HR query about starting a new job when still under contract.

[ABCat1]

Hi,

Some advice needed as this seems quite a grey area.

An employee handed in their notice of 4 weeks as they had a job to go to.

They were owed some holiday which they choose to take from the 4 weeks rather than being paid in cash. We agreed a leaving date 4 weeks from the notice date made up of 2 weeks holiday and 2 weeks working.
The employee was also asked to be available to any handover during the holiday period.

We have just found out that the employee started work for the new company after two weeks working but the beginning of the 2 weeks holiday, while they were contracted to our company.

Is the employee in breach of the contract?
Did they terminate the contract by taking another full time role while being employed by our company?
Does this mean we do not have to pay the for the 2 weeks for breach of contract and they didnt take the holiday at the time as agreed?

We do have a policy that you cannot work for anyone else unless you get prior agreement.

and we would have given the employee a different end date and paid holiday in cash had they been honest with their intentions.

thanks in advance for your help

 

[sjbeale]

You still need to pay them for the 2 weeks they worked + their 2 weeks holiday pay otherwise you will have breached the contract.

 

[ABCat1]

I guess what I was trying to establish the holiday entitlement is based on working for us say 1st jan to 31st May but the employee went to another company on 20th May then surely they have less holiday entitlement?

 

[lesliedocherty]

just pay it and move on, you'll never win it

 

[Employment Law Clinic]

I agree with Leslie.

If you really wanted to, you could withhold any holiday pay for the last two weeks "employment", but if they protest, it would be easier to pay than contest any claim - albeit technically you may have a case.



Karl Limpert