The effect of termination upon post-employment obligations

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Abstract

This chapter probes the interplay between the common law rules governing the employment contract in post-employment mode and the obligations that continue to bind the employer and the employee when their relationship enters that particular phase. The argument is made that the obligations (i) imposed by the foundational wage-work bargain and (ii) governing the ongoing and future performance of work, are erased post-employment. A number of more conceptual and structural questions flowing from that revelation are then posed, which are primarily rooted in the continuing applicability of some of the implied terms of the employment contract. The first entails the teasing out of the norms related to the problematical doctrine in General Billposting Co Ltd. v Atkinson. The analysis then turns to an exploration of the juridical nature of the obligations of the contracting parties that continue whilst the employment contract has entered the post-employment phase. As part of that process, the theoretical and practical implications of the continuity of the implied terms of the employment contract in the post-employment phase is addressed, including an account and analysis of the duration of the obligations impressed on the parties by the implied terms. In the final section, the chapter underlines the vitality of public policy controls derived from the common law when the employment contract is in the post-employment stage, as mediated through the restraint of trade doctrine. However, in a break from the general post-employment theme of the chapter, it will also be shown exactly how powerful that doctrine is when the employment contract is in the full employment mode. In particular, the chapter does the work of expounding the constraints exerted by the restraint of trade doctrine in the context of garden leave and exclusivity arrangements which apply during employment.
Original languageEnglish
Title of host publicationThe Contract of Employment
EditorsMark Freedland, Alan Bogg, Hugh Collins, Anne Davies, Nicola Kountouris, Simon Deakin, Jeremias Prassl
Place of PublicationOxford
PublisherOxford University Press
Chapter26
Pages561-581
Number of pages21
Edition1st
ISBN (Print)9780198783169
DOIs
Publication statusPublished - 26 May 2016

Keywords

  • Contract of Employment
  • Employment Law
  • Labour Law
  • Termination of the Contract of Employment
  • Post-termination obligations
  • Garden leave
  • Primary contractual obligations
  • Secondary contractual obligations
  • Restrictive covenants
  • Clauses in restraint of trade

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