Post-Termination Restrictions: Supreme Court to the Rescue
18th July, 2019
Céline Winham considers recent Supreme Court case which clarifies enforcement of post-termination restrictions in contracts of employment
By Andrew Knorpel on 17th November 2016
We all know that the Xmas party can give rise to a wide variety of unwelcome employee issues. But unwanted Xmas presents needn’t wait for the aftermath of parties as employers taken to employment tribunals over the last few years have found out.
It’s been recently reported that Bramble Foods Ltd successfully defended an unfair dismissal claim brought by an employee who not only refused to work any Saturday morning overtime in the Xmas run-up period, but then kicked up such a fuss about it that she created discontent amongst her colleagues. The company had the contractual right to require staff to work overtime according to the needs of the business; a common clause in most contracts. It asked staff to agree to work between four and eight Saturdays and all except Mrs Edwards signed up. The company tried to persuade her to join her colleagues so that the workload could be split fairly amongst them, but she wouldn’t budge. Apparently, she then mocked her colleagues and told them that she would be having a lie-in on a Saturday morning when they had agreed to work extra hours.
I understand that the company became concerned that Mrs Edwards’ behaviour was causing great upset and that other staff might withdraw their agreement to work overtime. As a result, the company dismissed her and the Tribunal found the dismissal to be fair. They found that the company’s request for her to work overtime was reasonable and Mrs Edwards had no legitimate excuse for refusing their request. When coupled with her subsequent behaviour, it is reported that the Tribunal found her dismissal to be within the range of reasonable responses.
In contrast, a few years ago, Mrs Stott was found to have been unfairly dismissed by Next Retail Ltd when she didn’t turn up for work on Xmas Eve and was summarily dismissed for gross misconduct. She was apparently a long-serving “exemplary” employee who had arranged to attend her husband’s Xmas party when she thought that she wouldn’t have to work Xmas Eve. She informed her manager that this was the case when it was then announced that all store staff would be required to work that day. She was told that she would face “disciplinary action” if she did not come into work and she took that risk.
In this case, the Tribunal held that Mrs Stott wasn’t specifically told that she might be dismissed if she didn’t work Xmas Eve (unlike a colleague who was warned, but was then given only a final written warning when she didn’t turn up) and that dismissal was not therefore within the range of reasonable responses. However, her compensation was reduced by 30% on the basis that Mrs Stott had contributed to her dismissal by, as the company put it, “simply not attending work because she wanted to go to a party instead”.
And the moral of these stories is – if you want your staff to work extra hours in the run-up to Xmas, let them know as soon as possible. But remember, if they object for reasons associated with childcare or elderly care responsibilities, you would need to justify your request to avoid an allegation of indirect sex or age discrimination.
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