Retail Appointment May 2018 TRAP_May 2018_Digital Edition | Page 7

he short answer is no, you cannot ignore it. A court or a tribunal is al- most certainly going to find that a contract does exist and that you are bound by it. There may be some dam- aging repercussions for you if you just walk out. T Firstly, let us consider what is a contract? In English law the definition of a contract is a legally binding agreement. It does not have to be written at all, let alone signed. A contract is in place where there has been: 1) An offer. 2) An acceptance of that offer. 3) Consideration – this is usually money but can be something of value. 4) An intention to create legal relations. Let us look at this in simple terms: 1) I offer to sell you my lovely electric BMW i3 in the pub one night for £5,000. 2) Yo u accept my offer. 3) Nothing is written down. 4) Does a contract exist? Well, there is certainly an offer, and that is me offering to sell you my car for £5,000. And there is an acceptance, you have agreed to buy it. There is definitely consideration, the £5000. Is there an intention to create legal rela- tions? This is where it is open to interpre- tation. If you are my buddy and we’ve just finished our 6th pint of strong lager, al- most certainly the final component “inten- tion to create legal relations” is not there. This is a social context and the final com- ponent does not exist. However, what if I have advertised my car for sale and you had met me in the pub for the first time for the specific purpose of buying my car? I offer to sell it to you for £5,000 and you accept. Clearly, the purpose of the meeting was to do a deal. Therefore, the intention to create legal relations is there and the con- tract is binding. So what happens if I change my mind? You could enforce your right to buy my car in the courts, or I can force you to buy it in the courts. It doesn’t matter that there was only a handshake on the deal. The reason people do tend to write down contracts is for the purpose of proof. What if you and I were sitting in a quiet corner of the pub when this agreement was reached. How do I prove we had that agreement? This would be simply re- solved by what a judge believes. If your friend the magistrate or some other dis- tinguished person was present, that may be sufficient proof. In an employment situation, it is very straight forward. The offer: Usually a letter, but can be verbal. Do you want to come and work for us for £40,000 per year? The acceptance: Is not when you sign the letter but when you turn up for work. Having turned up for work, you have ac- cepted that contract. Consideration: You have accepted pay- ment for your work. Intention to create legal relations: All em- ployment arrangements must be an inten- tion to create legal relations. In this case, your employer has offered you a job in which there is an expressed term that you must give the employer three months’ notice. By turning up for work and being paid, you have accepted that con- tract and all its terms. Only if you had specifically rejected that term could you argue that you are not bound by its effect. For example, if you had written to them accepting the contract as a whole but re- jecting that part, it would no longer be ef- fective unless the employer expressly rejects your amendment. So, what would happen then if you just walked out? You would be in breach of your contract. Your employer could sue you in the courts for payment in lieu of notice (yes, it works both ways) or worse still, if they suffer a loss as a result of your premature depar- ture, they could sue you for damages. In practice, this rarely happens at more junior levels, but if you are more senior, say at director level, this could be very expensive for you. In either case, your reputation will be damaged and you may get a bad ref- erence (see article on References). Advice: If you are faced with this situation, the only sensible course is to negotiate with both your current and new employers. Employers can often be angry when a good team member gives notice, espe- cially if you’re going to a competitor. Give it a day or so and then approach them again. In my experience is it very rare for an employer to dig their heals in, and often there is an tri-partite agreement where per- haps you return to the old employer for a key function/meeting. Be careful though. If your employer requires you to stay until the end of your notice, you will have to stay or suffer the consequences. Peter Burgess Readers are welcome to respond to these articles by visiting our website at www.retailappointment.co.uk/POL, where they can review other issues or make comments on this advice. Got a new question? Just email us at [email protected] or visit us on the website. This advice is meant for general entertainment purposes only and, if you have a specific issue on which you need help, you are advised to seek the advice of a solicitor, HR Consultant or can obtain free advice from ACAS. “I offer to sell you my lovely BMW i3 in the pub one night for £5,000.” retailappointment.co.uk 07