Hi, sorry I was offline by the time you had replied. If the employee wishes to leave earlier than the date they would have been allowed to under their contract, they would be acting in breach of that contract. However, it would be almost impossible to actually prevent them from leaving early, in a sense that you cannot force them to continue working for you until the expiry of their notice period. Instead, employers would often seek to recover damages for losses incurred as a result of the employee’s breach. This could be loss of business because you have had to cancel the work she was due to undertake, or the additional costs of getting a replacement to undertake that work. Whatever you try and claim it has to be a genuine pre-estimate of the losses you are likely to suffer r be the actual costs you have already incurred.
Whilst the employee may have indicated she is not willing to work through her contractual notice period, this is not yet a breach of contract – only once she has actually breached its terms can you accuse her of that. Also you cannot withhold payment for work she has already undertaken because at that time she had not breached the contract and would be legally due what she had earned. That is unless there was a specific contractual clause allowing you to do so, which does not appear to be the case here.
Her argument that she has not signed anything ill not necessarily be valid either, because if she knew about the contract but did not dispute its contents and started to work under its other terms, it would be implied that she had accepted it. It is not necessary to have a signature on a contract for it to be valid – if the parties’ actions were such that it appeared they were agreeable to the terms then it can still be valid and legally binding. So if she had accepted its other terms by working under them all that time and never challenged the terms she did not agree with, then it would likely be assumed that the whole contract had been accepted.
You could try and reach a compromise as you have already done but f that appears not to be working you could threaten her more formally with breach of an implied contract and make it clear that you will pursue her for any losses you have or may incur as a result.
Hope this clarifies your position? If you could please let me know that would be great, thank you
Yes it is pretty much as I had presumed, thanks
you are welcome, all the best