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Ben Jones
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I run a small educational business delivering activities in

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I run a small educational business delivering activities in schools. We have just 5 people delivering the workshops. The presenters are semi autonomous, in that we provided them with work and supply the equipment which they replace if damaged and we reimburse them for. The presenters are treated as sole traders as we do not operate a PAYE scheme. We do however have an employment contract that is either sent or given to each presenter add they join. It is not always signed by both parties as it is none negotiable.
On Friday January 30th one of our presenters emails in her notice saying she will be leaving on March 1st. Our contact of employment clearly states we require notice of a school term, due to the nature of the business. Representing 20% of our workforce this presenter has been with us for 4 1/2 years so is very important as we already have work lined up into June for her.
Can I realistically stop her leaving on March 1st?
Is her email on Friday evidence of intent to breach the contract of employment and if so can I with hold payment of her invoice for the workshops she delivered in January in lieu of serving full notice?
I am happy to reach a compromise and let her leave at the end of March rather than May 18th as it should be, but she does not appear to be willing to enter into dialogue about it, believing that she didn't sign anything so she is not obliged to give such notice.
Regards
Martin Jennings
Creative Director
Architecture Workshops
Cambridge
www.architectureworkshops.org
run a small educational business delivering activities in schools. We have just 5 people delivering the workshops. The presenters are semi autonomous, in that we provided them with work and supply the equipment which they replace if damaged and we reimburse them for. The presenters are treated as sole traders as we do not operate a PAYE scheme. We do however have an employment contract that is either sent or given to each presenter add they join. It is not always signed by both parties as it is none negotiable.
On Friday January 30th one of our presenters emails in her notice saying she will be leaving on March 1st. Our contact of employment clearly states we require notice of a school term, due to the nature of the business. Representing 20% of our workforce this presenter has been with us for 4 1/2 years so is very important as we already have work lined up into June for her.
I have a couple of questions.
Can I realistically stop her leaving on March 1st
Is her email on Friday evidence of intent to breach the contract of employment and if so can I with hold payment of her invoice for the workshops she delivered in January in lieu of serving full notice?
I am happy to reach a compromise and let her leave at the end of March rather than May 18th as it should be, but she does not appear to be willing to enter into dialogue about it, believing that she didn't sign anything so she is not obliged to give such notice.
Submitted: 2 years ago.
Category: Law
Expert:  Ben Jones replied 2 years ago.
Ben Jones : Hello, my name is ***** ***** it is my pleasure to assist you with your question today. Does the contract state you can withhold payment if needed?
Customer:

no

Ben Jones :

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

Customer:

Yes it is pretty much as I had presumed, thanks

Ben Jones :

you are welcome, all the best

Ben Jones, UK Lawyer
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