Restraint of Trade - Advice sought.

[fastfences]

Hello all,

Like many starting a business I have been maintaining a job as an employee whilst I 'get off the ground'.

I am working full time night shift in a factory. I have never kept it a secret that I work during the day, and have told people as well as driven my sign written van to work. The employer seems a bit 'jacked off' and has pointed out a clause in my contract that I must work 'exclusively' for them and not be 'connected or employed elsewhere.' I am 'only' a machine operator.

Does their clause have any weight in law - is it a restraint of trade? Generally one acknowledges that what one does out of work is their own business. I have an excellent work record, and there is no impact on Health and Safety, though the company thinks otherwise. Also, there is no conflict of interest between my fencing business and the company product of credit cards, etc.

I guess their option may be to put me through the 'disciplinary procedure' but I guess in the end if I leave, I leave. My business is going well enough to sustain a reasonable income.

Any comments/advice appreciated. Cheers, Nigel

[Stephen]

Without knowing all the details, the following is only general but might give you some useful pointers.

The enforceability of such exclusivity clauses generally requires the
secondary role to affect the performance in the primary role.

By this, I mean that if your alternative business isn't affecting your main employment, your employer requiring you to cease your alternative business would likely be considered an unreasonable request of you.

If they took you through the disciplinary route, and ultimately dismissed you, an employment tribunal would likely take into account whether your alternative business affects your primary employment.

However, given that your employment is a night shift, and your business requires you to work during the day, it may well be thought that you should be fully rested when returning to your main employment.

As you are a machine operator, this may give weight to your employers concerns.

It's unlikely that the 'restraint of trade' you mention could be used as an argument in your favour.

Other factors, such as how long your employer has known about your alternative work and whether they have discussed it with you before would influence matters.

In the end, if you're not happy with your employment, and you're in a position to concentrate on your business, you may prefer that option in any case.

Such issues can become quite tricky and your employer would need to handle the matter carefully.

It may be best for all concerned to reach a compromise agreement, and leave you to spend your time doing what you enjoy most.

Good luck,
Steve

[MinuWeb]

"affecting your main employment" if a very broad term, your employer could claim that as you are working machinery at nights that also working a 2nd job is making you tired and could result in injury.

[bwglaw]

As an employment lawyer I would like to make a few points.

The 48-hour rule

Under the Working Time Regulations 1998 an employer has a duty to ensure that any of their workers are not exceeding 48-hours per week. If the employer fails to do so, they face criminal sanctions.

I am not sure if you have opted-out of the 48-hour per week rule by a written agreement and providing the employer with a minimum of 7 days notice but not exceeding 3 months notice.

Health and safety

There can be an impact on health and safety if the employer feels that your 'additional' work has an adverse effect on your full-time nightshift work. An employer has a duty of care for all worker's health and safety.
Restraint of Trade

Having said the above points the issue of restraint of trade becomes less of a issue unless you can reasonably show that the above points are not an issue with your current employment and will not become an issue.

Restraint of trade is primarily concerned with controlling workers who, on their own account, may be in competition with the employer. A restraint of trade is presumed void unless the employer can show it is reasonable.

On the whole, I do not think the employer, if well advised, will use the restraint of trade clause but may have a better standing using the 48-hour per week rule and health and safety especially when you will be operating machinery during night hours and may be exhausted from your day work.

The restraint of trade issues become more tighter on senior employees and manual workers and employers thus have less control what their workers do during their spare time.

[fastfences]

Thanks to Steve, VS & Hands on.

Your info. has reinforced my thoughts, especially the H & S angle. Whilst there has never been any question of compromising my ability to perform my night job, in fact to the contrary - I have been complimented upon finding flaws that had gone un-noticed - the H & S legislation is rather 'wide sweeping' in that if the employer believes I may present a 'risk' it is their obligation yo minimise such risk. It follows then that they may echo Arnold Swarzenegger's words: eliminate him.

I have 'opted out' of the 48 hour week, but I would contend, respectfully, that the 48 hours applies to one, or the main, employer only.

Steven's point of classifying the roles as 'primary' and secondary' is very clever. I am easily able to demonstrate that there has been no adverse impact upon the 'primary' role.

But Steve, you also close with the most apt advice: reach a compromise and get out of there! You're dead right, I know that, perhaps it's the fear of stepping into the deep water and losing my security blanket, despite having fencing booking for 6 weeks ahead. Why burn my energy fighting this when I can burn it to earn more and enhance and improve my own business? Why am I here asking you all these questions when I've just answered them myself?

Thanks all for your help!!

Cheers and kind regards, Nigel