The Employer/Employee Relationship

2577 Words11 Pages
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... ... middle of paper ... ...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.
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