Rate this!
James Fairchild
Member - 336 posts
(first of all, please note that this question is being asked from the employER's perspective - I would appreciate constructive advice based on the legal position, not issues of best practice)
One of my clients, for whatever reason, failed to pay an employee on time. Due to this, the employee has now started work for another party.
Whilst I can (to a point) understand the employee doing this, I need to consider the position from the company's perspective.
Can the company consider that the employee broke their employment contract on the date they started working for the other party? Would this be considered frustration? Or the giving of notice? Would there need to be an explicit clause in the contract prohibiting work for other parties?
Whilst the company are aware that the back pay must be paid, they are looking for the lowest cost option, and if it is possible to terminate this contract early then so much the better.
Rate this!
Anne McAllister
Member - 165 posts
I would be inclined to say the company broke the contract when they failed to pay the employee.
Have a look at this....
http://www.kennedys-law.com/media/docs/Latepaymentofwages.html
Rate this!
James Fairchild
Member - 336 posts
Woah - I'm glad you shared that. Thanks Anne.
Rate this!
Martin Brewer - Mills & Reeve
Online advisor - 92 posts
Well yes strictly speaking the company may have been in breach of contract but that doesn't give the employee the right to work for someone else unless they resign. If they have resigned then that begs the question whether the employer's breach was 'repudiatory'. Failure to pay is clearly sufficient to detroy the contract, but failure to pay on time may not be, you have to look at the circumstances, what the employee was told, how quickly the breach was remedied etc.
You also have to look at whether there was really a breach. good contracts say things like pay will be made 'on or about the last day of the month' so there's some flexibility.
If the employee hasn't resigned but has nevertheless gone off to work for someone else then they have repudiated the contract, so stop paying them.
James you will have noticed no mention of frustration. This may all be very frustrating but it's not close to legal frustraiton which applies in very limited circumstances wher the employee cannot, rather than will not work (for example long term imprisonment).
Best of luck.
0 (0)
