Contract laws in employment: A case study
Title: Employment Law George worked at rug universe as an helper director. He had been at that place for four old ages and had ever hoped to startup his ain rug concern if the chance arose. His subdivision one statement stated his hours as 40 hours per hebdomad, with two or three yearss off per hebdomad, capable to the operational demands of the employer. his missive of assignment stated, “ you will be expected to work a sensible sum of weekends but this should non usually exceed two weekends in four and a upper limit of four weekend yearss per month. for the last six months, George has worked on mean three weekends in every four, and some weekends he has had to work both Saturday and Sunday. he wants to kick about this, but is diffident how to. Last hebdomad George was told that there was an probe into stock loses, and that he was being suspended. He was told to go to a meeting the following twenty-four hours. The meeting lasted about 3 proceedingss, and he was told that the grounds was pointed to him, but was non given any inside informations of it. He believes he is being used as a whipping boy, because he has non taken any stock. He admitted to you that he had taken information from the selling files and transferred it onto phonograph record, with a position to puting up his ain concern. He has besides approached his co-workers Jack and Andy who work as rug fitters. they have agreed that they will fall in him when the concern is set up. George intends to put up a rug cleansing concern utilizing the client base of rug universe. His contract contains the undermentioned clauses. ( I ) The employee may non beg fellow employees for a period of six months following expiration of his contract. ( two ) The employee may non utilize information belonging to the concern for any intent other than to carry through his responsibilities under the contract. All information belonging to the concern is regarded as so extremely confidential that it amounts to a trade secret. ( three ) The employee may non work in a viing concern for one twelvemonth within a radius of 70 stat mis following expiration of his contract.
1. Explain what George should hold done if he was unhappy with the weekend working? 2. Could the company rely on the fact that for over 6 months he has worked extra weekends, and argue that the contract was varied with his understanding as a consequence? 3. Can George claim unjust dismissal? 4. What may go on if they find out about his programs to put up his ain concern? 5. Will the restraint clauses be enforceable here?
Get downing with the issue environing the demand to work on weekends an analysis of George’s contract provinces that he is required to work a sensible sum of weekends which will usually non transcend 2 weekends in every 4 hebdomads and will be a upper limit of 4 weekend yearss per month. It has been stated in this scenario that George has in fact been working three weekends in every four for the last 6 months and has besides worked both Saturdays and Sundays on some of those weekends. To be able to rede George as to how he should cover with this affair it is necessary to look at the relevant statute law in this country and besides statute law in regard of employment contracts. There besides needs to be an scrutiny of the jurisprudence sing Sunday work.
In general footings if the employment contract states that weekend work is a necessary necessity of the function so the employee will be made to work at weekends. If the contract does non specifically province that the employee will be required to work on a weekend so if the employee garbages and is dismissed for declining the employee would be able to claim unjust dismissal [ 1 ] . Particular regulations can use for certain workers in regard of the enforceability of doing them work on a Sunday. Employees who are shop workers or work in the betting industry can hold particular protection from being force to work on a Sunday [ 2 ] . This ability to decline to work on a Sunday for those mentioned above applies even if the employment contract specifically states that the employee will be required to work on a Sunday [ 3 ] . When engaging an employee who can be exempt from Sunday work the employer is under a responsibility to state the employee about the right to decline to work on a Sunday within two months of the beginning of the employment.
To choose out of working on a Sunday the employee must give the employer three months notice of their purpose to halt working on Sundays. This must be done in composing [ 4 ] . An employer is under no duty to offer the employee alternate hours of work in topographic point of the Sunday responsibilities [ 5 ] and employees declining to work on Lord’s daies are likely to happen themselves losing the rewards they would hold received had he worked [ 6 ] . Employers are non allowed to handle employees unfavorably because they have opted out of working on a Sunday. If an employee is dismissed for declining to work on a Sunday he will be entitled to claim unjust dismissal [ 7 ] .
In order for the employer to alter the on the job hours of the employee and new contract would hold to be issued, which would so necessitate the consent of the employee before it could be enforced. In Robinson v Swallowfield Consumer Products [ 8 ] the tribunal allowed the entreaty where two of the employees refused to subscribe the new contract issued by the employer designed to change their working hours. The tribunal stated that there should be a grade of flexibleness in the displacements offered and that disregarding the complainants for declining to subscribe the new understanding could amount to unjust dismissal. Similarly in Headley V Copygraphic Ltd [ 9 ] the tribunal found that the complainants had been wrongly dismissed for declining to alter their working hours. In Gillanders v Riding Hall Carpets [ 10 ] the complainant won a claim for unjust dismissal when his employer introduced a new Rota system which required the complainant to work at weekends. The tribunal held that the complainant was entitled to decline the fluctuation in hours.
A farther point raised by the inquiry is in relation to the figure of hours that George is working per hebdomad. In his contract his declared hours are 40 hours per hebdomad. It would look from the above that George has been working in surplus of this figure of hours for the last six months. Carpet universe could be in breach of the Working Time Regulations 1998 Reg 4 [ 11 ] and the Working Time Directive 93/104 Art 6 ( 2 ) if he has been working more than 48 hours per hebdomad [ 12 ] .
In this peculiar state of affairs if George should hold spoken to his employer and pointed out that under his employment contract he was merely expected to work 2 weekends in every four and that the maximal figure of weekend yearss he would be required to work was four a month. He could reason that necessitating him to work more than the in agreement sum was a breach of the employment contract and he could decline to make the excess hours. If the employer dismissed him for declining so George would be entitled to claim unjust dismissal as mentioned in the instances supra. As besides discussed above as George is a store worker he could choose out of Sunday work if he so wished. To make this he would hold to subject notice to his employer in authorship of his purpose to choose out. The employer could non so implement the weekend working regulation in regard of Sunday work against George. George could take a firm stand on working no more than the in agreement 40 hours a hebdomad unless he has signed an understanding under the Working Time Directive 93/104 to work a upper limit of 48 hours.
If the employment contract states that the on the job hours can be variable the employer would non necessitate the understanding of the employee before changing the hours. If the hours are fixed hours and the employer wishes to alter these there must be an understanding between the employer and the employee. Such alterations should so be incorporated into a new contract of employment. An employer can avoid a claim for breach of contract if he can non make an understanding with the employee with respect to altering the on the job hours. He can accomplish this by ending the original contract of employment and offering the employee a new contract on the new footings. The expiration of the contract will be regarded as a dismissal which would let an employee who objected to the alteration in the working hours to prosecute a claim for unjust dismissal or constructive dismissal if appropriate.
If any employee does non object to a alteration in the working hours and continues to work the new displacements they have been given an illation will be drawn by the tribunals that the employee has acceded to the alteration in the working hours. Where the employee works the new hours but under protest so the employee will still be entitled to claim for breach of contract at a ulterior phase as they have non accepted the fluctuation in their hours even though they have continued to transporting on working those hours.
In this peculiar instance the tribunals may good make up one’s mind that every bit George has non objected to the alteration of hours and has worked the new hours for a period of six months that he has accepted the new hours. If he can abduce grounds to demo he has objected to the new hours but still worked them so he would be entitled to purse an action for breach of contract.
When looking at whether George can claim for unjust dismissal it is necessary to analyze the allegations being made by the company and whether they adhered to the right process for disciplinary proceedings. Under the Employment Act 2002 ( Dispute Resolutions ) Regulations 2004 [ 13 ] amendments were added to the Employment Act 2002 doing it a direct demand that employers must hold a disciplinary process in topographic point that meets the demands laid down by the Regulations [ 14 ] . Under these ordinances an employer must supply in composing the alleged behavior or fortunes complained of that has led to the employer taking such action [ 15 ] . A transcript of the statement should be given to the employee and he should be invited to a meeting to discourse the affair [ 16 ] . The employee has to be given a sensible chance to see his response to the information given [ 17 ] . It would look from the information above that the company have non followed the right process for disciplinary action which would intend that George would be entitled to claim for unjust dismissal [ 18 ] .
The company could reason that the pickings of the information from the selling file and puting this onto a phonograph record is a direct breach of the employment contract. This would be peculiarly applicable if carpet universe discovered George’s programs to put up his ain concern. The clause of his contract states that he can non utilize the concern information for any other intent than to carry through his responsibilities under the contract. By George utilizing the information with a position to puting up his ain concern it could be viewed that he has stolen information which is extremely confidential from the concern and that such information would be classed as trade secrets [ 19 ] . If the company became cognizant of this they could prosecute an action against George for breach of contract [ 20 ] . They could utilize this breach to disregard George from their employment as he has accessed trade secrets for his ain personal usage. It is by and large accepted by the tribunals that restraint clauses sing the usage of confidential information are a necessary necessity in a concern and are hence adhering on an employee [ 21 ] .
In regard of the restraint clauses at that place needs to be an scrutiny of the usage of such clauses to make up one’s mind whether these can be enforceable against George. Restraint clauses are often incorporated into contracts of employment and as such are likely to be treated by the tribunals as adhering [ 22 ] . In the instance of Dawnay, Day & A ; Co Ltd & A ; another V D’Alphen & A ; Others [ 23 ] the tribunal reached the decision that the usage of restrictive compacts was lawful. The facts of this peculiar instance are really similar to the state of affairs of George in that the complainant had placed restrictive compacts into the contract of employment to the consequence that anyone go forthing the company could non fall in a similar company or put up their ain concern in a similar trade to that of the complainant.
If these clauses had non been in the original contract of employment and had been incorporated into the footings of employment at a ulterior clip the compacts would merely be adhering if the employee signed the new understanding.In the instance of Willow Oak Developments Ltd ( t/a Windsor Recruitment ) V Silverwood & A ; Ors [ 24 ] it was held by the tribunal that the dismissal of employees for declining to subscribe the new contract incorporating the restrictive compacts was unjust. They held that the employees should be entitled to reinstatement or compensation.
It would look from the above that rug universe would be able to prosecute an action for a breach of the compacts if he continued with his program to put up his ain concern after go forthing the company. George could merely avoid such action if he refrained from similar work for the following twelvemonth or if he set up a similar concern outside of the in agreement radius. If George did put up a new concern outside of the radius he would still be prevented from using any staff working for rug universe for the first 6 months of his new concern as the compact prevents him from beging fellow employees within that clip p. If George adhered to the contents of the restraint clauses he would be able to put up his ain concern without action being brought against him.
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Employment Law Journal 2006, vol 73 ( Sep ) , 9-11
Table of Cases
Brake Bros Ltd V Ungless [ 2004 ] EWHC 2799
Canadian Worldwide Express V Smith [ 2005 ] EWHC 671
Corporate Express Ltd v Day [ 2004 ] EWHC 2943
Dawnay, Day & A ; Co Ltd & A ; another V D’Alphen & A ; Others [ 1997 ] EWCA Civ1753 ( 22
Gillanders v Riding Hall Carpets [ 1974 ] I.R.L.R. 327
Headley V Copygraphic Ltd [ 1996 ] C.L.Y. 2627
Leeds Rugby Ltd v Harris [ 2005 ] EWHC 1591
London Borough of Lambeth & A ; Ors v Corlett [ 2006 ] UKEAT 0396
Lynch V Bromley Arts Council Employment Appeal Tribunal 13 February 2007
May 1997 )
McLean V Rainbow Homeloans Ltd [ 2007 ] I.R.L.R. 14
Odoemelam v Whittington Hospital NHS Trust Employment Appeal Tribunal 6 February 2007
Robinson v Swallowfield Consumer Products Employment Appeal Tribunal 29 March 2000
Sayers v Cambridgeshire CC [ 2006 ] EWHC 2029 [ 2007 ] I.R.L.R. 29
Spencer Jones V Timmens Freeman [ 1974 ] I.R.L.R. 325 UKEAT 0005
Thomas V Farr Plc [ 2007 ] EWCA Civ 118 Times, February 27, 2007
Weir & A ; Anor ( The Firm of Brae Cottage Residential Home ) v Stewart [ 2006 ]
Willow Oak Developments Ltd ( t/a Windsor Recruitment ) V Silverwood & A ; Ors [ 2005 ] UKEAT ( 20 October 2005 )
Table of Legislative acts
Employment Rights Act 1996
Employment Act 2002
Working Time Regulations 1998
Working Time Directive 93/104
Employment Act 2002 ( Dispute Resolutions ) Regulations 2004