Can employers only enforce the terms of employment contract post-employment restrictions where they themselves are not in breach of that contract?
So, as an example, if an employer terminates an employee’s employment with immediate effect and makes a payment in lieu of their notice period without the contractual right to make that payment, they would be in breach of the contract and could not, therefore, seek to enforce any restrictive covenants.
A finding of unfair dismissal in and of itself would not amount to a finding that the employer has breached the employment contract.
But if the former staff member pursues a claim of constructive dismissal that is upheld by a tribunal, the employer has, in effect, been found to be acting in fundamental breach of the employment contract. This means that any covenants would fall away.
This is the question we put to employment solicitor and expert Tosh Polpitye.
My employer has dismissed me can they still enforce the restrictive covenant in my contract? Expert solicitor Tosh Polpitye will explain.
So if somebody's been dismissed from their job, there's no reason that the restrictive covenant shouldn't still be enforceable. The only reason that they would be unenforceable is if somebody leaves the job because their employer has acted in a way that is seriously unreasonable. Something that fundamentally breaks the neutral duty of trust and confidence. So if the employer behaves in a way that forces you out that it seriously unacceptable, then you're no longer bound by post-termination restrictions, but if you are dismissed that's not the case
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