Contract working restrictions

RE: Contract working restrictions

James Dunne — Thu, 17 Aug 2017 21:24:37 GMT

Hi Everyone. I second Malcolm Ness advice of getting good legal advice at cost to assess the specific legal issues affecting your individual situation. Basing your actions on other people's experiences is unwise in this instance, but hearing their experiences is useful for sure. I would point out, no-one has considered that CVS - or any other corporate - would not wish to have a disgruntled former employee telling all and sundry how they were hounded through the courts by the faceless corporate. They do not want recruitment difficulties any more than the rest of us! As has been mentioned in another post, if you approach them with a reasonable solution they are more likely to be reasonable towards you than not.

RE: Contract working restrictions

ALASDAIR MATHIESON — Mon, 14 Aug 2017 18:05:30 GMT

Hi An On,

I also went through this several years ago, and felt I should comment . Some of the previous posts are very supportive and sympathetic, but this is a legal matter.

"Binding-out" clauses are, per se, illegal [ restriction of trade ] but they are still included in the majority of veterinary employment contracts. If you have signed this contract, you have agreed to the terms of this clause, whether these terms are reasonable or not in terms of distance and time.

If you leave and break these terms, there is every chance CVS will seek an injunction which, because you signed the contract and therefore agreed to the terms, they will be granted. This will stop you breaking the terms, and will be in force until a full court hearing which will take place months or years later.

If CVS do not challenge you, it opens the door to other employees to do the same.

By the time your case has gone through court, your legal bill will be approaching six figures.

I hate these clauses. I owned my own practice before retiring last year, and there was no way that any of my staff's contracts would contain one.

Please send me a private message. I'd be happy to help in any way I can.

RE: Contract working restrictions

chris Jones — Mon, 14 Aug 2017 16:53:13 GMT

one more thing I forgot to mention which I didn't do.

check your house insurance as sometimes you can get an add on which will cover employment legal disputes. If anything does happen then you would be covered, just check the small print. do it soon not after the event!

I was quite concerned when I did it but I knew it was the right thing to do, I had no future there as it was just going to turn in to another corporate practice and so I needed to jump ship. I was worried that I would be hauled into court but ultimately there was nothing they could do.

Life is too short do what you need to do to make yourself happy.

pm me if you need to

chris

RE: Contract working restrictions

chris Jones — Mon, 14 Aug 2017 16:20:25 GMT

I had a very similar situation about 7 years ago when I moved practice to another very locally. I had a tied in contract that said I could not work in the west of devon for 5 years after leaving! I grew up locally so wanted to stay in the area.

I sought legal advice and it basically came down to this.

1 - they cant do anything. if you were a senior vet or partner leaving then they probably could but as an associate they would be very hard pressed.

they could try it on but its unlikely.

2 - its actually in your interest to have a very draconian contract like this, if it is too restrictive it wouldn't get anywhere in court. if it is reasonable (very wooly) then it may stand up but if it means you cant work in the area that you live then they can take a hike.

I would get some good legal advice from a decent solicitor (and bva) and crack on with what you want to do.

I was upfront with the practice, I wrote a letter saying I am leaving and working at X practice and that I understood that this was against my restrictive contract but after seeking legal advice I am going to proceed anyway. I continued that I am a not going to actively poach clients etc etc

I kept a low(very ish) profile for 12 months following the move then did what I needed to do for the good of the new practice. Nothing came of it although at the time they were an independent practice (now cvs) so I am not sure how a corporate with deep pockets would approach such a move.

as far as not signing contracts because of this sort of thing, often you don't have a choice.

good luck and don't let it stop you.

chris

RE: Contract working restrictions

Clare Tapsfield-Wright — Sun, 13 Aug 2017 18:34:06 GMT

[quote user="Francisco Gomez"]

[quote user="Clive Ansell"]

The more I think about this, the more I am left wondering why someone agrees to it and signs such a contract in the first place?

[/quote]

By the time the contract is in front of you, backing down off it can be difficult.

[/quote] Francisco I would recommend that you never sign a contract or any legal document with an unexpected clause that you have doubts about , even if it means delaying signing and it feels difficult to refuse. It is always reasonable to ask for time to seek advice from a third party or a lawyer before you sign.

In this instance I agree with others that they should seek legal advice but hopefully it will not be a problem if reasonable discussions take place and no intentional poaching of clients occurs. It is there predominantly to prevent a vet setting up two doors down and deliberately taking clients with them.

RE: Contract working restrictions

Glenn Hodgson — Sun, 13 Aug 2017 18:07:46 GMT

They would have to prove financial loss and prove that 10 miles is reasonable, it is not for an associate. Possibly would be if you were a partner.

Be polite and fair and should not be a problem. They would have a stinker of a job upholding a 10 mile restrictive clause in a big city. You could possibly get some stressful lawyers letters though. I'd have a chat with them in the 1St instance.

RE: Contract working restrictions

Neil Wheadon — Fri, 11 Aug 2017 22:38:13 GMT

[quote user="Michael Woodhouse"]Well, even if the legal position is not clear, are we not honest and upstanding members of society? Does a vet signature not have a degree of integrity? If I signed such a contract then I'd abide by the terms. If I had a real problem with those terms I'd address them before signing it.[/quote]

Whilst this is an honourable position, in this case the ground will have moved under ANON's feet. Several years ago CVS may have owned one practice. With acquisition they have effectively cornered the veterinary market in this location, so insisting on this would be seen as unreasonable surely?

Neil

RE: Contract working restrictions

Malcolm Ness — Fri, 11 Aug 2017 21:43:03 GMT

[quote user="An On MRCVS"] Can they uphold this? [/quote]

They can try, but they will fail and for that reason, they won't try. But don't take my word for it, take some good legal advice. Good legal advice will cost, but it will be worth it.

Free advice, legal or otherwise, is invariably worth exactly what you have paid for it.

RE: Contract working restrictions

Francisco Gomez — Fri, 11 Aug 2017 18:24:52 GMT

[quote user="Clive Ansell"]

The more I think about this, the more I am left wondering why someone agrees to it and signs such a contract in the first place?

[/quote]

By the time the contract is in front of you, backing down off it can be difficult.

RE: Contract working restrictions

Clive Ansell — Fri, 11 Aug 2017 17:06:16 GMT

The more I think about this, the more I am left wondering why someone agrees to it and signs such a contract in the first place?

Why is it such an issue anyway? as a locum I work for several practices close to where I live who are all independent of each other and in competition against each other. I have never had issues at all and have never been asked to sign any form of agreement that I cannot work elsewhere.

RE: Contract working restrictions

Nick Taylor — Fri, 11 Aug 2017 16:20:04 GMT

These covenants are always tricky but the important principle is what is 'reasonable'. Reasonable to protect the businesses interests and reasonable to ensure you can earn a wage.

i don't see why the vet industry is any different to others with such restrictive covenants. So in your shoes I would expect the contract you signed to be upheld assuming the restrictions are reasonable in terms of distance and time.

Whilst some on this forum say you can break your contract as some do with regards notice period, the enforcement in this case would not be against you. Your old employer will take out an injunction against your new employer stopping you from working pending the outcome of your case with your old employer.

if your restrictive covenant in unreasonable I think you should take the course of action you would if it was reasonable.

Assuming it is reasonable I would advise having a very sensible/professional/pragmatic conversation with your employer and you may be surprised how accommodating they will be. A couple of years ago we hired a vet from a CVS practice who was subject to such RC. We reached a compromise and all parties were happy.

If you can't reach such an agreement then maybe find a company that has multiple sites so you can commute to a site further away for the period your RC applies and come back to the one nearer your home once it is over.

Good luck but I can tell you CVS can be reasonable and helpful if you are upfront and honest with them.

RE: Contract working restrictions

Marie Kubiak — Fri, 11 Aug 2017 15:31:47 GMT

Having been through similar previously and spoken to various lawyers/advisors, the information I was given was:

-25 mile radius for 12 months was unreasonable, indeed any significant radius such as yours within a city is likely to be found unreasonable

-This did not nullify any other part of my contract

-My previous employers still had the right to pursue me in court if I broke the covenant and although it would be likely thrown out as unreasonable it would take time, money and stress with the possibility of being forced to cease work until it was resolved.

ACAS acted as negotiators to reduce radius and duration of restrictions to a reasonable compromise.

Definitely chat to ACAS and get a more up to date viewpoint and they are great at working as an intermediary to stop things descending into arguments.

Marie

RE: Contract working restrictions

Rob Loxley — Fri, 11 Aug 2017 13:47:24 GMT

[quote user="Bob Russell"] If any part is not enforceable then the whole contract is likely to be considered void. It is either fully OK or not OK at all.[/quote]

Is that not where the blue pencil comes out?

[quote user="Bob Russell"]Open up and poach clients from next door and you may not be considered to have behaved reasonably. Quietly join a practice, do nothing to encourage followers and hopefully you will be fine. Just be honest with your new employer![/quote]

I agree, for the OP, it is unlikely to be an issue but it's worth being aware of where these clauses are legally unenforceable, or where probably they just aren't worth enforcing.

RE: Contract working restrictions

Bob Russell — Fri, 11 Aug 2017 12:55:28 GMT

Our ex-bank manager was allowed to contact previous bank clients (he now has a financial services company) after 4 months.

I doubt that 10 miles open ended would be enforceable. If any part is not enforceable then the whole contract is likely to be considered void. It is either fully OK or not OK at all.

If you have local commitments such as house, kids in school then it would be unreasonable to expect you to move. Such a clause may well then be considered a restriction on your ability to work and therefore limiting your rights.

Open up and poach clients from next door and you may not be considered to have behaved reasonably. Quietly join a practice, do nothing to encourage followers and hopefully you will be fine. Just be honest with your new employer!

Binding out clauses are difficult to enforce.

RE: Contract working restrictions

Iain Richards — Fri, 11 Aug 2017 12:01:12 GMT

You need to take some advice. BVA legal helpline as a starter. However, if you condense the wisdom of the previous answers, it's about right. Is the clause time limited? If it's open, then it's clearly unreasonable and can't be enforced. Even if it's time limited, that too has to be reasonable. If 10 miles is the whole city, then that is unreasonable. Even if it is reasonable time and distance, then there still needs to be a verifiable loss to the previous employer, unlikely with an assistant. Hence Clive's answer is the most apposite.

RE: Contract working restrictions

David Mills — Fri, 11 Aug 2017 11:10:14 GMT

[quote user="robloxley"]I was chatting to my brother (who is an employment lawyer) and there have been lots of such clauses put through the courts[/quote]

Not in the veterinary sphere I don't think (unless something's changed).

What we're talking about is an assistant, probably paid somewhere between £25-45k moving practices. It's hardly some chief exec jumping ship with inside secrets. The cost to take it to court is likely to be somewhere in the region of £10-15k. Further, as Atko says, if anything came of it a defence utilising the Human Rights Act would I suspect be very likely to succeed in this case given the OP's position.

As long as the OP doesn't do anything stupid like poach clients or damage the business, then the CVS would have no case other than some flimsy line in a contract. So would be very unlikely to succeed in court. It is very difficult to prove that clients followed a vet because of anything the vet said or did. Besides, the hassle of it all (and the time) is just not worth it.

The ethical problem of "standing by" the signature of such a contract when it puts an overly restrictive covenant on someone is miniscule. People break their contracts all the time (for instance when you leave a job and don't work the contracted notice period) without knowing it. Two wrongs don't make a right but it's hardly the same as a dodgy certificate.

RE: Contract working restrictions

Martin Atkinson — Fri, 11 Aug 2017 10:12:43 GMT

I'm pretty sure that this would be unenforceable as it is a restriction of trade (your right to work/earn a living) especially as they have what may be an unfair monopoly but may be a good idea to take legal advice. I would recommend James Cronin (Eight Legal) who specialises in veterinary work and I suspect would be delighted to put one over a corporate. Tell him I recommended him and he might give you a discount, alternatively he might punch me in the nose next time I see him!

RE: Contract working restrictions

Gillian Mostyn — Fri, 11 Aug 2017 09:05:22 GMT

I doubt it would be enforced unless you actively sought to damage the business. They are there to protect the business, not to 'punish' you. Leave quietly and don't try to poach clients, and you'll be fine.

RE: Contract working restrictions

Rob Loxley — Fri, 11 Aug 2017 08:49:15 GMT

[quote user="David Mills"]AFAIK they've never been tested in court or tribunal so there is no case law to guide this[/quote]

I was chatting to my brother (who is an employment lawyer) and there have been lots of such clauses put through the courts

RE: Contract working restrictions

Francisco Gomez — Fri, 11 Aug 2017 08:42:04 GMT

[quote user="David Mills"]

AFAIK they've never been tested in court or tribunal so there is no case law to guide this. They can essentially be ignored as the cost of pursuing them is normally prohibitive in the veterinary sphere.

[/quote]

I'm sure is not prohibitive to a company of the size of CVS. An they could as well use one case to teach a lesson.

There's also the issue of the RCVS Code. You signed a contract and should stand by your signature.

I feel the writing of these on a contract is bullying and 'stealing clients' should not be blamed on the new practice to acquire them, but on the practice's own fault of retaining them.

RE: Contract working restrictions

David Mills — Fri, 11 Aug 2017 08:24:16 GMT

RE: Contract working restrictions

Rob Loxley — Fri, 11 Aug 2017 00:08:46 GMT

[quote user="An On MRCVS"]Can they uphold this? Otherwise I will have to work for them forever as they own most of the practices in my city![/quote]

Such restrictive covenants can be legally enforceable as long as they are reasonable and only protect the practice's legitimate business interests (and often just stifling competition is not enough). Whether they would actually pursue it is a different question.

Such a clause, if open ended (ie with no termination date after you leave) would be considered unreasonable, since as you say it would unreasonably restrict your ability to ever get another job. Depending on the geography (urban/rural, catchment area etc) 10 miles exclusion might be considered unreasonable, since their legitimate business interests to protect may not extend this far. There is also the question of your current role in the business and how much your working for a competitor might affect their legitimate business interests anyway; ie more notice would be taken in any claim if you were a longstanding partner than a recent employee, say.

RE: Contract working restrictions

Michael Woodhouse — Thu, 10 Aug 2017 23:14:03 GMT

Well, even if the legal position is not clear, are we not honest and upstanding members of society? Does a vet signature not have a degree of integrity? If I signed such a contract then I'd abide by the terms. If I had a real problem with those terms I'd address them before signing it.

Whether it was in your previous employer's interests to peruse you would depend on many factors, the biggest being the likely impact on your previous practice (taking all the clients, setting up on your own). Some guys I know took legal advice about this (they didn't like being bought and over half the staff were going to set up in direct competition and they were told they'd likely be taken to court and lose).

RE: Contract working restrictions

David Mills — Thu, 10 Aug 2017 22:49:46 GMT

It's not enforceable. Essentially.

RE: Contract working restrictions

Stephanie Wellings — Thu, 10 Aug 2017 22:39:07 GMT

I had a similar clause in my first job and the advice from the BVA legal helpline people was that those clauses are generally not worth enforcing - it would cost them a lot to take any action and they would be unlikely to get anywhere if they did, especially if the clause was 'excessive' in the first place.