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Hi.

My girlfriend has just left her role at a nursery - let's call it"Nursery A". While there her contract said that she was not allowedto work for another nursery within 5 miles as the manager does not want hercurriculum and way of working copied - even though that is that last thing mygirlfriend would want to do!

She found a job with "Nursery B" which has multiple locations,however, due to the nature of her skill set she is required to work inside the5 mile radius.

The manager of Nursery A has now written to her threatening my girlfriendwith legal action.

I, personally, think that this clause (the contract was signed btw) is veryrestrictive and basically rules out her working for any nursery in this town.

I'm not a legal expert so I would like some very basic advice.

1) What is the likelihood of Nursery A being successful with legal action?

2) What would be the consequences if Nursery A was successful?

3) Can Nursery B just state that she is based at a nursery outside of the 5miles, however, she may be required to work at any location?

Thanks

Andy.

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Hello and welcome to CAG.

 

I hope the forum guys will be along later with advice for you, once their day jobs permit. Please bear with us until they're able to get here.

 

My best, HB


Illegitimi non carborundum

 

 

 

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is the clause time barred?

 

5 miles is an entirely reasonable radius.

 

the time to challenge the clause was of course BEFORE signing the contract, not now!!

 

I think you may need a specialist solicitor if you think Nursery A is seriously doing more than blowing smoke. This is a rare potentially enforecable clause.


Never assume anyone on the internet is who they say they are. Only rely on advice from insured professionals you have paid for!

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Restrictive contracts are used in certain business to prevent poaching of staff and customers or intellectual property. Having signed such a contract there is the problem for nursey A to prove that her working for nursery B is detrimental in the way covered by the restriction. As your girlfriend is not working for herself and presumably does not decide the curriculum for the nursery group she works for (bearing in mind OFSTED will have approved such) the contract would be dismissed as being overbearing and thus unenforceable if taken to a court. Nursery A cannot insist on nursery B sacking her so at most it will be a case of proving a loss as a direct result of your girlfriends employment within that 5 mile zone.

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ericsbrother and I have different views :)

 

Here is some further information which may help you make up your mind

 

http://www.hrbullets.co.uk/employment-law-basics/restrictive-covenants.html


Never assume anyone on the internet is who they say they are. Only rely on advice from insured professionals you have paid for!

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5 miles could be reasonable, but only if its necessary to protect Nursery A's legitimate business interests.

 

Nursery A could go to the high court for an injunction to prevent her from working there, but are they really going to want to spend £10,000+ in legal fees to do that? I would say its unlikely.

 

Plus, it's not worth them pursuing a breach of contract claim against her, because they won't have suffered a financial loss as a result of any breach. Well, probably not at least.

 

If it was a different industry and she was competing in the sense that she would be poaching business, that would be different, but I fail to see what significant damage a nursery worker could do and why the 5 mile radius would make any difference!

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it would be of help if you could scan up the section of the contract that this relates to, as it is all the the wording.

 

would she still not be able to work there if she took the job as a cleaner i think not this is why i say it is all in the wording

 

there will have to be a time limit if not then you will find that you are deneying this person employment and are likely to end up wiht egg on your face but this all seems very petty

Edited by huggy41

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So what are you saying? Nothing listed here that is different unless you are proposing that signing a piece of paper makes it lawful and enforceable under all circumstances?

 

ericsbrother and I have different views :)

 

Here is some further information which may help you make up your mind

 

http://www.hrbullets.co.uk/employment-law-basics/restrictive-covenants.html

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ericsbrother i read it to and i had to laugh this is a Nursery for gods sake not Boeing.

 

what is the name of the nursery unless this is top secret


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ericsbrother i read it to and i had to laugh this is a Nursery for gods sake not Boeing.

 

what is the name of the nursery unless this is top secret

 

Not wise to name it on a public forum.

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Not wise to name it on a public forum.

 

and why not ?

 

it may give us a better understanding of the company if it is one or it maybe just an individual setup in her own home


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So what are you saying? Nothing listed here that is different unless you are proposing that signing a piece of paper makes it lawful and enforceable under all circumstances?

 

I'm saying it's not 100per cent clear cut and offered a link to a neutral view. Not sure why that is getting me attitude?


Never assume anyone on the internet is who they say they are. Only rely on advice from insured professionals you have paid for!

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Types of restrictive covenants

 

Typical restrictive covenants attempt to restrict the following activities on the part of the employee:

disclosure or use of the employer's confidential information

working for a competitor

soliciting the employer's customers/suppliers

soliciting the employer's remaining employees

dealing with the employer's customers/suppliers/employees

 

i cannot for the life of me find that this would apply to a kids nursery .


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My view is that the term is an unfair contract term and would most likely be struck out. Terms that unreasonably restraint trade are unfair terms. Look up restraint of trade on wiki. Also this link http://www.out-law.com/page-7086

 

Firstly nursery A has to show that thier intellectual property (currliculum) or trade secrets has been passed onto nursery B. Your GF could easily counter this by giving an undertaking not to divulge the information (confidentiality clause). so a Restraint of Trade clause is way over the top when a confidentiality clause would protect nursery A's interests. Also what she used to pay is relevant. Is she was paid a whopping great salary then the restraint of trade clause could be justified (because part of the pay would be a compensation for the restriction).

 

Also you didnt say if this was a time limited clause - any clause more than 6-12 months is going to be seen as unfair -look up case law on this.

 

Secondly, nursery A cannot force nursery B to dismiss your GF. Their only remedy is liquidated damages (money) against your GF. For this, they have to show loss - this cannot be theoretical and too remote. Its extremely difficult to demonstrate (did the contract have a genuine pre-estimate of the loss? I doubt it)

 

I wouldnt worry too much.

 

Your GF should write back saying that she believes the clause to be an unfair clause because it is a restraint of trade clause and is out of proportion with the impact it attempts to restrict. She should explain that she has not divulged any trade secrets or curriculum matters and is happy to give an undertaking not to do so for six months from termination of her previous employment, i.e. a confidentiality clause. This would provide adequate protection to the position of nursery A and is more in proportion.

 

Also explain that nursery A is welcome to take litigation action on this matter should they choose to, but make them aware that she will be pursuing her costs against nursery A and she has been able to identify several no-win no fee solicitors who will support her, backed by an ATE insurance policy (ATE= After The Event). It is likely that costs would run into five figures.

 

that should put them off


I am not a lawyer, so all my advice is provided on the basis that you will check them with a trained legal professional with legal insurance.:(

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and why not ?

 

it may give us a better understanding of the company if it is one or it maybe just an individual setup in her own home

 

Good practice and forum etiquette. We don't encourage naming employers where there is a possibility that the organisation concerned might stumble across the thread by Googling their own name and finding their business discussed on a public forum. There is the potential that not only could this damage the OP's case as the organisation could take steps to correct any errors they may have made, but the information (and remember we see only one side) could also come back to haunt the OP in the event of litigation. In rare cases, we could also be (and indeed have been) requested to remove material under threat of action for defamation

 

Keeping information anonymous unless and until there is factual evidence to prove an allegation protects not only the OP from potential problems, but also the site. Granted that this may not always be the case, but the principle is the same across the site and we routinely remove identifying information wherever there is a risk.


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We don't encourage naming employers

 

post 1 states x employer .

 

if we don't have all the facts then it's pointless trying to help , will find a better way to use my time.


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post 1 states x employer .

 

if we don't have all the facts then it's pointless trying to help , will find a better way to use my time.

 

Hello there.

 

That is your prerogative, huggy. I understand that on the other forums where you help, it's important to know who a lender is, for instance. As Sidewinder says, historically this forum has operated on anonymity and I can't remember a case where not knowing who the employer is has been detrimental. On the other hand, I can remember a couple where it's been a problem.

 

deathbycrayons is an example where the employer caused a few problems.

 

My best, HB

Edited by honeybee13
Typo.

Illegitimi non carborundum

 

 

 

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A few years ago this forum helped me too, if only somewhere to sound off. I support what Honebee says. I think it works better if the employer remains anonymous. cannot think of one reason why we would need the name of employer. once a case has been determined, it might be appropriate to name names , if only for retribution. As we all know most of these cases get settles through compromise agreements so namin names would be likely to prejudice that. At the end of the day the employees interest is paramount (even tho I am often curious/nosey)


I am not a lawyer, so all my advice is provided on the basis that you will check them with a trained legal professional with legal insurance.:(

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