Contract and Employment Law
The contract of employment is contained in the Contracts of Employment Act of 1963 which was an act of parliament of the United Kingdom and it’s widely considered as the forts employment protection statute as it introduced the requirement for employers to give a reasonable notice to its employees before dismissals from work. It also entitles workers to the right of ones previous average payment during the period of the notice.
The employment contract is one of the categories of contracts that are used in labour laws that attributes to the right and responsibilities between various parties to a bargain. The parties on one end is the ‘employee’ who is often ‘employed by the ‘employer and in using the words of Sir Otto Kahn-Freund such contracts of employment usually denotes a relationship that portrays an economic and social subordination between the parties involved in the contract. Therefore a contract of employment can be defined as legally binding agreement that exist between the employer and the employee and its sets out the employment rights, duties and responsibilities of each party and its usually called terms of contract (Freedland, 2001).
Contract and Employment
Employment contract starts to exist as soon as the employee commences working for the employer and it’s enforceable by law and it can be either inform of a verbal agreement and it doesn’t necessarily have to be in a written form. The law on the contact of employment can include rules which can be implied for instance the right for employer to provide a safe and health working environment. The law also includes other automatic rules like right to be paid while on holidays as well as the right not be discriminated against unlawfully at work place.
Every employee is entitled to written statement of the main employment terms within two months of starting to work (Moye, 2004).
The contract of employment is made as soon as one accepts the job offer and it doesn’t have to be in a written form. When one starts working it implies that one has accepted the job on the terms that the employer has offered even if one doesn’t know what they are. Having a written contract between the parties helps one to cut out disputes with each other at later date in case there is a breach of contract by either party. Breach of contract can be of a verbally agreed nature, written term or even an implied term of contract.
In case an employer breaches the employee’s contract, the employee should be able to check through the terms of service carefully to sure that such employment contract breach is actually defendable and should tray other ways to resolve the dispute before one opts fro a legal action. Other option includes the [possible mediation through bodies like the Acas or the Advisory, conciliation and Arbitration service. If the employee can not solve the dispute with his employer he is entitled to taking a legal action against the other party before whit a special consideration in terms of end gains as well as the cost that is involved in the case.
Compensations ‘damages’ by employers are only done if the employee can proof real financial loss as result of employer breaching the contract of employment. In addition to that employers are also entitled to taking a counter claim assist the employee if they feel that they have one. The legal action taken by the employee can either be through employment tribunal or through a civil court. Such action has restrictions for instance some claims like personal injury can not be made through the employment tribunal.
If employer breach employee’s contract, it’s advisable that they try to solve the matter with its employee informally and especially if it suffered some financial lose they should be able to lodge a complaint for damage against the affected employee. The employer is entitled to make a claim application to employment tribunal in response to breach of contract claim that the employee makes initially. Normally employers use the services of county court to solve disputes arising from breach of employment of contact between its employees and the organization. The employer can be awarded compensation for damages of financial loss for instance if the employee does not give enough notice the employer can claim for the extra costs that is incurred in employing extra staff to take the work of such employee or even for the lost revenue. Though the employee is still entitled to right to wages they earned before they left in addition to the pay for undertaken statutory holiday. Most common breaches of employment contacts by the employee include quitting their work without giving proper notice or incidences of working for a competitor an action which their employment contracts usually doesn’t allow.
The case of Roscius Components Ltd involves its plans to insert a clause in it employment contract which it is intended to protect that secret from being exposed to it a competitors. Such clause is to apply indiscriminately to all of its production and development staff. Such move by the company has made opposition from some its staff members and even led to one of them resign immediately from the company without i.e. after giving a month’s contract which breaches his employment contract which requires him to apply a notice of at least three months. In addition to that he has also started working with the Skyjet which is the Roscius main competitor in the industry and all these incidences as led to Roscius Components Ltd. stipulating on undertaking both managerial and legal measures to resolve the impending fallout in the company.
The dilemma that the company faces include: whether it can fairly dismiss the remaining members of staff of the production and development department who refuse to accept the proposed restraint clause, whether such proposed clause is valid by the law? And finally is it advisable for the company to obtain an injunction that prevents the resigned member of staff from undertaking the employment with Skyjet for the remaining period of the agreed upon three month notice.
If the company dismisses the other employees from the production and development department than it must follow the statutory requirements of dismissal from job as stipulated by the law with out which the employees can loge a claim of being unfairly dismissed by their employer and this will prompt a legal action which might result in the company incurring costs inform of compensation and court expenses. Unfair dismissal of contracts of employment for inadmissible or unfair reasons and when the employer is challenged in court should be able to establish that such dismissal was based on considerable reasons like gross misconduct, lack of qualification, incapability to perform the outlined duties or even redundancy. Often in such case the cost always take the employees statutory rights into consideration hence the high chances of them winning case they lodge against their employer. The statutory right on unfair dismissal gives employees who have offered their services for one year or more the right to complain to the tribunal on the basis that they have been unreasonable or unfairly treated by their employer. So the before the Roscius Components Ltd. decides of dismissing the staff who refuse to adhere to the proposed clause in restraint, it should first ensure that it take a clear and careful analysis of the duration that each member of staff involved have offered their services to the company. It is therefore unwise for the company to just dismiss them on the basis of refusing to accept the clause as they will be entitled to sue the company for unfair dismissal.
Under the Employment Rights Act of 1996, the workers are protected from being sacked or chosen unfairly for claims of redundancy hence are entitled to claim for such rights if they have offered a continuous one year service to the company. An employee can be considered for an unfair dismissal if the employer breaches the information and consultation Regulations of 2004 and if he brings proceedings against his employer on claims of breaking of certain statutory employment rights agreed upon in the contract of employment (MacDonell, 2004). In this case, if Roscius Components Ltd considers firing the affected employees I will be sued for breaching the contract and on unfair dismissal as these members refused to accept the idea of the company inserting the proposed clause into their contracts. Such actions should involve heavy consultation from both parties involved to yield a consensus on the dispute.
Generally, an agreement must be reached between the employer and the employee before terms of contract undergo any changes. On the other hand, any employee able to lodge a claim of unfair dismissal against the employer must be able to do so before three months elapses from the effective date of dismissal of the contract of his employment. The given time scale for a dismissal does not have nay form of time extension and the time scale is strictly applied by the tribunal. If the tribunal finds in favor of employee then they are entitled to remedies including: reinstatement, engagement or even compensation.
The employee who has resigned might sue the company on terms of constructive dismissal as he resigned in response to a fundamental and significant breach of their contract of employment his employer especially when he proposed to insert clauses in their contract without sufficient consultation that would have made his agree on the proposed change. Although such suing are always hard to win as the employee has to follow the claim as soon as possible after it occurs and its usually prior to three months otherwise he may be construed to have waived it. If the employee fails to follow the statutory grievance procedure then the compensation may be reduced (Klarfeld, 2004).
The employer is also advised not to risk the action of terminating the employees who have refused to accept the insertion of proposed clause as it risks facing them suing for wrongful dismissal which is a contradictory right under the statutory which comes about if the employer terminates employment contracts contrary to the terms it contains in it for instance if the employer implements the termination without giving appropriate notice to its employees.
In normal situation if an employer wants to change employee’s contract he must consult the employee or a representative of the employee for example a trade union official which the employee can either be a member or not, he must also explain reasons why the changes are to be made and he must also be ready to listen to alternative ideas offered by the employee and finally a consensus must be reached upon by the parties involved prior to effecting any changes in the contract of employment. Changes to employment contracts can be made by an agreement between an employer and employee, collective agreement or through implication i.e. through a change in long standing practice and custom of the organization. For the case of Roscius Components Ltd where some members of staff have refused to accept the change in their contracts of employment the employer should not just bring in the changes but can use the alternative of following the statutory requirements of terminating the employees contract through giving of notice and offer the revised one i.e. effective sacking and taking back of the ones who will agree on the new term of service consequently terminating contracts of the members of staff who fail to accept the new terms of service, in doing this the company will be able to escape the court and tribunal battles which are often costly. By forcefully introducing changes to the contract of employment makes the company to breach its terms and the employees affected will be able to sue the employer for claims of breach of contracts, unfair dismissal, unlawful deduction from wages and constructive dismissal especially for those who are forced to resign as result of unable to bear to the new changes in contract of employment (Wolkinson, 2007).
The idea of Roscius Components Ltd trying to obtain an injunction on the employee who resigned will not work unless the company has sufficient and tangible evidence that the employee is in possession of actual documents that contains information on the secrets of the developed method of carbon bonding otherwise the law supports the betterment of individuals especially those were not were not subject to any post-employment contractual restrictions. The law states that any employee is free to move to next employment with the general skills and knowledge that he acquires in his tenure while with his former employer hence based on the position of confidence and trust that the employee accorded to his employer prior to the fallout in their relationship the law therefore accords him the right to pursue the occupation for which he is trained best in hence can not be compelled to erase all the knowledge, general skills and expertise he has acquired through experience. So the idea of the company seeking for a court injunction might not work for them as it had not patent its secret on carbon bonding and also from the fact that the employee’s initial contract did not include any post contractual restriction.