Q&A Can I add a clause to my employee’s contracts?

Q:      I run a small niche business in the food industry. I employ a handful of staff on zero hours contracts. Since lockdown ended, I have had problems with them coming back in when I need them. I have now discovered it is because they have all been working ‘on the side’. The bigger concern of course is that they may take away business and customers from me. Can I write a clause into their contracts to prevent them working in the same market on the side?

A:       If your workers were not on zero hours contracts you could include a clause in their contract which ensured their personal business or outside financial interests did not conflict with their responsibilities to the job they are paid to carry out in your business. However, under s27A of the Employment Rights Act 1996, employers cannot prevent workers on a zero hours contract from taking work under another contract. But even if they were not on a zero hours contract, they would still not be obliged to inform you, their employer, if they were carrying out work elsewhere in their own time, unless their contract of employment with you required such disclosure.

Ideally you would amend by agreement but alternatively give all members of staff the same maximum statutory notice of the change of 12 weeks. The ball would then be in the employees’ court to accept by carrying on or to leave.

Given the particular problem suffered and the general difficulties in recruiting and retaining staff, it does sound as if new contracts guaranteeing hours are needed. The new contract can give the employee new rights to hours and you as employer the security of the employee not working for a competitor … if those terms are agreed.

Many businesses are encountering staffing problems since lockdown ended, for a whole variety of reasons, and are seeking advice from employment solicitors about changing contracts and terms of employment. 

This question has been answered by Robert Williams, a Partner with GHP Legal.  If you would like to speak to someone about this or any other legal matter it is still possible, and we are doing everything we can to ensure that we continue to offer our high levels of service to our clients.  Where possible, we ask that you communicate with us by phone or email. If you have a new enquiry or for an appointment visit www.ghplegal.com or contact one of our offices: Wrexham 01978 291456, Llangollen 01978 860313, Oswestry 01691 659194 

Robert Williams

Robert Williams

Partner and Complaints Handler

Partner and Head of the Civil Litigation, Personal Injury and Dispute Resolution team in Wrexham