How difficult (or easy) is it for an employer to prevent an employee working for others (or themselves), both during the employment and after it has ended? Refer to relevant cases and legislation.
This essay will look at the definition of what an employer and employee are according to legislation. It will then discuss whether or not an employer can prevent an employee from working for others (or themselves), after the employment has ended. Analysis will be done on whether restraint of trade clauses are legal and if so the restrictions they carry for both employer and employee. This essay will also look at how and if a restraint of trade clause can be changed so that they can be valid and the employer can enforce them. This essay will look at whether employers can stop employees from working for others and themselves during employment, this will be done by looking at and discussing garden clauses. Critique will be done on both restraint of trade clauses and garden leave clauses. The essay will conclude with how difficult or easy it is for an employer to restrict their employee’s employment.
It is important to know what an employer and employee are according to legislation as both have several rights. An employee is ‘. . . an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment.’ An employer is "... in relation to an employee or a worker, means the person by whom the employee or worker is (or, where the employment has ceased, was) employed". This is crucial to whether or not an employer can stop an employee from working with others or themselves after and during employment as, without a contract the employee can leave their current job and work fo...
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...ems to be normal practice now for employers. As long as both parties agree and it does not go against public interest it would seem that restraints can be valid. The courts do not like getting involved in changing the clause to make it valid and therefore enforceable. There have been many tests to make sure that employers make the clauses reasonable and therefore would not have to go to court.
Another way that employers stop employees working for others is garden leave. Employers like to add a garden clause into the employee’s contract as it cannot fail by time, location or employees activities. Courts tend to order more favourably towards garden clauses as the courts respect that businesses and employers need to be protected.
Both restraint of trade clauses and garden leave make it easy for employers to stop employees working for others or themselves.
Sloane. A. A., Witney, F. (2010). LABOR RELATIONS (13th editions). Prentice Hall. Upper Saddle River, NJ
It will strictly follow the offshore labour laws. This was why Andrews decided to cut ties with the previous supplier. The risk of being associated with a supplier that violated labour laws would put Andrews under constant threat of legal problems and negative press. This condition would eliminate that risk to a great extent.
[12] CURRAN, Simon, ‘When is a duck not a duck? The employee/independent contractor dichotomy’, Bulletin (Law Society of S.A) 26 (9) October 200etin (Law Society of S.A) 26 (9) October 2004: 23-26
Mortimer, M., 2006. Employment Law and Labor Law. Employlaw.com retrieved December 11, 2008 from: http://www.employlaw.com/hoffa.htm
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Bennett-Alexander, D.; Hartman, L (2012) Employment Law for Business 7th Edition. New York, NY. McGraw-Hill Companies Inc.
long as they meet the act's criteria. The employee is also protected from employer retaliation.
United States of America. National Employment Law Project. National Employment Law Project. N.p., Jan. 2011. Web. 18 May 2014.
Employment Judge Ryan provides that “if a single employer were able to set up a different negotiating arrangement and rely upon that fact to maintain there were not common terms it creates a path to subvert the legislation” . Therefore, this case emphasises a potential issue for private employers as a result of the employment tribunal approach of whether terms and conditions have a common source, which may have a
The relationship between employer and employees plays a pivotal role in the performance of the organization. Employers and employees have certain responsibilities towards each other which facilitate a fair and productive workplace. Positive work relationships create a cooperative climate with effort towards the same goals. Conflict, on the other hand, is likely to divert attention away from organizational performance.
Describe and explain how this factor can potentially have a positive influence on workplace relationships
Employment relations refer to the relationship between the employer and the employee. Employment relations are governed by the provisions of the employment contract and/or collective agreement where applicable, common law principles and legislative provisions governing specific situations. Many factors in the external environment have an effect on the employment relations within an organization, which they need to monitor and possibly adapt to the necessary changes. The external environmental factors that would influence employment relations are political, economic, social, technological, legal and environmental.
Suffield, L., & Templer A. (2012). Labour Relations, PH Series in Human Resources Management, 3rd Edition
There are many different approaches and theories regarding industrial relations nowadays. In order to mount an opinion on which is the ‘best’ or most appropriate theory of industrial relations, each theory will have to be analyzed. The three most prevalent theories of industrial relations which exist are The Unitarist theory, The Pluralist theory and The Marxist theory. Each offers a particular perception of workplace relations and will therefore interpret such events as workplace conflict, the role of trade unions and job regulation very differently. I will examine each of these theories in turn and then formulate my own opinion regarding which is the ‘best’ or most appropriate theory.
The role of the government on industrial relations is very important as it sets the legal framework that industrial relations operates in. Appropriate industrial relations legislation should recognize the requirements of both employers and employee’s. Both the employee and the employer want to profit from each other but are also reliant on each other. This means that the equal bargaining power of employers and workers must be recognized (Peetz, David. 2006). Appropriate industrial relations laws should address any imbalance of power and give both groups an equal degree of control. Appropriate industrial relations should not only allow a mixture of both collective and individual bargaining but also facilitate employee participation in day to day workplace decisions. After all it’s the structure and framework of the employment relationship, which is governed by legislation that leads to good Industrial Relations.