invited to disaplanary when on garden leave! urgent help needed

Welshwoofs

mikey72 wrote: »

Usually you have the right to go for interviews after you have been notified you are to be made redundant though, and maybe it could still be classed as an interview. Not sure how the competitor rule is applied then though, as you are not leaving to go to a competitor, your existing company is terminating your employment.

I don't see how acting as a representative of a company and contacting a potential customer of that company to try and win a contract could possibly come under the description of 'an interview'. That's really more of a work trial.

Kimitatsu

The Op stated that he was told he could work his notice or take garden leave, they were not offering to pay him in lieu of notice - if they had been then he would have been free to take up another job.

Have to agree about the interview process - if someone asked me to tout for business on their behalf I would be very wary. If you had secured the business and they still had not offered you a job then you would have been taken for a ride.

mikey72

He's not been given notice though, if he is to be made redundant. Hopefully it's bad phrasing by the op, but if he is at risk, the usual option we had was to come into work, or to spend the period at home if it's offered, right up to the final interview and redundancy. Either way interviews could be taken, so what's wrong with a "work trial" interview?

Anihilator

mikey72 wrote: »

He's not been given notice though, if he is to be made redundant. Hopefully it's bad phrasing by the op, but if he is at risk, the usual option we had was to come into work, or to spend the period at home if it's offered, right up to the final interview and redundancy. Either way interviews could be taken, so what's wrong with a "work trial" interview?

The fact it was tapping up business - probably contrary to his contract - and secondly it will be very hard to prove this was an interview and not the OP breaching his contract whilst on gardening leave.

Tbh I think he best hope that the existing employer gets the contract or they will probably dismiss him

bendix

Anihilator wrote: »

The fact it was tapping up business - probably contrary to his contract - and secondly it will be very hard to prove this was an interview and not the OP breaching his contract whilst on gardening leave.

Tbh I think he best hope that the existing employer gets the contract or they will probably dismiss him

I think people need to wake up and smell the roses. In some ways, this recession has been an HR manager's best friend. It has given companies the chance they have been waiting for to get rid of staff who no longer contribute much to the business - harsh but true.

I think we need to be brutally frank. The OP for a variety of reasons hasn't contributed to the company for almost a year, by their own admission. The downturn is a perfect excuse to offload such personnel resources - it's a harsh business reality.

That the OP has walked into a disciplinary hearing with eyes wide open by seeming to be working for someone else in breach of a contract, is just icing on the cake for the employer. It is likely to mean they wont need to provide a severance packet.

The OP needs to learn a hard lesson from this.

mikey72

Gardening leave is not applicable normally to redundancy, and should be in the contract of employment anyway to be strictly enforcable.
The op needs decent advice, not a public forum full of bar stool lawyers, maybe CAB, or ACAS, or if he has free legal cover on his house insurance. Even if he is dismissed a tribunal later will cost nothing.

Kimitatsu

I was then invited back to see the HR manager this time as the directort was to busy to see me and was informed that I was indeed to be made redudant and was told I could work my notice or take garden leave. Well I had already arranged to help out the Coventry branch manager for the next few days as he was under staffed so I keeped my promise and helped him until that friday and them requested to take the rest as garden leave.

The OP is employed by his current company until the last day of his contract or the notice period for which he is paid. He is on call to that company under his employment contract until the last day that they pay him and as such was in breach of contract by "working" for another company.

The employer offered him the choice of working his notice or taking garden leave - that was up to the employer. They did at no point indicate they would pay him in lieu of notice and were terminating his contract early.

Redundancy is a termination of contract because there is no longer a position available under the company restructure, therefore whilst his redundancy notice is being paid he is still under contract even though they do not have a position for him.

OP, sorry to be the bearer of bad news but that is the nub of the matter. You need to get legal advice to sort out the "interview" issue more than anything else.

speedbird1973

Kimitatsu wrote: »

The OP is employed by his current company until the last day of his contract or the notice period for which he is paid. He is on call to that company under his employment contract until the last day that they pay him and as such was in breach of contract by "working" for another company.

The employer offered him the choice of working his notice or taking garden leave - that was up to the employer. They did at no point indicate they would pay him in lieu of notice and were terminating his contract early.

Redundancy is a termination of contract because there is no longer a position available under the company restructure, therefore whilst his redundancy notice is being paid he is still under contract even though they do not have a position for him.

OP, sorry to be the bearer of bad news but that is the nub of the matter. You need to get legal advice to sort out the "interview" issue more than anything else.

However if you are being made redundant then the employer MUST allow you time to go to interviews, even during office hours.

Likewise clauses in contracts that say "thou shalt not work for a competitor or client" aren't worth the paper they're written on.

Kimitatsu

speedbird1973 wrote: »

However if you are being made redundant then the employer MUST allow you time to go to interviews, even during office hours.

Likewise clauses in contracts that say "thou shalt not work for a competitor or client" aren't worth the paper they're written on.

But that was what I said - the issue is the "interview". Whilst under contract to one company he should not be working for another one, and his current employer obviously views this as working for someone else!

I would not expect at an interview to have to tout for business on anyone elses behalf, regardless of whether it came to fruition or not.

Hence he needs to get advice on the "interview" rather than anything else - in my view the scenario he has given us (bearing in mind its only one side of the story) indicates a possible breach of contract.

Anihilator

I think the crux of it is this is an issue if both parties decide to fight will ultimately be decided by a court or tribunial.

The OP claims it was an interview, the employer that they started a new position early. Ultimately if both stick by this someone will decide on the balance of probabilities and imo the OP will lose. It is not normal interview technique to be given open access to live leads and forced to pursue them on your own. Even a work trial wouldnt do this.

Whether paid or not I would be very surprised if the OP isnt deemed to be in breach of contract for what he did and hence dismissed.

The OP should hope his employer are forgiving and havent lost revenue because of him as if they have they wont be very open to letting him off and retaining his redundancy package.

The bit about clauses re competition is a bit of a red herring too. Whilst yes most clauses are uneforcable once someone leaves as they restrict trade etc whilst the OP is still officially employed which he is here breach of them is seen to be a discliplinary act and the law wont stop these clauses being enforced whilst someone is still under contract