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Original poster

Employment law

13 replies

spikeycat · 02/09/2003 13:32

Any ideas anyone. My BF just handed her notice in to go to a competitor. Her company have told her to leave with 1 hour to clear her desk (so quick response needed!).

THey have told her they will give her 1 month in leiu of notice paid, but that she can not take her company car.

She was willing to work her 3 months notice.

I was under the impression that if you have notice, whether you work it or not you should also be entitled to your contractual benefits?

They have told her the "smal print" on her contract says she can't go to a competitor and they are being generous giving her any notice.

Any ideas?

OP posts:
LIZS · 02/09/2003 13:50

IME I'd agree spikeycat, although not a legal expert I'm afraid. When the company I worked for made redundancies they were entitled to keep their benefits and pay for the full contracted notice period - otherwise I think they need to offer payment in lieu. Technically I think they were still employed for the notice period and had they started another job in the meantime it may have been stopped then. So if she is going to take up her new position immediately I think it may be different. If she is going to a competitor it is not unusual for them to ask her to go immediatley but keep her "employed" for the interim as damage limitation (more out of touch, less likely to take clients/suppliers with them etc) Does she have a union she could ask ?

Original poster
spikeycat · 02/09/2003 13:55

No, she doesn't. Shes askign me as I used to an hr manager (? - babies have made my brain soggy!)

I don't know though cos of this clause, but if they are paying her in leiu I think she should be entitled?

OP posts:
aloha · 02/09/2003 14:07

I think it's right that if they paid her notice they can prevent her working during this time, so a month's notice may be pretty good if she can start work immediately with her new company. It's usually worth being pragmatic if you have already decided to go and have a new job IMO. Has she had a chance to read her contract? IT sounds most unlikely to have legal force as surely any other company in her field could be called a competitor? But I'm not an expert by any means.

twiglett · 02/09/2003 14:11

message withdrawn

Tinker · 02/09/2003 14:13

I know when I worked for Littlewoods Pools in the marketing dept I was specifically told, on appointment, that I could not go to work for a rival pools firm until 6 months after leaving. However, no idea whether this was legally enforceable or not.

ThomCat · 02/09/2003 14:18

If she's going to a competitor they want her out asap so she doesn't have time to download any company documents, tell clients, be privvy to info they don't want competitor to know about etc etc - seen it happen in every company I've worked for.
Don't think they're being generous giving her notice at all, think that sounds like sour grapes but understand why they want her out asap My old director was escorted off the premises when she went elsewhere!

prufrock · 02/09/2003 14:22

It is only legally enforceable if they pay you for the time they expect you to not work for a competitor. (gardening leave)
If her contract states 3 months notice, they have to pay her for 3 months, whether or not she works for them. But whilst they are paying her they can isist she doesn't work for somebody else. So it depends whether the nex company will be OK about waiting - in which case she should insist on her right to a 3 month paid holiday!

Original poster
spikeycat · 02/09/2003 14:28

they all agreed she would give a months notice, then they said she had to leave right there and then and that she would not be allowed to keep the car. We are rg=ight, I checked with acas and she should be "allowed to continue enjoying the benifits of her emplyment" that she would have enjoyed had they allowed her to work her notice (eg car).

I just spoke to her and they have told her they will take her to court for breach of contract (yea, right - that balls) - anyway, they have got her all scared and they are making her sign something before she leaves, no doubt it will say they she waives her rights. I told her not to sign anything but there you go....

OP posts:
Boe · 02/09/2003 14:45

I went on gardening leave for 3 months - goodo - fully paid and just sitting around at home - that is what they are suppossed to do if they are worried about confidentiality - they usually make you stay at home and not work for your notice period which in my case was the 3 months.

Her benefits etc have to be paid until her notice period is up, effectively she is still working for that company and they cannot just decide to cut her notice period - make sure she does not sign anything!!

sis · 02/09/2003 15:47

Spikeycat, it really depends on the terms of the restraint of trade clause that they are referring to - firstly, is it valid? many such clausees are completely invalid (including those drawn up by lawyers) and also what the agreement is on notice. If she is being paid in lieu of the months notice that she is supposed to give then her employment has terminated and, financially, she should be put in the same position as she would have been in if she had been allowed to work out the notice. FWIW, I think it is a bit off that they negotiated down her notice and then said that she had to leave and would be paid in lieu.

I really think she should take the contract with all its small print to a reputable employment lawyer and get it checked out.HTH

JanZ · 02/09/2003 16:27

If her contract says that she has to give 3 months notice, presumably her employer also has to give 3 month's notice - so that's what they should be paying her for. They are then in a better position to enforce a "garden leave" period. As I understand it, "payment in lieu" of notice" should also include an allowance for benefits that are contracted with the job - therefore if they're not allowing her to keep the car, they have to "pay" her for the benefit they are not allowing her to have. (it might actually be reasonable for them not to allow it - for example, if she is no longer employed by them, she may not be covered by their insurance). I think (but am not so sure) that the same applies for pension benefits.

If she was prepared to work her notice, then presumably her "new" employer is happy to wait.

Likewise, if they're happy to take her in a month's time (presumably on a better salary!), then it's maybe in her interests to accept the month's pay in lieu of notice (with allowance for the car benefit of course!).

I'd also understood that most "thou shalt not leave to go to a competitor" clause are not legally enforceable - but that they can enforce the notice period, provided they pay you (hence "garden leave" ).

However, like sis says - she should really get a good employment lawyer to check her contract.

Original poster
spikeycat · 02/09/2003 16:33

This is what I have told her, but she is worried. I think they are happy for her to bugger off and to pay her but don't want her to have the car... Still, its up to her in the end, if she doesn't want to fight what can ya do?

OP posts:
sis · 02/09/2003 16:57

She could ask for compensation in lieu of loss of use of the car for the month....

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