Contract Law

[QUOTE]Originally posted by Mick Parry:
Frazer

I cannot advise you until I know two things.

1. What date does your contract expire.

2. Is there a termination clause, it is usually one month.

Come back once you have this information.

Also on the restrictions, I need to know of any caveats. In gerneral, ig they terminate your contract, they also sever any restrictions. Also in practice they would not bother preventing you from working elsewhere despite what it says in the contract.



Regards

Mick

Mick,

The contract doesn't expire as such. It "remains in force until it is terminated by not less than three months prior written notice by either party to the other"

The restrictions seek to stop me "entering into any direct relationship in competition with the Company....for six months after the termination of the agreement"

Thanks for showing an interest in this. I will be financially buggered by this change if I can't mitigate it in some way.


Fraser

Not at all nice Fraser & I agree with Mick. From what you've told us it sounds like you are on a continuing contract & have a three month notice clause.

IME it's very easy to jump out of the frying pan & into the fire in these situations.
I used to be a staff rep' in a T.U. & my 1st piece of advice to similarly affect peps was ask yourself what you ultimately want.

In principle it is unlikely your employer will enforce the restrictive terms for you to seek similar work, but that depends on your job & industry so I'm sure you have a good idea of the likelihood. Other things to consider are if you threatened to leave how much trouble would your employer have replacing you (IOW is it worth negotiating?), & what likelihood is there for you to find similar or better employment elsewhere?

It sounds like your employer could well be in breach of contract by failing to give you three months notice. I have lost count of the times my ex management announced significant changes to terms of employment which were duly passed from the branch to our legal eagles for opinion, only to find the management were breaching our contract of employment &/or employment law.

I guess you aren't in a Trade Union?
If not I recommend Thompsons Solicitors who specialise in employment law & are very good IME. There's lots of info' on their website & they have an 0800 helpline too.

Fraser,

The devil is in the detail when it comes to such matters. If there is no clause in the contract that allows them to reduce (vary) your remuneration then it would suggest that they are in breach of contract. If that were the case then it is less likely that they would pursue you for entering similar employment. Indeed you could even sue them for breach of contract.
However, without reviewing the contract in it's entirity it's difficult to say.

Willy.

Dunno about void, but this looks like a substantial change and so the contract could be voidable at your option. It MAY be possible to look at constructive dismissal as well, depending on length of service?

M

This has generated a bit more interest than I was expecting so here is some detail.

I work as a 'portfolio' GP - the 3 components of work being private medicals; GP locum work and medicolegal work. The GP locum market has died nationally - this was anticipated and I shored up against it by paying off my mortgage.
The private medicals survive but don't pay much.

It is the medicolegal work which has had its pay-rate cut. I am paid on a cost-per-case basis. I am sure the firm doesn't wish to be rid of me as the simplest means to this would be to give me 3 months' notice and no work over that period.

My problem is that I can't take the 2 financial hits of no locum income and reduced medicolegal income.

The medicolegal business has 4 tiers: (1) solicitors who operate through (2) agencies which operate through (3) 'practices' which engage (4) GPs to do the clinical work. Money only comes into the scheme at tier 1 and I think there is not enough of it now to fuel all 4 tiers. My thought was to offer my services directly to tier 2.

My original question then was whether the pay-cut voids my contract and allows me to approach tier 2 - an option plainly not allowed by a contract still in force. I am gambling on tier 2 wanting to employ me but am not seeking advice on the gamble, nor really whether the contract is void, just when the contract would legally be deemed to have become void. The options would be on the day the pay cut comes into force (July 1) or when I am notified of the change (May 31). The latter creates a window in which the restrictive elements of the contract are no longer in force and so I could approach tier 2 with no legal comeback, though tier 3 could of course find out about my approaches and cut me loose. I think this is a chance I have to take.


Fraser

quote:

an option plainly not allowed by a contract still in force.

If your employer is in breach of contract is the contract still in force? I'm not 100% sure but it seems highly unlikely if they are in breach. I think you need to notify them you consider they are IBOC & IMHO you should seek legal advice.

How likely is it that your current employer would find out you are 'looking around', esp' if you explain the situation to the agency manager?

I suspect that the courts would look unfavourably on the "restrictive" aspects of this contract, especially if your employeer was in breach of other terms of the contract. I have a suspicion that there is some precedence in this area where such restrictive clauses were deemed to be illegal (though possibly only is certain circumstances). Would suggest that you seek appropriate legal advice.

Willy.

Fraser,
Thompsons solicitors are mentioned above. Well worth contacting. Experts in employment law. If what you are hoping for is possible they will tell you quickly.
Good luck.

Hi Fraser. A blunt question; why are your employers reducing the level of your salary?

As you rightly point out it seems unlikely they're using it as a ploy to get rid of you. Is it because they are not performing well financially, or have they issues with your personal performance? If it's the former then they will almost certainly be able to reduce your salary for "Economic, Technical or Organisational" reasons, but they MUST consult with you before doing so, and they MUST have a robust case. No good them just saying "We can't afford to pay you so much"

If it's around performance issues, again they MUST consult with you and give you every opportunity to improve your performance.

If they don't follow proper procedure then, should you decide to resign as a consequence of the salary reduction, you will have an excellent case for claiming constructive dismissal.

Good luck!

tonym,

The claimed problem is decreased money flowing into the business - they could be lying of course. I don't think there is any question about my performance.

My original question, still unanswered, was whether the breach of contract occurs immediately the pay cut was announced (May 31) or only once the cut is effected (Jun 1).

Regards,

Fraser

Fraser

Normally the breach would have been committed on May 31 but you must be seen to have done something to mitigate the breach. In other words you should show evidence (email or letter) that you have brought this breach to their attention to prevent them from claiming error.

Regards

Mick

Mick,

Thanks for your response. You sound 'informed', so double thanks.

If I point out the error, they can repair it!

Why is 'error' a get-out? If they are incompetent - and to fail in their line of business takes some doing - why am I under obligation to point out their error? I wish to exploit it! I need this window free of the restrictions of the original contract to seek another contractor for my services.

Fraser

I take it from your last paragraph that they have failed to consult with you over reducing your salary.

I think you'll find all the folks who've taken the trouble to reply to your original posting are "informed" also.

Frazer

I draft long winded contracts for a living and hence can easily offer advice. However it is risky advice without looking at your contract and that is a serious problem.

I can be contacted direct via PFM and I can talk it over over on the phone.

Asking for and dishing out advice "blind" is always risky.

Regards

Mick

frazer,

Contact Mick. If you and he can't sort it out, you will know that spending money on a solicitor will be money well spent.

cheers

Don

Not an attempt to bump the thread, just a thank you to all contributors.

I have spent the time researching flying solo and find that nearly all the work derives from 5 or 6 sources in any given year. I have tracked down the appropriate contacts for each and so off I go.

Thanks especially for your offer, Mick. I have looked at what I could gain if the interpretation of the contract were maximally in my favour and have determined that it is not worth going to war over the contract/compensation. Great offer, though.

Fraser