Employment contract law. Hairdressing. not allowed to work within 2 miles of....

[Divvy]

This is for advice for my eldest daughter.

2 things really.

Maternity leave - do you have to go back to work after its ended, same employer. Or if offered another "better paid" job, can she take that instead?

daughter is a hairdresser, and just before starting her maternity leave, her employer got her to sign another new contract. This is because she had just became qualified so apprenticeship contract ended.

In this new contract, there is a clause. She is not allowed to work within a 2 mile radius of old salon, for I think its 6 months after leaving current employer.

How legally binding is this clause, once you have left, and ended the contract?

It wipes out all of our town centre, from daughter employment range also.

thanks

It's legally binding. I had one similar when I joined a law firm a few years ago. It's to stop her pinching their customers. They can sue. She could try having a chat with them and assuring them in some way that she will not take on existing customers.

You don't have to go back to the same employer after maternity leave.

mat leave - no you don't have to go back, but if given enhanced mat pay (above the SMP) then the employer may require you to pay it back.

contract - restrictive covanants are enforcable, but the more restrictive they get the less enforcable (the previous employer is not allowed to stop you earning a living etc).

The 2 mile radius thing is quite common. It is often found in contracts of people who have clients I think - some people had it in the accountancy practice I worked for. It is to stop you poaching clients from your old employer and taking them to your new employer.

Whether it is enforceable I don't know. I suspect nobody would bother suing unless you tried to wiped out their entire client base though.

Oh stop press ....DH tells me that other employers take them seriously but they have to be reasonable i.e. not more than 5 miles and for not more than about a year to be enforceable. Apparently we both had one when we worked for the same business.

it is legally binding but the reality is they are protecting themselves against 'loss'. They would lose if her old customers saw her and moved salons - in that case she should expect to be asked for compensation re the contract.

However - if in reality she doesn't steal anyone would they be bothered? probably not. Would they sue her? well what for if there has been no loss....

I think it needs her to be very careful if she wants to do this - or alternatively work 5 miles away for six months and problem solved!

Well as she has been on maternity leave for nearly 6 months now, she doesnt have any clients at salon right now, and has not been doing any clients from salon, only her own friends, and friends of friends type thing.

She hasnt been on enhanced mat pay either as nice employer messed up her wages jsut before start of maternity leave. By only putting her onto min wage 6 weeks before start of mat leave instead of the required 8 weeks. So has been on £98 a week since on mat leave!

ok, thanks all

Re the maternity leave, no she doesn't have to go back. If she has had any maternity pay in excess of what is required by statute, she may need to pay that back but would have a written agreement that sets that out.

Re the restriction, employers put these in where they believe that they have a legitimate interest that is protected by including this sort of clause. It is for the employer to show that their business would suffer if your daughter went to work somewhere within a 2 mile radius. It sounds as though she is still fairly junior (and she's been off work for months), so I guess they might be hard pressed to meet this test. That is a very quick summary - this area of law is very complicated so it is hard to give a yes/no answer.

I think if I was her and I really wanted to go for the other job I would. In order to stop her, her employer would have to get an injunction, and there would be legal fees involved. She might want to take a punt that they will never try to enforce the clause.

Thank you