Suing an Employee for Damages

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Spinal

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I'm back... sort of.

Have a question based on a situation that someone I know if going through. (It's not me - I left the UK 6-7 months ago (following the whole brexit thing) and am happily resettled. It brought up a (pub) debate, and after the usual googling and turning up blank, I pose the question to a wider and more knowledgeable audience.

Imagine someone has resigned from their job, gotten a new job offer - but wants to negotiate a shorter notice period. For the purpose of this though process, let's leave aside work ethics, professionalism, personal pride in finishing a job and whatnot. Let's assume the employee wants out at all costs, and is willing to burn bridges.

The employer would have trouble replacing said person in the shorter notice period, so state that the employee has xx months of notice and need to serve said period.

Now, there's the fairly established case that an employer can sue the employee if they breach their notice period and cause financial damage to the employer. Hard to prove in most cases, and unlikely, but possible. That's not what the question is about though.

What I'm trying to figure out is, what happens if the employee turns up and does nothing. Say they browse mbclub all day, sour client relationships, and generally under-perform. How does an employer mitigate this risk? Can the employer claim back damages from the employee?

From my perspective, just the risk of this happening, would want to make me get the employee out the door asap. Then again, I can see how getting someone in at short notice could be expensive enough to warrant trying to claim back some of the cost... but surely losing a client would be worse?

M.
 
Always have deputies who can perform others functions; personally assist the bridge burners into their car.

Where did you end up?
 
1. On a general note, employment law is geared more towards protecting the employee from the employer, than the other way around (though in principle it should protect both). The assumption is that the employee is the more vulnerable here, while the employer has more resources and is more resilient thus needs less protection.

2. I think there's not much the employer can do in these circumstances, to be honest... immediate dismissal won't help because it's exactly what the employee wants anyway. I suppose the employer could eventually not pay the employee for the period he was idle, but then the employer will be exposed to being taken to a tribunal over this. Even giving no referrences is a legal minefield for the employer, let alone giving bad ones.

3. To be honest I always thought that in practical terms the employer has no real protection against employees that decide to quit without notice. As you pointed-out, even if the employer does sue the employee, proving the financial damages can be very difficult. Just take it on the chin. The employer will usually have the broader shoulders. It's just how it....
 
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Always have deputies who can perform others functions; personally assist the bridge burners into their car.

Where did you end up?
Switzerland :) My idea is that I can always come back if I want/need (kept my house and am a subject of HMtQ), but in the meantime I can watch from a distance and finally learn to ski properly!

As for the deputies, yes, in retrospect that is good practice... but in reality very difficult to implement in a service industry where you try to keep margins low... (also, hindsight, 20/20, etc :p )

3. To be honest I always thought that in practical terms the employer has no real protection against employees that decide to quit without notice. As you pointed-out, even if the employer does sue the employee, proving the financial damages can be very difficult. Just take it on the chin. The employer will usually have the broader shoulders. It's just how it....
That point though goes back to the "leaving without completing the notice period", rather than turning up to work and doing nothing. i.e. not leaving, completing their notice period... but actively under-performing.
 
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Nice choice!

As MJ said there is no solution now, only solutions that can be planned for in the future. If you have no deputies then have a standby in case of this and/or stay very close to people who make you venerable, keep your friends close and your enemies or potential enemies much closer.
Can you explain to your client/s the situation and ask for their understanding while you ring through the changes...?

Can you cut a deal with an alternative service provider to service your client without the obvious loss of customer risk...?
 
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I know a joke thats in the same lines as this . And for making the employer work his notice , he now has three tons of sea side rock with a very nasty word going through it. The moral of this tale is just let time go by till he is out the door ., And for the employee and his ethics , he is not worth taking on
 
I had a former manager in a similar situation. - He got a new job, and wanted to start that ASAP so requested a shorter notice period.

It came to a head when they hadn't hired a replacement and he was starting the new job on Monday. Ultimately all they can do is pay him until the date he leaves; they can't legally withhold pay (unless it's pay in-advance), they can't refuse to pay his entitlements (although leave etc would be pro-rata). - Any other outcome will result in an employment tribunal ruling in his favour, and suing him may have the same result (and do nothing for the morale of the staff who are still there).

Much better to not antagonise the employee who's leaving and work with them to get a replacement as quickly as possible; maybe you can split the difference so they don't leave after 30 days, but they don't stay for 60?
 
I had a former manager in a similar situation. - He got a new job, and wanted to start that ASAP so requested a shorter notice period.

It came to a head when they hadn't hired a replacement and he was starting the new job on Monday. Ultimately all they can do is pay him until the date he leaves; they can't legally withhold pay (unless it's pay in-advance), they can't refuse to pay his entitlements (although leave etc would be pro-rata). - Any other outcome will result in an employment tribunal ruling in his favour, and suing him may have the same result (and do nothing for the morale of the staff who are still there).

Much better to not antagonise the employee who's leaving and work with them to get a replacement as quickly as possible; maybe you can split the difference so they don't leave after 30 days, but they don't stay for 60?

Yup... in most cases the employer has a choice between capitulating and compromising. Anything else is likely to prove futile.
 
Imagine someone has resigned from their job, gotten a new job offer - but wants to negotiate a shorter notice period. For the purpose of this though process, let's leave aside work ethics, professionalism, personal pride in finishing a job and whatnot. Let's assume the employee wants out at all costs, and is willing to burn bridges.

The employer would have trouble replacing said person in the shorter notice period, so state that the employee has xx months of notice and need to serve said period.

Depends on actual circumtances. But in any situation that I have seen like this - the employer waives the extended notice period and lets the employee go early. And you've set the context: "Let's assume the employee wants out at all costs, and is willing to burn bridges." It's just not worth the hassle and unhappiness and fallout of having somebody who really doesn't want to be there - and it's cheaper and easier just to let them go - with a minimal handover period. If the notice period is enforced it is usually only if the employee is leaving for a direct competitor and in that situation it usually becomes gardening leave.
 
Entirely agree with the points above - it's certainly more hassle to keep someone who would actively damage your business than anything else.

I did try finding cases where an employer sued an employee for damaging the business while service a notice period (by actively under-performing, etc) - but found very little. The closest was a case where an employee caused a fire by forgetting some eggs on the stove and the resulting fire burned down the market. The case was dismissed (in Canada).

M
 
It's not me - I left the UK 6-7 months ago (following the whole brexit thing) and am happily resettled.

Clarify something for me. Are you saying you left the UK because of the Brexit vote?
 
Offering a performance related retention bonus would be about the only way, but probably not workable in this case.

Sort it out to let them go, even looking for a temp with the skillset would be more favourable than holding someone against their will in a role they have already resigned from.
 
Clarify something for me. Are you saying you left the UK because of the Brexit vote?
I'll avoid answering that as it's going into a political debate. Next time you're in Zurich, drop me a PM and I'll offer you a beer... and then happy to discuss my motivation :)

Offering a performance related retention bonus would be about the only way, but probably not workable in this case.
Sort it out to let them go, even looking for a temp with the skillset would be more favourable than holding someone against their will in a role they have already resigned from.
Indeed - 20/20 hindsight is always nice!
 
Switzerland :)

Genuinely interested?

You say 'the whole Brexit thing'?

Where you for or against leaving the European Union then?
 
I'll avoid answering that as it's going into a political debate.

Sorry, just seen this and totally understand, so don't worry about an answer.
 

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