Free «Contract and Employment Coursework» Essay Sample

This paper seeks to investigate the subject of contract and employment concerning the Clarissa case. In this case, we will analyze in detail the subject of garden leave, which is a crucial element in any contract or employment environment. It is essential for all employers and employees to come in to an agreement, which stipulates the working terms and conditions. In this paper, we will examine the essence of garden leave when it comes to employees, employers, and their competitors. A contract of employment refers to the written or oral, implied or express agreement stipulating the conditions and terms under which an individual consents to undertake certain roles. These duties are usually under the direction and control of an employer, and in return, there is an agreed upon salary or wage for the employee. Contracts of employment are a must have for all organizations and the terms and conditions stipulated in them provide a guideline to the operations of most businesses or organizations. In addition, the contracts of employment have implied or express responsibilities of trust and confidence to both parties.

Under the contracts of employment, there is the condition of garden leave, which applies, to all employees in any form of employment. This is more applicable in situations where the working relationship of the employee and the employer has ended before the stipulated period in the contract of employment. Garden leave is a clause in the contract of employment, which allows the employer to maintain an employee on full salary or wage, but not require him, or her to work during the contractual notice period. This condition, therefore, puts off the employee from performing his or her duties for another employer until the expiry of the notice period. The main aim of the garden leave clause is to restrict the employee from transferring any sensitive and vital information of the organization to any other competitor in the field. The clause ensures that, by the time the notice period expires, any information the employee possesses of the company will have become outdated or commercially stale.

The paramount question is whether Clarissa can successfully pursue a claim for unfair dismissal compensation against Cascade. The administering of the garden leave clause is usually subject to certain conditions, and there have been several cases in courts on whether the leave is legal or illegal. In the above case, we are look at an employee who is particularly valuable in Precision Missiles Company. Having been an employee in the company for over thirty years Clarissa holds vital information of the organization and: therefore, she is extremely sensitive to let go in to the job market. The job termination of Clarissa is due to her recent poor work performances, and as detailed in her job description, it may be dangerous to the other employees if she continues to work while making several mistakes. After Clarissa’s divorce, her work performance went dreadfully down as she made exceptionally grave mistakes in the course of her duties. The principal one is when Clarissa erroneously sets a shooting range of 100km instead of 1km, which could have been a tremendously grave mistake in this kind of work. This is only an example of the errors Clarissa committed in the period before her termination at work.

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After all these incidences, garden leave was the only available option to the employer of Clarissa because they could no longer risk the company’s image or business. In the event of garden leave, the employee is entitled to their normal pay and is covered with all contractual obligations like confidentiality, trust and any other duty until the expiry of the notice period. Notable is the fact that garden leave is subject to its presence in the contract. It can only be legal in any court if the clause is present in an employee’s contract. In this case, Clarissa cannot win in a case where she seeks compensation for unfair dismissal because the clause of garden leave is not present in the contract she has with Precision Missiles Company. The fact that she was sent on garden leave by her employer was just a favor to her considering she had been an employee of the company for over thirty years. Clarissa’s termination was not on unfair grounds because her work performance was not up to per and was putting the company at risk. In addition to this, Clarissa wishes to join a competitor company, and this is against the conditions of garden leave clause. It requires that an employee stays out of work for the stipulated time in the notice period and for the Clarissa case, the period is six months.

Compensation for unfair dismissal is subject to the reasons for dismissal and the behavior of the employee while on the garden leave. The employer can fail to pay the employee if he or she plans to join a competitor company before the lapse of the notice period. This means that period in which the company can use to ensure the information the employee knows had expired. In any court of law, the employee will not have a right to any compensation in the event he or she breaches the contract of notice period. Clarissa may not successfully win the case concerning the compensation because of her intention to join a competitor company. The contract of employment she signed with her employer did not have any provision for garden leave and, therefore, no provision of any compensation.

Can Clarissa lawfully accept Flare’s offer of employment? Several cases have been to court in the effort to break the long-term issue of whether it is legal to work for the competitor company before the lapse of the notice period. The first rule of garden leave is that it can only be imposed where there is an express contractual provision allowing it. In the above case of Clarissa, the employment contract did not provide any express contractual imposition of the garden leave to Clarissa. This means that by sending their employee on garden leave was against the terms and conditions of the contract Precision Missiles had with Clarissa. The fact that the garden clause was not present in the initial contract of Clarissa is a breach of contract and can, therefore, make any decisions concerning her future employment. Another condition necessary to in the implementation of garden leave is that the employee will not offer his or her skills for any other employer before the expiry of the notice period. As much as the employee will be on pay from the former employer he, or she will have to be patient for the notice period to expire before contracting with any other employer.

For any employee on garden leave to start working with any employer, it will be necessary for some grounds to be considered to ensure the idea of garden leave is not lost. This in general covers the subject of the right to work after dismissal from work or while on garden leave. The issue of the right to work came from the case of William Hill Organization Ltd v. Tucker, in which the court was to determine whether it was okay for an employee to work while on garden leave. The court’s ruling was that this was subject to several matters such as the nature of the employee’s job the skills present in the job, and if they would degenerate through loss particular use. More so, the right to work will be subject to the provisions of the contract especially the terms of bonus and pay.

Clarissa cannot lawfully accept to work for Flare Company because she is still on garden leave. The fact she is on garden leave is a principal reason for her not to acquire any other employment from the competitor firms. Flare Company is a competitor firm of Precision Missiles Company in the field of missile making and, therefore; there is a high chance that the information and skills Clarissa possesses will be beneficial to the company. Clarissa can argue that there was no provision of garden leave in her contract with Precision Missiles, but this too has an exception. For instance, in the case of Evening Standard v. Henderson (1987) ICR 588, the employer sorts to prevent an experienced production manager from working for a rival firm during the notice period. In this case, the employee used the defense of the absence of the clause in the contract of employment, but, the court held was that he did not have the right to work during the notice period. This can also apply in the Clarissa case, which does not provide for garden leave. Besides the ideology of garden leave, we now look at the nature of work of Clarissa, which is an essential element when analyzing the right to work.

The job description of Clarissa in Precision Missiles Company places her in the bracket of sensitive employees in the company. In Clarissa’s course of duty, she has access to the rapidly changing missile technology, which comprises of the secret guidance systems applied by Precision Missiles plc. It is evident that the employee had vital information of the company and, therefore; the six-month period will be sufficient for the information to be post-dated. For this reason, Clarissa obtaining employment from a competitor company will be unlawful and, therefore, can obtain an injunction on her new job. The sensitivity of the work of the employee combined with the skills can be a legitimate defense in blocking him or her from obtaining another job during the notice period.

In the case of Symbian v. Christensen, there was the case of restraining the employee who seeks to move to a competitor firm and this move was a breach of the notice term. In this instance, it explains the necessity of the notice period a company needs from the employee before it can allow someone to work for a competitor firm. In the same instance, Clarissa has to give Precision Missiles plc a grace period of six months to protect the employer’s confidential information that the employee may know. The main significance of garden leave and the restrictions that come with it is to give some water the post-termination covenants in any employment contracts. These post-termination covenants aim at protecting the employer’s information, which the employee’s, have access during their working period. In the event that Clarissa accepts the job offer knowing that it is unlawful, Precision Missiles Company can sue her in any law of the court. The court will weigh the case and if legal issue an injunction restricting Clarissa from offering her services to the competitor company until the notice period expires. Precision Missiles plc can also stop paying the employee the salary while on garden leave and, therefore, be on leave without pay. From the above cases, it is evident that it will be unlawful for Clarissa to acquire new employment at Flare Company before the lapse of notice period.


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