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Make legal aid available so low-paid workers can enforce their rights
Low-paid workers should be able to access legal aid to assist them in enforcing their rights when subject to exclusivity clauses – such a policy would send a "powerful message to exploitative or negligent employers" say solicitors’ leaders.
The Law Society of England and Wales submitted responses to government consultations on reforming non-compete and exclusivity clauses in contracts of employment.*
The government consulted on whether to extend the ban on exclusivity clauses beyond zero hours contracts, to contracts where the worker’s guaranteed weekly income is less than the lower earnings limit, currently £120 a week.
“We question how much impact the government’s proposal will have as we are not aware of the wide use of exclusivity clauses for those jobs that pay below the lower earnings limit,” said Law Society president I. Stephanie Boyce.
“There is also an unfairness built into the proposal. If enacted, a person who earns £119 a week cannot be subject to an exclusivity clause, while their colleague who earns £121 a week can be, even though the difference in income is immaterial.
“Instead, the government should allow such workers who have irresolvable disputes over the use of exclusivity clauses to be able to apply for legal aid.
“Introducing such a policy would send a powerful message to exploitative or negligent employers that low-paid workers would be able to enforce their legal rights. It will also give confidence to those subject to exclusivity clauses that the terms of these are fair.”
Our response to the government’s consultation on non-compete clauses sets out our concerns whether their proposals, which include making them enforceable only when the employer provides compensation during the term of the clause, will have the sort of impact hoped for.
“The courts currently do well in deciding on the best balance between encouraging competition and protecting business assets,” added I. Stephanie Boyce.
“The main issue with how the law works is that non-compete clauses are rarely discussed or understood when someone starts a new job. If the issue of whether a non-compete is valid becomes live it is normally at a moment of great tension, when the two parties are separating.
“The simplest way to minimise issues with non-compete clauses would be for employees to get independent legal advice when they are required to agree to a non-compete.”
Notes to editors
* Non-compete clauses are used in contracts of employment to restrict an individual’s ability to work for a competing business, or to establish a competing business for a defined period after they leave. Exclusivity clauses restrict workers from taking on additional work with other employers.
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