Early Reconcilliation advice

Mr_Benn

Im helping my youngest with an unfair dismissal case against her boss. She hasnt followed any procedures, but is starting to back track now. She has been there 2.5 years, so were not talking big compensation, but the main point she wants is to get a clause striked off about not working for a competitor etc. 

Our next step is to start Early Conciliation with ACAS.  I can get free advice via my House Insurance,  but wondered about getting a solicitor to handle it all ?  Or is that more necessary if we take it to the next step , a Tribunal ?

Thanks in advance.

TadleyBaggie

The last (only) time I employed an employment solicitor, the going rate was in excess of £200 per hour. Luckily this was a settlement agreement that the ex-employer was prepared to pay for advice. You could easily run up a several thousand pound bill if the case runs on.

MattMattMattUK

Mr_Benn said:

Im helping my youngest with an unfair dismissal case against her boss. She hasnt followed any procedures, but is starting to back track now. She has been there 2.5 years, so were not talking big compensation, but the main point she wants is to get a clause striked off about not working for a competitor etc. 

Our next step is to start Early Conciliation with ACAS.  I can get free advice via my House Insurance,  but wondered about getting a solicitor to handle it all ?  Or is that more necessary if we take it to the next step , a Tribunal ?

Thanks in advance.

I am guessing that as you are attempting to handle this on your daughter's behalf and that she had only been there 2.5 years she was probably fairly junior? In which case a blanket non-compete clause would almost certainly be unenforceable. 

Undervalued

Mr_Benn said:

Im helping my youngest with an unfair dismissal case against her boss. She hasnt followed any procedures, but is starting to back track now. She has been there 2.5 years, so were not talking big compensation, but the main point she wants is to get a clause striked off about not working for a competitor etc. 

Our next step is to start Early Conciliation with ACAS.  I can get free advice via my House Insurance,  but wondered about getting a solicitor to handle it all ?  Or is that more necessary if we take it to the next step , a Tribunal ?

Thanks in advance.

Statutory procedures were abolished quite a few years ago and replaced with guidelines.

Whilst an employer must still make a reasonable (layman's) attempt to conduct a fair process (and following the ACAS guidelines is a fairly safe way of doing so) other ways may also be legally fair. 

The days of collecting automatic penalties for minor breaches of procedure are gone.

YBR

In the case of the non-competition clause being a reasonable time (a matter of opinion) this may not be worth the pain/cost. There are things in the world of employment that are better chalked up to experience than fighting to the bitter end.

Mr_Benn

Sorry just to explain, we  want the clause taken out as she wants to stay in the profession, maybe even set up her own business, but not have this clause hanging over her.  Some of her current clients have already asked if she is going to continue  so she is keen to start ASAP..  Kids eh...

Devongardener

How long is the period of non competition?  I believe that a clause of more than 3 months is not enforceable.  I doubt it’s worth the former employer’s cost to persue it.    

Employment lawyers are very expensive.  ACAS will guide you.

Hoenir

Does the employment contract cover non solicitation of clients ?  

Mr_Benn

Merry Xmas guys, and thank you for the help. 

In the contract it says :  " Non-Solicitation and Non-Compete : for 12 months following the termination of the agreement ,may not solicit, accept, or or deal with, in competition with the Company, the custom or business of any Customer with whom you have had substantial personal contact or dealings on behalf of the Company during this Agreement.
You may not directly or indirectly compete with the business of the Company during the period of your employment and for a period of 12 months following termination of your employment. To this end, you may not set up a business within a 5-mile radius 8 of the Company’s registered address during this period without prior written consent from the Company’s owner. "

From what I have read the Government have agreed to set a maximum of 3-months non-compete, but they havent got round to make it law yet. 

As a separate note, her employer (there was only her and my daughter in the company) has now contacted her to say an appeal meeting has been arranged, where her boss will chair the meeting and her Mum will take minutes. No mention of apologising for not offering a chance to appeal (beep beep, company reversing !) . As we have informed her employer that she does not want to return, we will advise her we wont be attending, but as no compensation offer has been given we will be progressing it legally. (Acas).
Im going to see if I can get some legal advice this week, and either way then apply for to Acas for Early Reconciliation .

Undervalued

Mr_Benn said:

Merry Xmas guys, and thank you for the help. 

In the contract it says :  " Non-Solicitation and Non-Compete : for 12 months following the termination of the agreement ,may not solicit, accept, or or deal with, in competition with the Company, the custom or business of any Customer with whom you have had substantial personal contact or dealings on behalf of the Company during this Agreement.
You may not directly or indirectly compete with the business of the Company during the period of your employment and for a period of 12 months following termination of your employment. To this end, you may not set up a business within a 5-mile radius 8 of the Company’s registered address during this period without prior written consent from the Company’s owner. "

From what I have read the Government have agreed to set a maximum of 3-months non-compete, but they havent got round to make it law yet. 

As a separate note, her employer (there was only her and my daughter in the company) has now contacted her to say an appeal meeting has been arranged, where her boss will chair the meeting and her Mum will take minutes. No mention of apologising for not offering a chance to appeal (beep beep, company reversing !) . As we have informed her employer that she does not want to return, we will advise her we wont be attending, but as no compensation offer has been given we will be progressing it legally. (Acas).
Im going to see if I can get some legal advice this week, and either way then apply for to Acas for Early Reconciliation .

Be very careful. Take proper advice before proceeding along the lines you are proposing.

Generally it would be best to follow the appeal process. What you are planning could easily be interpreted as a resignation. The argument would be that the appeal may have been successful in which case she would still be employed.

The non compete clause may or may not be enforceable. Her starting point is not good in that she chose to accept this condition along with the job. If the employer is so minded your daughter could run up a significant legal bill arguing about it. If she is looking for another job they could easily warn / threaten the potential employer that they are enticing her to break a legal contract and potentially be sued. That may be largely a bluff but the effect is often to make the potential employer hire somebody else with less "baggage".

Mr_Benn

Thank you Undervalued. The main advice does seem to be take legal advice in one form or another, and Im conscious of making a silly mistake that will ruin our case.  You make a good point about how we ensure it doesnt get termed as a resignation. My gut feeling is the Employer have probably now done a bit of homework and may well offer the job back, knowing they have done this process wrong,  but also  knowing that she would then find another reason to get rid of her (but properly this time).