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Ben Jones
Ben Jones, Solicitor
Category: UK Employment Law
Satisfied Customers: 38538
Experience:  Expert in UK Employment Law
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Hi, my wife has just had to leave a clinic due to a severe

Resolved Question:

Hi,
my wife has just had to leave a clinic due to a severe change in working climate.. She is a self-employed dr. contracted. Now Both of us are planning to set up a private practice and we have found suitable premises that are located about 2,5 miles away from her previous clinic. Now we believe due to situations around her feeling forced to leave that she has been exposed to constructive dismissal. But here comes the query, in her contract there is a statement saying that she is not allowed to work within 10 miles of her previous clinic. We live about 4 miles away from this clinic. Are restrictive covenants like these enforceable? Keep in mind that 10 miles will rule out close to 40% of London with 7.8 Mill people... The facility that we want to use now is in Romford, but on the opposite side of town with a different catchment area.. What is your advice? Thank you!
Submitted: 1 year ago.
Category: UK Employment Law
Expert:  Ben Jones replied 1 year ago.

Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today.
Before proceeding please note that as I am a practising solicitor, I am often in and out of meetings, travelling between clients or even at court when I pick your question up. This may even occur at weekends. Therefore, I apologise in advance but there may be a delay in getting back to you and providing my advice. Please be patient and I will respond as soon as I can. You do not have to wait here and you will receive an email when I have responded.

For now please let me know exactly how long you have worked there

Customer:

my wife has worked at that clinic for 2,5 years

Ben Jones :

Thank you for your patience. If she was genuinely self employed then she will not be able to claim constructive dismissal as this is only open to employees. However, if there has been a serious breach of contract by the employer she may still treat her contract with them as breached and now void, which would mean all its terms would be void too. However, the employer's breach would have had to be quite serious and go to the root of the contract for her to be able to claim that.


 


Instead she could look at the legality of the restrictive covenants and whether they are enforceable.


 


It is common for employers to want to protect their business interests from unfair competition by current and ex-staff. This applies especially to those who have knowledge of sensitive and valuable information, have considerable influence over the workforce or have strong customer connections. However, at the same time it is in the public interest to ensure that workers are free to move between employers and use their skills, knowledge and experience in a new setting.


 


Whilst employers try and impose certain restrictions on their workers, under the doctrine of restraint of trade, any contractual term which seeks to restrict an individual's freedom to work for others or carry out his trade or business is illegal and unenforceable. The exception is when the employer can show it has a legitimate business interest that requires protection.


 


Legitimate business interests (LBIs) are commonly accepted to include:



  • Trade secrets and confidential information

  • Trade or customer connections

  • Stability of the workforce


 


An employer cannot impose a restrictive covenant merely to stop someone competing, but it can seek to stop that person using or damaging something which legitimately belongs to it, such as an LBI.


 


Non-competition covenants, like in this case, will generally be unenforceable, unless the employer can justify their use. As a matter of general law, once they leave workers are restricted from disclosing confidential information amounting to a trade secret. As with non-solicitation covenants, the restriction must be for a limited time. The geographical extent of the limitation must also be considered. Too wide covenants have been held to be enforceable, but more specific restrictions can be enforceable if considered reasonable in the circumstances. In your case whilst a 10 mile radius may not necessarily be unfair in a rural location, in the London area it is likely to be. In these circumstances the restriction will need to be more specific and perhaps exclude certain Boroughs, but a general 10-mile radius will likely be held to be too wide.


 


In summary, the law on restrictive covenants is very subjective and depends largely on the individual circumstances of the business and the LBI that needs to be protected. There are no set rules and procedures, apart from the requirement for the restrictions to be reasonable and go no further than is required in the circumstances. Therefore, it is usually only down to the courts to establish whether a restriction is enforceable and, if so, whether an injunction should be granted or damages should be awarded.

Ben Jones :

I hope this has answered your query and would be grateful if you could please take a second to leave a positive rating - your question will not close and I can continue providing further advice if necessary. Thank you

Customer:

Thank you for your assistance. Your answer is helpful and appreciated. It is in the line of what we thought but it was great to get a qualified evaluation on the topic. Thanks again!

Ben Jones, Solicitor
Satisfied Customers: 38538
Experience: Expert in UK Employment Law
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