Employment Law help?

One of my colleagues is in this exact position - she left on Wednesday, is taking the final week of her notice as holiday so technically is employed by my organisation until, and including, Friday.

She wanted to start her new job next Wednesday but was told by our place that to do so she would be in breach of contract.

As far as I know it's nothing to do with HMRC as they only care that people are paying the appropriate tax on all sources of their income. But her employer may be able to be a complete t0sser and sue her for breach of contract (but only if her contract says she many not take a second paid job).

I just do not understand why anyone gets any satisfaction or pleasure out of being so petty.

She's under contract to her present employer until the agreed leaving date. Doesn't matter if she's working, on holiday, sick, on gardening leave or anything else.

bc

STEFANOS4784 wrote:

So why does that stop her having a second job?

Because the employer has told her that she can't and while she has a contract with him it's his call.

bc

He is correct. She has a term of notice she has to give, be that 4 weeks or whatever. That depends on how long she has been employed there or whatever her contract of emplyment states. If she is being paid but not attending she is still technically in his employment and therefore cannot accept another position if that is what her contract suggests. It is referred to as "Gardening leave"

But then again it might be hastle for her to get her last pay-pack, might not be worth the bother

all that matters here is what her contract says. many contracts of employment forbid second jobs

BUT if it's a company run by the bloke himself she might have to chase her wages through small claims court, can she be arsed if it comes to it?

roadrider84 wrote:

Beancounter you're talking absolute woffle.

Unless advised otherwise, the express (or implied) terms of her contract will not permit her from having a second job. Until such time that her contract with her present employer ends, the only penalty she will incur is an increase in the tax she will have to pay for the second job.

If she is in breach of contract then it would almost certain be a sackable offence. I suspect most employers would issue a warning (ie. choose one job) to give them more solid ground at any tribunal.

There is an easy solution.

If she is on holiday it is pretty much up to her how she spends her time, providing it is not specifically excluded by the contract of employment, as second jobs may be. If she were, for example, to do some volunteering in a charity shop there would be no breach of a contract of employment forbidding working for another employer as the charity shop is not an employer. So if she were to do some voluntary work helping out a friend in a shop there would, similarly, be no breach of contract.

The issue for the employer seems to be around her being paid twice for the same time - so she needs to tell him that it is voluntary work...If, some time later, the friend decides to give her a gift as a token of appreciation there would be no obligation on your friend to turn it down. If the gift were not specifically linked to the voluntary work it is probably not even taxable. Technically for this to work there would have to be no prior agreement or expectation of the gift.

If your friend does do paid work for someone else and this is in breach of contract it would probably be reasonable for the employer to withold pay for any period she was not available to work (which includes being on holiday) under that contract of employment. Basically he can't insist that she doesn't work but it might mean she has to give up the holiday pay as compensation for nreach of contract.

"Gardening leave" is different and is usually used to refer to situations where after the employee has given notice, the employer does not want the employee to carry on working for them and having contact with their customers. So, instead of pay in lieu of notice the employer insists that they continue to be employed for the full notice period, but stay at home 'gardening'. This is usually done in jobs where there is customer goodwill linked to the employee (e.g. hairdressing) and the ex-employee is going to work for a rival. Their enforced absence from the industry gives the old employer the chance to develop the customer relationships through other staff before the ex staff member has a chance to poach them for their new employer's business.

so there :P
Let us know how she gets on/what happens

There are certain common clauses in employment contracts that are pretty difficult to enforce in a court of law and the consentual leaving of one job to join a competitor is one of them . In this case, the individual is leaving - '2 job' clauses in contracts typically refer to conflicts of interest - for the employer to try and make a successful claim, they are really going to have to prove some sort of 'loss' i.e. goodwill or reputation. Apart from the need to declare the second income to revenue, I doubt there's any real case to answer.