Compete clause in contract dilemma

mojo2460

Hi, I started working as a cosmetic repair technician in the building trade last November (too late for Furlough) The company covers the southwest of England with 8 technicians.
At the beginning of the year there was a drop off in work and so the other technicians were part time work and part time furlough. I was put on Zero hours. I received a letter stating " Your contract will be amended to a zero hours contract from 1st Feb 2021" I signed the letter but not seen anything else. During the last 3 months it has been obvious that the other technicians have been getting all the work and they have been using me to just do anything left over, about 2-3 days per week. Also during this time the boss has been advertising for another 2 technician's on full time contracts. So basically he is confident enough to take on more staff   but it seems using my present status  for the dead hours. I should say now that I am about to be put back on full time contract next month.

Now my question! In my contract I have a non compete clause for 6 months. Because of how I have been treated I would now like to become self employed doing the same work. If I was taken to court over this how would it be looked at, the fact that he put me on zero hours while advertising for more staff on full time contracts? I am guessing if I left now while on zero hours it would be in my favor but what about when I am back on  full time contact. Would what has happened go against my employer?  Also I guess I should say the clause covers the whole southwest, I would only be covering a small part of it

Any help gratefully received

Alfrescodave

Might be worth contacting an employment solicitor regarding the compete clause.. The cost could be money well spent

oh_really

Apply for one of the advertised posts.

Are you an employee or a worker, did you agree to any changes?

I would be spitting feathers at this.

Marcon

oh_really said:

Apply for one of the advertised posts.

Are you an employee or a worker, did you agree to any changes?

I would be spitting feathers at this.

Not much point as OP has already said they will be back on a full time contract in just over a week (although they might think twice before doing so if they really do want to go self employed):

mojo2460 said:

 should say now that I am about to be put back on full time contract next month.

Now my question! In my contract I have a non compete clause for 6 months. Because of how I have been treated I would now like to become self employed doing the same work. 

It must be hugely tempting to throw your toys out of the pram and tell this delightful employer where to stick their job...but self employment in these uncertain times might be an unattractive option in practice if you can't get customers. 

The good news is that if you are currently on a zero hours contract, non-compete clauses were banned on such contracts in 2015. You'd need to check the wording of both your 'old' and your 'current' contracts to be quite sure - could be money well spent getting a lawyer to have a squint. Might be that you would need to wait until August 2021 for the original 6 months to be up (or something else - without seeing the precise wordings it's impossible to be certain).

JohnDorian

Non compete clauses are enforceable but need to be correctly worded. I had one come up in a contract recently and I did a bit of research and took some advice and turned the contract down as this area is a minefield.

However, the question you should be asking is - can a zero hour contract contain a non compete clause? I don’t believe it can.

Undervalued

JohnDorian said:

Non compete clauses are enforceable but need to be correctly worded. I had one come up in a contract recently and I did a bit of research and took some advice and turned the contract down as this area is a minefield.

However, the question you should be asking is - can a zero hour contract contain a non compete clause? I don’t believe it can.

Indeed.

My understanding is that it is not applicable to a zero hour contract which should help the OP no end!

However on your first more general point.....

Quite. Even if the advice suggest the clause would be unenforceable, perhaps because it is too extensive and restrictive, unless completely excessive the problem is that nobody can tell you for certain unless it ends up in court. Defending your position against a well resourced company can be extremely expensive and you are unlikely to recover all your costs even if you eventually win. Potential employers can be put off as they too may be sued for enticing you to break the contract.

Marcon

JohnDorian said:

However, the question you should be asking is - can a zero hour contract contain a non compete clause? I don’t believe it can.

It can't, as already noted:

Marcon said:

The good news is that if you are currently on a zero hours contract, non-compete clauses were banned on such contracts in 2015. 

mojo2460

Many thanks for the interesting comments. Please find attached the paperwork. Original contract and letter.

Would be so grateful to hear comments if you understand post employment restrictions.
Regards

getmore4less

https://www.legislation.gov.uk/ukpga/2015/26/part/11/crossheading/exclusivity-in-zero-hours-contracts/enacted
https://www.legislation.gov.uk/ukpga/1996/18/part/2A

Grumpy_chap

"No Compete" clauses can be hard to enforce as they risk becoming "restraint of trade" clauses.

Looking at the clip that the OP has provided, the no complete clause is focused to stop the OP simply "stealing" business directly.  For example, the OP is employed by Dave's Detailing and does domestic detailing for a local firm (Bobs' Builders) and deals with Pete.  The OP leaves Dave's Detailing but two weeks later phone's Pete and offers his services to Bob's Builders through a new employer (Eddie's Exacting Detailing).  Using that contact directly would be against the spirit of the "No Compete" clause.

If, however, all the work of the current employer (Dave's Detailing) is to local housebuilders (new build), then the OP is free to offer the same service to individual homeowners on refurb projects as that is a different market that the current employer does not pursue.