the last time I
contacted CAB on a more "serious" matter" they were about as much use as a fart in a thunderstorm
"sorry there is nothing we can do" was the bog standard answer to "everything I asked"

What line of work are you in? Some of these are fairly standard and pretty unenforceable anyway.

I am a Pest control manager / surveyor

Ooooh, and argue the wage cut and holidays? are you in a union?

Unfortunately no union I was working for a "small" " old fashioned" firm and wage agreements etc were made on the nod of the head and a hand shake

 

[Defiance]

Very hard to be certain without knowing what you do. However, sadly it does on face value all looks legal except for point 1) which is an ASBO and only the Courts can do that and point 2) which could be construed as anti-competive or a restraint of trade, particularly for an indefinite period.

 

[lawrie29]

Is it a large company that is doing the takeover? renta......stylee??

Can you not start up on your own, nicking the best clients before you sign anything and making even more money?

 

[barneyrubble]

Do the TUPE regulations apply in this case?? Not sure myself, but if they do then most of the above would be illegal.

Worth checking it out certainly.

 

[Yv]

In the words of our own [commercial and employment] solicitor only a few weeks ago - they can put in any terms they like in a contact of employment, but dont expect them to be able to enforce it if push comes to shove - judges generally lean on the side of the employee.

Get it checked out Chris by a legal eagle or CAB - they sound pretty much like unfair terms to me, pressuming all your comments about pest control aren't a cover for the fact you are actually a NASA employed rocket scientist [in referance to the second part of your post of course]

 

[Cobra]

Yeah I think they are having a laugh! I have no clue about the legalities of it though, sorry Chris. But it does remind me of similar rules to those of Land Work Agencies around these parts before they changed the rules. I wasn't aloud to work for a company via the agency, and then decide to work for them direct. If we wanted to work direct for the company, we would have to leave the agency, and then wait another 13 months before we could work for the company direct.

I did a couple of years agency work some years ago, and loads of guys left the agency on a "Friday"
and started working for the placement company on the following monday. I never heard of anyone getting sued or crapped on over that

I don't know about the rest, but there is no way in hell they can enforce #1, They would need a court order barring you from going to any public area near to their base.

Good point there is a fairly main road running almost passed it anyway

Umm, new company though, so in theory the old company no longer exists and Cobra does have a choice as to if he signs the new contract or not, oh yeah, argue it, not sure you would have any legal standing if you didn't like the outcome though !

interestingly the old company still exists, sort of, and will still trade under its name as a seperate entity,
BUT will be based in the same office as the, buying out company and my old boss will retire.........
Hang on a minute, isn't there a law against running two VAT registered companies
( with different names) from the same address? I am sure I read that somewhere?
Oh and I am resisting signing the new contract for "as long as possible"
Cheers so far guys

 

[dseered]

Lease a van, fleece the old contracts and contacts, go for it, I am sure you can make a living on your own, if it was you that was going and out and doing the work then you will know who to get hold of, rats don't understand the word recession

 

[lawrie29]

Be careful as I think you need to act fast.

I think if you accept the money from the co. in wages you also accept their contract??
(check this as not 100%)

I don't htink the VAT reg companies means anything. If it did, register one at the accountants and trade from the different address.

 

[Cobra]

Very hard to be certain without knowing what you do. However, sadly it does on face value all looks legal except for point 1) which is an ASBO and only the Courts can do that and point 2) which could be construed as anti-competive or a restraint of trade, particularly for an indefinite period.

As above
I thought the same as you in #2 cheers

Is it a large company that is doing the takeover? renta......stylee??

not as big as the big "R" but about 4 times the size that we were

Can you not start up on your own, nicking the best clients before you sign anything and making even more money?

thats plan B

Do the TUPE regulations apply in this case?? Not sure myself, but if they do then most of the above would be illegal.
Worth checking it out certainly.

I don't know but thanks for the idea

In the words of our own [commercial and employment] solicitor only a few weeks ago - they can put in any terms they like in a contact of employment, but dont expect them to be able to enforce it if push comes to shove - judges generally lean on the side of the employee.

Get it checked out Chris by a legal eagle or CAB - they sound pretty much like unfair terms to me, pressuming all your comments about pest control aren't a cover for the fact you are actually a NASA employed rocket scientist [in referance to the second part of your post of course]

Damn you got me Yvonne

The first paragraph is certainly encouraging from my point of veiw ( but not a lot of help to you as an employer)
as above with the CAB, Yvonne but perhaps they have got better over the years, it was quite awhile ago now

 

[Cobra]

Lease a van, fleece the old contracts and contacts, go for it, I am sure you can make a living on your own, if it was you that was going and out and doing the work then you will know who to get hold of, rats don't understand the word recession

I think this is exactly what they are trying to stop and could be quite a good barganing chip ( if I am very careful)
I have been dealing with a lot of big companies on a personal basis for about 10 years and call of lot of directors and upper managemnet by their first names

Be careful as I think you need to act fast.
I think if you accept the money from the co. in wages you also accept their contract??
(check this as not 100%)

Good point and one I will need to check thanks
though at the moment "take-over" is incomplete and my wage slipes and payment still come from the "old company"

I don't think the VAT reg companies means anything. If it did, register one at the accountants and trade from the different address.

Its not me its them

 

[lawrie29]

Meant to say they could reg one at the accountants, sorry

 

[Cobra]

Meant to say they could reg one at the accountants, sorry

Got ya' cheers

 

[awp]

I'vw been freelance (SELF EMPLOYED) for 37 years - you've just reminded me why!

 

[Cobra]

I'vw been freelance (SELF EMPLOYED) for 37 years - you've just reminded me why!

Good stuff
glad to have helped

 

[CT]

I'll eat my left gonad if any of that is enforceable.

Sounds like a real crock! Plan B is the way to go mate - when you're good and ready of course.

 

[iansmart]

TUPE Guide Read and absorb, particularly page 14 onwards which deals with changes to terms and conditions as a result of the transfer.

 

[Galaxy66]

I hope you give those rats a run for their money whichever advice and direction you take Chris.

 

[Craft]

Anti competitive clauses are fairly standard, wouldn't worry too much about those, especially since you already have your own company.

#1 Is laughable, if you don't work there anymore why the hell can't you walk/drive right past the front door ? If it doesn't get you in to trouble I'd ask what the reasoning behind this is. there must be some sort of legal guideline on what is allowed/not allowed in a contract.

 

[russdaz]

I was thinking along the line of TUPE, as the contract i worked on a few months ago was taken over by another firm, under the TUPE they wouldnt be able to do any of above as they would have to honour your current terms and conditions, and match your current pension, for the life of the contract taken on.

But not sure weather TUPE applies to company take overs, all the take overs i have been involved in havent altered anything at all, except a change in livery once.

Something alot of poeple forget, if you have Home or car insurance policy 99% of them have some extra legal cover, give them a bell if you have they will advise you much better then the CAB.

 

[Anthony.Ralph]

As to the point about not going within 10 miles of their base, could that not mean setting up a business and/or trading within 10 miles? I have had contracts in the past where there was a 25 mile clause like this.

As far as the point about not trading/working in the same line of business for a period of 12 months is concerned, this again is a fairly standard clause which due to restraint of trade caveats is unenforceable.

Anthony.

 

[Forbiddenbiker]

I think this is exactly what they are trying to stop and could be quite a good barganing chip ( if I am very careful)
I have been dealing with a lot of big companies on a personal basis for about 10 years and call of lot of directors and upper managemnet by their first names

Sounds like a very good place to start a business Chris …. Why not ask them if they'd back you? ... have some figures ready.... then you'll know what to do.

Possibly…

What a bloody pain it all is... do they have a bit on that contract about those rules not applying if your sacked or loose your position again due to the recession :nono:. ...flippin outrageous that list.

 

[AndyB]

I think the question should be do you actually WANT to work for a company that expects you to sign that kind of a contract? Even if you took the job and decided to leave later you have committed to something that might be a pai in the rump.

It's a contract - if you sign it you are agreeing to the terms whether you think they are fair or not.

Are they oferring any kind of package if you don't want to stay on or is it a case of redundancy with no pay?

 

[gazzauk]

I have spoken to my solicitor over lunch and she informs me that you could be on dodgy ground once you accept the contract. When you accept the contract, you accept their terms.

At the same time, clearly their terms are totally unnaceptable and amount to a restriction of trade and freedom of movement.

 

[hepburn]

just wanted to add a couple of things:

1. New contract terms are unenforcable unless the company give you notice of them, a date they commence from (period of notice), and you carry on working past that date. At that point you are deemed to have accepted the new terms by continuing to work. As an aside, if those terms are unreasonable you could stop going to work and make a case for constructive dismissal.

2. Very few contract conditions restricting your ability to work would be enforced by a court. It is akin to preventing you from earning a living. Something to do with human rights I believe. So essentially, if your only skill is say plumbing, then no court will stop you carrying out that trade in your locality if it's the only way you can make a living.

As previously mentioned, go and get good advice from a law practitioner with knowledge of the current employment laws.

 

[Cobra]

I'll eat my left gonad if any of that is enforceable.
Sounds like a real crock! Plan B is the way to go mate - when you're good and ready of course.

can I bring a camera ?
Cheers CT

TUPE Guide Read and absorb, particularly page 14 onwards which deals with changes to terms and conditions as a result of the transfer.

Thanks Ian, thats appriciated I will have a good read through whenI get somer "quiet time"

I hope you give those rats a run for their money whichever advice and direction you take Chris.

Cheers Mal

Anti competitive clauses are fairly standard, wouldn't worry too much about those, 1) especially since you already have your own company.
#1 Is laughable, if you don't work there anymore why the hell can't you walk/drive right past the front door ? If it doesn't get you in to trouble I'd ask what the reasoning behind this is. 2) there must be some sort of legal guideline on what is allowed/not allowed in a contract.

1)That was my thinking
2) no idea on that but there should be certainly

 

[Cobra]

Something alot of poeple forget, if you have Home or car insurance policy 99% of them have some extra legal cover, give them a bell if you have they will advise you much better then the CAB.

Worth checking out thanks

As far as the point about not trading/working in the same line of business for a period of 12 months is concerned, this again is a fairly standard clause which due to restraint of trade caveats is unenforceable.
Anthony.

Thats the way I would have imagined it also thanks Anthony

1) Sounds like a very good place to start a business Chris …. Why not ask them if they'd back you? ... have some figures ready.... then you'll know what to do.
2) What a bloody pain it all is... do they have a bit on that contract about those rules not applying if your sacked or loose your position again due to the recession :nono:. ...flippin outrageous that list.

1) cheers Adam I have already started talking to "one or two" customers There is also a clause about not tell anyone about the take over as it might be detrimental to the new owners business, like I give a flying **** at the moment
So I have to be a little bit careful
2) there is no mention of "sacking or "redundancies " in the contract
( apart from gross misconduct which is fairly standard

 

[Cobra]

I think the question should be do you actually WANT to work for a company that expects you to sign that kind of a contract? Even if you took the job and decided to leave later you have committed to something that might be a pai in the rump.

It's a contract - if you sign it you are agreeing to the terms whether you think they are fair or not.

Are they oferring any kind of package if you don't want to stay on or is it a case of redundancy with no pay?

Thats a good question Andy and one that I have been concidering long and hard at the momnet the answer is no.
I have no intention of signing anything until I have had it checked out anyway
I think that if I do sign then I would have made up my mind to stay for "sometime"
If I quit the obviously that will be before I sign
I have had a brief meet & greet with the new boss when I asked specific questions I was told that could wait until he returned from holiday ( thats any day now) when a more "formal" meeting will take place
As far as I am aware there is no "redundancy package" in place but I intend to discuss this at our "formal" meeting but as it stands it looks like I am either "in or out"

I have spoken to my solicitor over lunch and she informs me that you could be on dodgy ground once you accept the contract. When you accept the contract, you accept their terms.

At the same time, clearly their terms are totally unnaceptable and amount to a restriction of trade and freedom of movement.

Thanks Gazz I appriciate you taking the time to do that
As above I really have no intetion of signing anything unless I intend to stay for "a while"

 

[Cobra]

just wanted to add a couple of things:

1. New contract terms are unenforcable unless the company give you notice of them, a date they commence from (period of notice), and you carry on working past that date. At that point you are deemed to have accepted the new terms by continuing to work. As an aside, if those terms are unreasonable you could stop going to work and make a case for constructive dismissal.

2. Very few contract conditions restricting your ability to work would be enforced by a court. It is akin to preventing you from earning a living. Something to do with human rights I believe. So essentially, if your only skill is say plumbing, then no court will stop you carrying out that trade in your locality if it's the only way you can make a living.

As previously mentioned, go and get good advice from a law practitioner with knowledge of the current employment laws.

Thanks Hepburn thats all interesting sound advive I didn't know about the "commencing date" or constructive dismissal parts either

 

[maddog.mark]

Many solicitors will offer a free half hour advice slot so I would see if any local to you offer this service. That's the best advice I can give you as anything else would be best guess and this is far to important for that.

Even if you can't get free advice it's probably worth paying for some just for piece of mind.

 

[Cobra]

Many solicitors will offer a free half hour advice slot so I would see if any local to you offer this service. That's the best advice I can give you as anything else would be best guess and this is far to important for that.

Even if you can't get free advice it's probably worth paying for some just for piece of mind.

Cheers Mark I will see what the second meeting brings.
I have no problem with paying for legal advice once I have the final contract in my hand and certainly before I sign it!

 

[Steep]

Those are pretty standard terms in any contract I think, certainly mine has similar terms in it. Practically speaking it wouldn't be cost effective for them to chase you for going to a similar job elsewhere and in my experience it doesn't happen. Starting your own business in the same line might be more problematic if you went about stealing their customers using your inside knowledge but the thing to consider here is, are you ready to do something like that now? if so, don't sign just go do it, if not then what is the harm in signing?

 

[markta]

I'vw been freelance (SELF EMPLOYED) for 37 years - you've just reminded me why!

I'm heading the same way for sure.

My last employer tried to clone me to someone they wanted me to be. I wasn't having any of it, especially as it was delving into my private life. What's it called? Work/life balance IIRC...

I'm currently working on going the same way and being my own boss, but am taking my time planning, researching and making sure all bases covered etc.

 

[oakwright]

Chris

Firstly you should however be aware that even if you do not sign the new contract, by continuing to work for the company you will, in law, be deemed to have accepted the terms of the contract.

Having said that points 2 & 3 are fairly standard in contracts of employment. Whilst iI am not a lawyer, I am a director of a company that employs 60 people and deal with employment law on a regular basis. We have similar caluses in our own contract although I know it is unenforcable in law. Point one is ludicrous.

I hope that puts your mind at rest.