The recent Court of Appeal decision of Sunrise Brokers LLP v Rodgers is a helpful decision for employers seeking to hold errant employees to their notice periods without having to pay them in circumstances where they are unwilling to work.
Rodgers was employed by Sunrise as a UK-based broker on an initial three year fixed-term, thereafter terminable on twelve months’ notice. In summary, Rodgers resigned with immediate effect during the fixed term to join a competitor in New York, refusing to work out his notice period. Sunrise did not accept Rodger’s repudiatory breach of contract and wrote to him to affirm the contract. As Rodgers did not attend work to perform his duties, Sunrise stopped paying him and brought successful High Court proceedings for injunctive relief to hold him to his contract of employment, including his post-termination restrictive covenants. In practice, the grant of the injunction meant that if Rodgers continued to fail to attend work, he would be without pay for a period of ten months.
The Court of Appeal dismissed Rodgers’ appeal against the injunction. Rodgers was in repudiatory breach of contract by purporting to resign without notice, but Sunrise was entitled to elect to affirm the contract. Whilst the courts will not order the specific performance of an employment contract (and so Rodgers could not be compelled to perform a handover of his duties), payment and work were mutual obligations and so Sunrise was under no obligation to pay Rodgers unless he was willing to work. The court did not accept that, on the facts of this case, by being without pay for the period in question, an injunction would effectively compel Rodgers to work through hardship.
Sunrise Brokers LLP v Rodgers  EWCA Civ 1373