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Original poster

Constructive Dismissal

20 replies

Emmie412 · 01/03/2015 09:33

I am due to return from maternity leave in mid-March but have opted to take annual leave until mid April. My employer has issued me a new contract (my existing one expires end of March) and the new contract is permanent. They have however made a substantial change in the contract and instead of having a clause of non soliciting clients for 6 months they are now effectively barring me from working in the same industry for 12 months after leaving my company. I have asked them to change/delete this clause as really struggle to see how I could be seen a 'critical' person (I work in admin). If they refuse to change the clause and insist I am indeed a critical person, what are my chances of claiming constructive dismissal based on the fact that my terms and conditions have changed substantially? I have no intention of working at Tesco for 12 months and will not sign such contract.

OP posts:

HermioneWeasley · 01/03/2015 09:35

Were you on a fixed term contract before?

What is the reference to tesco about?

Original poster

Emmie412 · 01/03/2015 09:36

Yes, I was on a fixed term contract before. Reference to Tesco is about it not being the same industry.

OP posts:

Koalafications · 01/03/2015 09:39

I'm confused. Why can't you work in the same industry but not solicit their clients?! if you work in admin why would you need to solicit their clients?!

Original poster

Emmie412 · 01/03/2015 09:46

That's the whole point - it is utterly unreasonable. As far as I can tell they want to stop anyone working for a newly set up competitor in any form. Now the thing is I do want to work for them but they do not know this...

OP posts:

tribpot · 01/03/2015 09:47

How could they stop you from working in the same industry? Most people, when they move jobs, move to a job within the same industry. So the clause is (a) stupid and (b) possibly illegal. Are you in a union?

I'm not sure the dismissal thing will get much traction, though - presumably they weren't obliged to offer you a contract at the end of your temporary one? Are they paying you maternity leave? (not directly related but to get a sense of what expectation there was you would be returning).

HermioneWeasley · 01/03/2015 09:54

My understanding of your situation is as follows, but a massive disclaimer - my knowledge of fixed term contracts and mat leave isn't brilliant, so someone else may have more specifics.

Offering someone a new contract with different contractual terms at the end of their FTC is not constructive dismissal. If you have been employed on FTCs for more than 2 years, then failure to renew your contract might be unfair dismissal. Not sure what it would be if they offered you terms you simply didn't want to sign up to.

The restrictive covenants you mention are extremely unlikely to be enforceable, particularly if you are genuinely in an admin role. To enforce them your employer would have to take out an injunction which is hugely expensive for them. The courts would have to weigh up your right to earn money against the employer's right to protect their business. If you are not in a key position or client facing then you can probably just sign the new contract safe in the knowledge that you can work wherever you want when you leave and there's almost nothing they can do about it.

Original poster

Emmie412 · 01/03/2015 09:55

They have paid for enhanced maternity leave so the expectation very much is that I'd return.

OP posts:

Nydj · 01/03/2015 09:56

If the clause restricting your employment/work opportunities post-employment with the current employer is unreasonable (e.g. Too wide by barring you from working in whole industry instead of those clients you had been in contact with in the last year of your employment with current employer) then the clause itself will be void and therefore not enforceable.

I would suggest that you take the wording to a CAB or law centre or specialist employment lawyer and get them to draft a letter for you to your employer to the effect that you are signing the new contract on the basis that the restraint of trade clause is void.

Koalafications · 01/03/2015 10:07

I have a clause in my contract that I can't solicit clients for 12 months but I can work in the same industry.

I'm struggling to see your problems, OP.

Surely you would have no need to solicit their clients and they haven't said you can't work in the same industry just that you can't solicit their clients.

What is your issue with the T&C's?!

Koalafications · 01/03/2015 10:09

Sorry, unless you mean that your current clause is that you can't solicit clients for 6 months but the permanent contract has changed the wording to mean that you can't work in the same industry for 12 months?

It isn't clear from your OP.

Original poster

Emmie412 · 01/03/2015 10:14

Apologies. Previous contract said I cannot solicit clients for 6 months. This is fine and reasonable. New contract bars me from working in the same industry for a period of 12 months after quitting so cannot go and work for a competitor.

OP posts:

Koalafications · 01/03/2015 10:27

Right, ok. Then I agree with you, that's completley unreasonable. I agree that you shouldn't sign the contract.

Have you challenged their reasoning behind this? I had issues with my employment contract and they removed the bits I wasn't willing to agree to. It turned out that they had just taken generic advice re the contract and weren't fussed about the bits I wasn't willing to sign.

Original poster

Emmie412 · 01/03/2015 11:12

I am challenging them on this as have no intention on signing something so unreasonable even if it wasn't valid - just want to avoid any hassle when I do move on.

I think it is all about the newly set up competitor that has recruited some of their best people. I am biting my tongue and resisting the urge to inform them that if they rewarded good performance with pay and bonuses they would have a chance of stopping this naturally...

OP posts:

Koalafications · 01/03/2015 11:16

Yes, I would resist that urge at the moment Emmie

I'm not sure about constructive dismissal. Would certainly be worth checking this with ACAS.

HermioneWeasley · 01/03/2015 12:35

Amazing they'd decided an unenforceable restrictive covenant is the way forward!

tribpot · 01/03/2015 13:41

How ridiculous. Sadly I suspect there will be some who are less well-informed than you, OP, who actually believe their employer can prevent them going to work for a competitor. What a nonsense.

I think if I were the competitor, I would be making sure it was known that 'any and all' legal fees related to contractual constraints would be paid for new employees - given it's completely unenforceable there wouldn't be any (bar poss the occasional stern letter from company solicitor telling current company solicitor to bog off) but it would send a strong message.

I like Nydj's wording - make it clear from the beginning that you are aware the clause is bollocks.

Lunastarfish · 01/03/2015 13:55

You can only pursue a CD claim if you have been continuously employed for 2 years (mat leave counts).

You need to see a solicitor/CaB etc. It just isn't possible for anyone on MN to advise you on your 'chances' based on the information provided. I'm an employment solicitor and I can't advise you(!). CD claims are very difficult to succeed wth in general and resigning with a view of pursuing a CD claim shouldn't be taken likely.

Restrictive covenants, on the face of it, are legal. RC are very role and industry specific. Just because you are 'only admin' it doesn't necessarily mean 12 months is not reasonable. The case law on RC is very inconsistent; if you work in a very niche industry 12 months could be deemed reasonable.

Lunastarfish · 01/03/2015 13:59

I just want to add, employers CAN have clauses preventing competition. They are incredibly common and I have had to advise a lot of employees who fell foul of it by working for competitor. As I said, the context of the role/industry is very important in relation to the validity of the clause.

Original poster

Emmie412 · 01/03/2015 17:58

Thank you all. I shall see what they say, I would not be surprised at all if they say it cannot be amended.

OP posts:

Original poster

Emmie412 · 09/03/2015 14:24

OP here.

As expected they refused to amend it, in any way. Having given it some careful thought, I have decided not to continue with them. If they are so adamant on the clause to start with, they are also very likely to follow up on it. Having to present such contract to any new employer would be extremely off-putting so in this instance I have decided it is not worth the hassle of limiting/risking my future work options.

With regards to constructive dismissal, I cannot claim it on the basis of my maternity as my contract actually doesn't finish until end of this month. What it comes to the 2 year limit, I miss this by one day. I kid you not.

So even though the situation appears very unfair, it is what it is and I will have to move on. On the positive side, it does give me some more time with the kids as financially going back to work on my current salary does not make a difference - childcare and travel costs being what they are.

OP posts:

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