Non-dealing clauses: questions before accepting work

How non-dealing differs from non-solicitation

The two clauses often sit side by side in a contract, and people confuse them. A non-solicitation clause targets your conduct: approaching, persuading or enticing. A non-dealing clause targets the result: any business with the protected people, whoever made the first contact. Because proving who made the first move is hard, employers add non-dealing clauses to close the gap. Courts treat non-dealing clauses as more restrictive than non-solicitation clauses and expect a clear reason for them.

Where non-dealing clauses appear in healthcare

• Locum agencies: terms aimed at stopping a direct move to a hospital, practice or pharmacy the agency placed you with. Read locum contracts.
• Private clinics and aesthetics: clauses stopping you treating clients of the clinic at a new practice.
• Consultancy and service agreements: clauses stopping you contracting with organisations you served, such as care homes using a clinical pharmacist service.
• Dental and therapy practices: clauses tied to the practice's patient list.

Agency work has its own rules. Regulation 6 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003 (opens another website) stops an employment business penalising a supplied worker who is not on its payroll as an employee for taking up work with another person. Agencies tend to charge the hirer a transfer fee instead. Locums working through their own limited company can sometimes opt out of parts of these regulations, but the opt-out does not apply to work with vulnerable people, which covers much healthcare work. Ask your adviser which rules apply to you.

How a court weighs the clause

The court asks the same core question as for every restrictive covenant: does the clause protect a legitimate business interest, and is the clause no wider than needed? For a non-dealing clause, the answers often turn on:

1. Who is covered. A clause limited to people you dealt with personally in a recent period is easier to defend than one covering every client of the business.
2. How long. Shorter is easier to defend. The court asks how long the employer needs to win the client's loyalty back.
3. What work. A clause covering only the kind of services you provided is narrower than one covering any work at all.
4. Your role. Close personal contact with patients or buyers supports the employer's case. Occasional contact weakens the case.

The Acas guide (opens another website) says covenants must usually be clear, specific and time-restricted to be enforced.

A care home example

Say a clinical pharmacist provides medication reviews to care homes through a service company. Her contract bars her from dealing with "any care home to which she provided services in the 12 months before leaving" for 9 months. A care home manager she worked with calls and asks her to work for the home direct. Accepting within the 9 months would likely breach the clause, even though the home made the first move. She asks an adviser whether 9 months is reasonable for her role, and whether the clause covers every care home or only the homes she visited.

When a former client contacts you

1. Do not agree to any work on the spot. Thank them and say you will reply shortly.
2. Check your contract for a non-dealing clause and its defined terms.
3. Note the date and how the contact happened. Keep any message.
4. Get advice on the wording before you accept. For a patient with clinical needs, direct them to their usual service or to NHS 111 while you check.

Questions to ask an adviser

• Does my contract hold a non-dealing clause, a non-solicitation clause, or both?
• Who counts as a protected client or patient, and over what look-back period?
• Does the clause stop me working for an organisation, or only for individual patients?
• Would a court see the length of the clause as reasonable for my role?
• If I work through an agency, do the 2003 agency regulations protect me, or have I opted out?

Where to get advice

• An employment solicitor: for a view on a specific offer or a letter from a former employer.
• Union or professional body: the PDA (opens another website), BMA (opens another website) and RCN (opens another website) support members with contract questions.
• Acas: 0300 123 1100, Monday to Friday, 8am to 6pm.
• Citizens Advice: free first help. See Citizens Advice for work problems.
• Northern Ireland: Labour Relations Agency, 03300 555 300.