Duncan Snook, employment solicitor at Thrings, comments:
Steve Borthwick’s resignation as Bristol Rugby’s forwards coach, and the RFU’s sudden announcement that he was joining England’s coaching set-up with immediate effect, came as unwelcome news for long-suffering supporters of the West Country club.
But they are not alone. The club itself reacted by rejecting Borthwick’s resignation later the same day, issuing a statement declaring their intention to “take all reasonable actions as necessary to protect the Club’s position”.
According to reports in the media, the RFU was prepared to offer Bristol a significant amount of money for poaching Borthwick, who only joined the Championship leaders in October. But Bristol appeared to be seeking a more substantial settlement to the one being offered. This is perhaps not surprising given the potential damage the immediate loss of such a key appointment could cause Bristol half way through the season and to their prospects of promotion back to the top flight of English rugby.
Losing such a key employee at particularly short notice (as in this case, where an employee refuses to work their notice or remaining term of their contract) is a problem that many employers encounter. But what steps can employers realistically take in response?
An employee’s decision to resign and refusal to see out the rest of their contractual term or notice does not automatically terminate their contract. If there is sufficient riding on it, an employer can refuse to accept the staff member’s resignation, and seek a declaration from the High Court that the contract still exists and an injunction restraining them from working for anyone else during the notice period or remainder of the contractual term. Alternatively, an employer could pursue a claim for breach of contract against the employee. However, this is not a step commonly taken in practice as it will often be difficult for the employer to prove or quantify their loss.
Bristol no doubt considered the prospects of success, and costs, of pursuing both options in great detail. However, the two parties appear to have now resolved this very public bust-up, enabling Borthwick to start working with the RFU. England can now get back on track following a disappointing World Cup campaign, while Bristol can focus their attention on finishing the end of the season as strongly as possible.
For more information about breach of contract, and the steps employers can take to restrain the activities of former employees, please contact Duncan Snook or another member of Thrings’ Employment team.