Alleged Breach of Contract

[employmentissues]

Desperately need advice, I can't sleep with worry

 

I was offered a job by a new company around 3 weeks ago, handed my notice in with current company, but my notice period is 3 months. I managed to come to an agreement with them that it'd be 8 weeks which means I'd have left on the 14th Sept.

 

A colleague of mine is pretty disgruntled and said he was looking to move. I sent him an email saying the following to his PERSONAL account from my personal account

 

So, serious question time.

 

I know you're a network guy, but how do you fancy joining a startup and doing some Linux Admin stuff. I know you can do it..

 

I'm not sure what your pay is like at GR but can't hurt to ask. On the downlow, of course...

 

Anyway, this bloke has grassed me in to the higher ups, and today they've lawyered up and brought me in to a room.

First of all, they've threatened me with legal action. The exact words is as follows

 

 

The company would consider such conduct along these lines to be an extremely serious matter as it could amount to:

 

1. Breach of your legal duty of fidelity to the company (entitling the Company to seek remedies from the Court for breach of contract);

 

2. dishonest behaviour and/or breach of trust amounting to Gross Misconduct (entitling the Company to dismiss you without notice or pay in lieu of notice); and

 

3. breach of express clauses in your Contract of Employment governing your conduct e.g. clause 11(f) (governing the misuse of information belonging to the Company, for which the Company would see compensatory damages and injunctive relief).

 

The question: Where do I stand here? Any help is appreciated.

What's the deal regarding my notice period? I've got email confirmation of an earlier end date, is this legally enforceable in any way?

[Sidewinder]

Personally I would dead bat the accusation and state that contact was not initiated by yourself but was made on a personal basis and in response solely to your colleague indicating that he was looking for a change.

 

Insofar as their specific allegations are concerned :-

 

1. Basically an accusation that this email constitutes work on behalf of another company. In order to prove this, you would have to have sent the email at a time when you were supposed to be engaged in work for your current employer, or that your actions breached a specific clause in your contract relating to working for competitors. Not altogether straightforward, but interesting that they have deemed this as a breach of the implied term of 'fidelity' rather than mutual trust - Note - that is an implied term unless your contract forbids such behaviour, not a legal requirement.

2. Probably bang to rights, hence your defence of acting in response to a clear indication from your colleague that he was interested in exploring other avenues.

3. Probably impossible to prove satisfactorily. What 'information'? A colleagues indication that he was looking to move on?

 

Regarding notice - you can of course be dismissed for any 'fair' reason during your notice period, so they would be within their rights. The breach of mutual trust is probably sufficient on it's own, and as an act of GM, you could lose rights to notice.

[assisted blonde]

I would think that the company may well go with 2) as the quickest way out of the situation, you are already on notice so you are leaving anyway this way you would be leaving earlier but with less money.

1 and 3 are a possibility it depends I would say, on the type of industry you work in as to how serious this type of thing is taken and dealt with.

However i dont work in HR so this is only an opinion.

[employmentissues]

Sidewinder, thanks for your reply.

 

I'm in quite an interesting situation actually, as I actively WANT to reduce my notice period. We agreed via email that this would be reduced, but now they've said they're going to actively enforce my full three month notice period, which is irked me, quite a lot. I want out, ASAP. I hate the place. I don't need a reference as I already have new employment lined up. Where do I stand regarding this? If I just stop showing up and don't work my notice period, what's likely to happen?

 

What concerns me is that they're going to write to my new employer to ask them if they've attempted to solicit members of staff (they haven't) - even though I don't need a reference, can they throw a spanner in the works, from a legal standpoint? I've been 100% honest with my new employer about these turn of events, but I suspect that out of pure spite that they'll now try and pursue any legal angle to annoy me, which concerns me.

 

I'm lawyering up in the morning, obviously, this advice will just help me sleep better!

[Sidewinder]

Definitely take legal advice, but also be absolutely up front and honest with your new employer. You do not want to appear to be a potential liability!

 

If you are sure that you will not need a reference - but be aware that this could hang around your neck if you need one in the future - then your employer could dismiss you, terminate your contract with immediate effect and you opt not to appeal, thereby becoming free to take up your new employment at the new employer's convenience (and of course assuming that they are comfortable about the reasons for your dismissal). The old employer cannot stop you taking up the new job, nor can they force the new employer to retract an offer of employment. Whether they could indicate that they would drag the new employer's name through the mud, that might be a different matter. How far to reputations go in your line of work? Could quiet words in clients ears about possibly unscrupulous behaviour damage business?

 

If you were to simply stop turning up for work then technically speaking the old employer can sue for breach of contract and ask for damages. They would though be limited to only those costs which they could demonstrate were legitimately caused by the breach, so if they had to bring in other staff to cover your functions, or lost productivity or orders as a consequence of you leaving without serving notice. Would they? From their actions so far I wouldn't want to push it, personally!

 

IMO there is a degree of willy waving here, but how far they would push it, I don't know, hence the need to try and deflect from the fact that you are appearing to be tapping up a member of staff to go and work elsewhere. In the real world, people express dissatisfaction with jobs and receive a heads up on other opportunities every day, and as an employer you accept this as a fact of life.You can huff and puff, but in terms of what they could receive by way of legal action it is very limited as they would have to put a price on any breach - either of notice, or in persuading a member of staff to leave. he hasn't, so technically there has been no loss therefore no damages. That leaves them with the option to dismiss you, and providing that it will not have any immediate - or far reaching - consequences, you may choose to fight that or not!

[employmentissues]

Sidewinder, that is absolutely fantastic advice and has definitely made me feel better. I guess I just go into the office tomorrow and see what the lay of the land is.

 

I don't want to mention lines of work here for obvious reasons, but needless to say there are no clients involved. Also, despite a non-compete clause in my contract, the company I'm moving to are in a completely different sector, so there's no requirement for them to invoke that. With regards to reference, my current company have already made it very clear that they intend not to provide a reference for me in the future, so they've kind of shown their hand to some degree. I don't have much to lose.

 

I think probably, my best course of action is to work until my agreed notice period and take the chance with the potential loss of earnings for them. My new employer has set out a lot of stuff ready for me to start on that date (they are of course willing to wait until they have to) so for me it makes more sense to just leave on the relevant date. I guess they can only really sue for damages to cover the loss of me for one month, which hopefully they won't deem worth the hassle?

 

In your professional opinion, willy waving aside, how far could they actually push this, and what's the very worse case scenario for me from a legal standpoint?

[Sidewinder]

Personally, I don't think it will go beyond considering dismissal. There appears to be no cause of action to take legal action as no loss of business has occurred - the best that they could hope for, on the face of it, would be to seek an injunction preventing any further attempts to induce staff to leave, and that would cost a considerable amount of money for what benefit? In the actions they have taken so far, they have merely paid for a solicitor's letter and advice, and IMO this is an attempt to frighten you. If that has the desired effect, then I do not see that they will, or can, do more. You are not soliciting clients, and your actions cannot damage their business beyond potentially having to recruit another member of staff. They want you to cease and desist, you agree to that, apologise for a misjudgement based on the belief that somebody was in the market for a job, and take whatever sanction they impose. With a profuse apology you might even keep your job and leave as planned.

[geoff1248]

All this must be very stressful. How about a trip to your doctors and a sick note for "work related stress", four/six weeks would seem about right.

[employmentissues]

All this must be very stressful. How about a trip to your doctors and a sick note for "work related stress", four/six weeks would seem about right.

 

There's a clause in my contract that states of I'm in my notice period they don't have to pay me.

 

I've come in this morning to find my email and Internet access has been revoked. I have no computer permissions to do my job.

 

Gonna be a loop night few weeks

[becky2585]

I have to say, unless you've breached any specific non-solicitation restrictive covenants in your contract of employment (and if you had, no doubt they would have told you) then what they're saying is absolute tosh.

 

Case law is clear on this - it is generally not unlawful to attempt to poach staff without specific restrictions in your contract which prohibit this. Once you've resigned, the duty of fidelity doesn't stretch that far. So in terms of any breach of contract claim against you, I'd day the chances are slim to none. There also isn't any gross misconduct here that I can see, so I wouldn't be concerned about that.

 

Additionally, there is little stopping you from refusing to work your notice. If your failure to work your notice out caused them financial loss, this could mean a breach of contract claim against you, but generally speaking, the risks are low. One option is to send a further resignation letter arguing that their bullying tactics and threatening behaviour constitutes a repudiatory breach of contract and you are treating yourself as having been constructively dismissed. This would effectively mean that as they fundamentally breached your contract first, you are legally absolved from having to work your notice period. This claim is strengthened by them removing your computer access.

[Sidewinder]

^^^^

The removal of the tools that you need to perform a large part of your job indicate a clear intent on the employer's part. Becky's suggestion is sound advice and would certainly call their bluff on the matter of breaches of contract.