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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 48452
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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We are a small company with 11 employees. The company is working

Resolved Question:

We are a small company with 11 employees. The company is working on a very innovative project. One of our employee give us a notice with immediate effect. He states that he does not believes that the project will work therefore he does not want to work on it and give his name for it.
He has permanent contract since 16 June 2014 this year. The contract states that he must give one month notice. The company considers to sign an agreement with him to terminates contract immediately as the employee aggravates other members of team and tries to convince them that the project/research will not work. He has inappropriate attitude towards work.
The employee was recommended by a Recruitment Agency and the company paid over £10.000 to Agency for fee for finding him.
We need advise on the following:
Can we sign a mutual agreement of termination of his contract with immediate effect?
What consequences might be?
Will he be able to take us to Tribunal to claim damages?
Submitted: 3 years ago.
Category: Employment Law
Expert:  Ben Jones replied 3 years ago.
Ben Jones :

Hello, my name is ***** ***** it is my pleasure to assist you with your question today. Are you happy to let this employee go with immediate effect without any further liability and basically writing off the fee you paid?

Customer:

Hello, thank you very much for a quick response.

Customer:

The owner wishes to recover the Agency fee however he agrees for the employee to leave

Customer:

Could you please advise what course of action will be the best for the company?

Ben Jones :

Thanks, ***** ***** get my response ready please

Ben Jones :

The company is unlikely to recover the agency fee unless there was specific contractual clause allowing them to do so. They would have paid that fee regardless of the employee leaving the company, and would have still had to pay it even if the employee worked through their notice period, so this is a risk they would have taken on in any event.

However, if the employee wishes to leave without serving their notice period they would be acting in breach of contract and in that case the employer could pursue them for any damages incurred as a result. Whilst this would still not allow them to recover the original fee, they could pursue the employee for any subsequent losses they have suffered, for example fees they may incur in getting a replacement at short notice. This could include any further agency fees to get such a replacement although only the portion that they7 would have paid for getting a person in to replace him, not any fees they would have paid out in any event.

The company is free to let the employee leave without serving their notice period but they must consider what losses they wish to hold the employee responsible for if they do so. You could then agree something with him and get him to sign a document which would allow you to either recover this money from their final pay, or have them pay this amount voluntarily.

Customer:

Thank you

Customer:

Can employee take company to Tribunal if the company agrees to sign a mutual agreement?

Ben Jones :

No, there is nothing the employee can sue the company for in this case - they are the ones leaving and you do not owe them anything. You would still need to pay them for all wages due and you cannot take money from their pay unless they have specifically agreed for this to happen in writing.

Ben Jones :

These are the only potential claims they can make but you can cover yourself for these if you ensure that these steps are met

Customer:

The contract says that the employee must give one month notice. Until when the company must pay employee wages? Until the date of termination of contract or including a month notice which will not be served?

Ben Jones :

no you do not have to pay them for the time they have not worked if they have refused to work through their notice period, in that case you only pay them until their last day of work

Customer:

The agency contract gives six weeks probation period which passed already. Their contract does not specify what happens if employee will give sudden notice. Can we still negotiate refund of the fee on the basis that employee left without a good reason?

Ben Jones :

that would be down to negotiation between you and the agency - the contract does not allow for a refund so you will really be hoping for a goodwill gesture by them to get any of this fee back

Customer:

The company paid the fee but did not sign agreement with the Agency as we were negotiating terms and conditions. The current contract states:




If the candidate's appointment is terminated within 8 weeks of the commencement of his employment with the Client a rebate will be paid by Agency to the client of 12% of the fee charged by the agency for each full week the Candidate did not work during 8 week period. No rebate shall be payable if the candidates is made redundant or appointment is rescinded for no good reason, we will not notified the Agency in




The company is unlikely to recover the agency fee unless there was specific contractual clause allowing them to do so. They would have paid that fee regardless of the employee leaving the company, and would have still had to pay it even if the employee worked through their notice period, so this is a risk they would have taken on in any event.

However, if the employee wishes to leave without serving their notice period they would be acting in breach of contract and in that case the employer could pursue them for any damages incurred as a result. Whilst this would still not allow them to recover the original fee, they could pursue the employee for any subsequent losses they have suffered, for example fees they may incur in getting a replacement at short notice. This could include any further agency fees to get such a replacement although only the portion that they7 would have paid for getting a person in to replace him, not any fees they would have paid out in any event.

The company is free to let the employee leave without serving their notice period but they must consider what losses they wish to hold the employee responsible for if they do so. You could then agree something with him and get him to sign a document which would allow you to either recover this money from their final pay, or have them pay this amount voluntarily.






<div class="JA_chatMsgAuthor"Customersays:

9:08 AM



Thank you






9:09 AM



Can employee take company to Tribunal if the company agrees to sign a mutual agreement?






Ben Jones says:

9:11 AM



No, there is nothing the employee can sue the company for in this case - they are the ones leaving and you do not owe them anything. You would still need to pay them for all wages due and you cannot take money from their pay unless they have specifically agreed for this to happen in writing.






9:11 AM



These are the only potential claims they can make but you can cover yourself for these if you ensure that these steps are met




within 14 days of termination of contract. My question is , based on this that we did not sign any document with the Agency and employee is still in 8 probation period set by the Agency, can we recover the fee?









Customer:

I am sorry some text is missing

Ben Jones :

Not automatically I'm afraid, especially as there was no contract with the agency - they have done what was required of them - they have supplied you with a person to work and that is the end of their liability, subject to any contractual provisions, which do not exist

Customer:

I am writing again. The company did not sign contract. The Agency contract says however that in the event of termination of contract within 8 weeks of the commencement of candidates employment a rebate will be paid to my company at the rate of 12% of the fee charged for each full week the candidate did not work during 8 week period. No rebate will be payable if the candidate is made redundant or appointment is rescinded for no good reason. They do not specify what id candidatesgives notice for not a good reason. Can we recover the fee?

Ben Jones :

so the candidate has worked there for around 6 weeks, which means the best you can expect is a refund of around 24% of the fee as this amounts to the 2 weeks he did not work in the 8 week period specified in the contract

Customer:

last question: we can contract a researcher immediately who lives abroad outside Europe to provide services for us in a form of research etc. My question is what contract we can give him (as an contractor) which employment law will apply in this situation and what we should consider?




Ben Jones :

that is an entirely separate query I am afraid, you will have to post that as a separate question for further advice

Customer:

Thank you very much for your help

Ben Jones :

you are most welcome, all the best

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