WHERE CAN I GET HELP WITH BREACH OF CONTRACT ISSUES?
Hi, I'm Samantha Atanda, a highly experienced Business and Human Resources executive who has operated at board level across both public and private sector organisations over many years. I am the founder and executive director at Acorn Resource Services Limited (www.acornresource.co.uk) t/a ARS Group – ‘people solutions’ provider.
I am a Chartered Fellow of the Chartered Institute of Personnel and Development, a member of the British Psychological Society and hold a Master Degree in Employment Law. I am also a qualified and experienced facilitator, project manager, trainer, coach and mentor. I live and have an office in Uxbridge just ten minutes from Gerrards Cross.
The last article I wrote was about ‘your employment contract - what you need to know’. This article continues the theme and it is about understanding how the employment contract can be breached by either you or your employer and what actions can be taken by either party to remedy the breach.
What is breach of contract?
A breach of contract occurs where a party to a contract fails to perform, precisely and exactly, his/her obligations under the contract.
In the employment situation, any disregard of one or more of the terms in an employment contract by either an employee or employer is typically called breach of contract. For example, if an employee does not work the agreed number of hours per week or if an employer does not pay the agreed monthly salary, this is breach of contract.
Breach of Contract by the Employer
The employer sometimes unknowingly, and in response to addressing some employee conduct issues, breaches the contract. Common possible breaches by an employer include:
• docking your pay for being persistently late – the employer has a right not to pay you for hours you have not worked. However, imposing extra penalties by docking extra pay on top of this, particularly if there's nothing in your contract that allows your employer to do so will amount to a breach.
• Not paying your salary at the agreed time will often be a breach of contract. If you can prove you have suffered a financial loss (for example, having to pay overdraft fees), you can claim this back as damages.
• There is a breach if the employer changes the terms of the contract without agreeing it with you beforehand unless your original contract has a clause that allows the employer to make such changes.
• Wrongful dismissal- This is a breach of contract in the way you were dismissed. For example, without being given proper notice or without following the procedures in your contract, particularly if your policies and procedures are part of your terms and conditions of employment.
• If the employer withdraws a job offer after it has been accepted - The contract is made as soon as you accept the offer, and both sides are bound by the terms until the contract is terminated.
What do you do if there is a breach of contract by your employer?
If you think there's been a breach of contract;
• first check the terms of your contract to make sure.
• If there has been a breach, you should try to resolve the problem within your organisation by raising your concern with your line manager in the first instance (and/or formally as a grievance using your company policy).
• If the internal process does not work, you could try using a mediation service to resolve the dispute if your employer agrees to go down that line. For example you could try mediation through independent mediation experts such as the ARS Group or through Acas (the Advisory, Conciliation and Arbitration Service).
• If you can't sort out the problem with your employer, you could decide to take legal action. This could be at an Employment Tribunal or Civil Court. If you are a member of a trade union, it would be good to speak with them before taking any legal action, as some unions provide a legal advice service for their members. Otherwise seek professional advice before you take this step.
• If you do decide to take legal action you need to be clear about what you want to achieve and how much it will cost. Remember you will only get compensation if you can prove real financial loss, for example, if your employer doesn’t pay your holiday pay – there is no compensation for hurt feelings.
Breach of Contract by Employee.
As an employee you can also be in breach of the contract agreement, and the employer will have the right to seek compensation (damages) from you in a court of law as a result of the breach.
What your employer can do if there is a breach of contract by employee.
If you breach your contract, your employer should try to settle the matter with you informally in the first instance or use the company’s internal policies to resolve the matter.
If your employer suffers a financial loss because of your breach, they could make a complaint for damages against you. Damages are only awarded for financial loss. For example, if you don't give enough notice your employer could claim for damages for the extra cost of hiring temporary staff to do your work, or for lost revenue, but you would still have the right to any wages you earned before you left, plus pay for untaken statutory holiday unless there is a payment claim clause written in your contract.
Your employer would normally use a county court for a breach of contract claim. The only way your employer would be able to make an application to an Employment Tribunal is in response to a breach of contract claim that you have made.
The most common breaches of contract by an employee include;
• when you quit your work suddenly without giving proper notice.
• when you don’t work your notice period as agreed.
• when the essential requirements of your job upon which you were employed changes and negatively impacts you doing the job (i.e. losing your professional licence or being suspended by your professional body) and you failed to inform your employer about the situation.
• you breach the confidentiality clause within the contract.
• Failing to follow the company’s policies and procedures as agreed in the contract.
• Turning down a job offer after it has been accepted.
• when you go to work for a competitor when your contract doesn't allow it.
Where can I find out more?
To find out more about breach of contract you can call me, Sam Atanda on 01895 876222 or email us at enquiry@acornresource.co.uk or please get in touch with us if you are a business owner and you would like us to assist you or your organisation with this or any other employment issue. We are here to help you in any way you require.
