Hi
I have a member of support staff who is contracted to work 41 weeks per year who has resigned with effect from 31st August 2017. However, she wants to start her new job on 25th July - the Monday after school finishes.
This has raised a couple of issues:
1. As the employee is not contracted to work, nor is paid, for all of the school holiday period - are we entitled to prevent her from working for another employer? My understanding is that unless it is written in a contract, you cannot prevent an employee working for another employer during their annual leave so surely this must be the same principle for staff who are not contracted to work (or paid) over the school holidays?
2.My boss's view is that in this instance, the employee is putting herself in automatic breach of her contract with us if she starts on, say 25thJuly with her new employer, unless she has formal agreement from us that she can start her new job during a notice period (there is nothing in our contract which states this). She would not be able to fulfil all the clauses of her contract with us (the specific clause states "The Trust reserves the right to vary your daily hours of work temporarily or permanently in accordance with the times of the school day and the circumstances applying to the school. In such circumstances one month’s notice will be given.You may be required to work additional hours outside of your normal working week, as and when required by the Trust. Reasonable notice will be given").
The employee will probably bring her resignation date forward now anyway as she wants her P45 to give to her new employer to avoid paying emergency tax and actually once we did the reconciliation of pay owing there is no difference in pay between resigning wef July or August.
However taking this stance will have wider implications within our trust. We have quite a few TA's who resign at the end of an academic year and due to the way their pay is calculated will put 31st August as their leaving date, and has historically been the case from being employed by the Local Authority. So we would need to have some clause in their contract which prevents them from starting a new job until September.
Furthermore my boss has now decided that staff need to get express permission
-to be employed by another employer whilst they are employed by us and
- to work for another employer whilst on annual leave
He will probably want to stop employees taking summer jobs next - even though staff are not contracted to work over the summer or get paid for it!
I would be interested to hear from anyone who has come across this issue and/or is able to clarify our legal position from a contractual point of view?
Many thanks & Regards
Elaine
