Sir Clive Woodward's recent expression of interest in a soccer role generated debate on the disparities between rugby and football management. However, Julie Morris finds that the resulting discussions between Sir Clive and the Rugby Football Union raised another area of interest to the debate by employment lawyers


Sir Clive Woodward was appointed on a fixed-term contract as England head coach with the Rugby Football Union (RFU) until 2007, which would have meant him holding the top post until the end of the 2007 World Cup.


However, that contract gave him a one year 'opt out', meaning that, provided he gave his employer's 12 months' notice, he could bring that contract to an end prior to 2007.


Sir Clive approached the RFU at the end of August 2004, to try and negotiate a way out of having to serve that one-year notice period - while still offering to work until the end of the November test matches against Canada, South Africa and Australia. He presumably expected that the RFU would simply waive his notice period and allow him to leave when he chose.


However, the RFU initially tried to hold him to his 12-month notice period and there followed two days of talks, during which, Sir Clive gave an acrimonious press conference, blaming his employer for its lack of co-operation over training time for England players and other matters.


Indeed, reports suggested that, by that time, his relationships with senior figures within the RFU and the club structure were beyond repair.


Ultimately, after extensive talks, the RFU agreed to let Sir Clive leave his role as head coach immediately, appointing Andy Robinson as his replacement, allowing Sir Clive to concentrate on the forthcoming Lions tour and his apparent passion, Association Football.


So what is the significance of this outside the rugby world? Well, employers will often ask senior individuals in their organisations to sign up to long notice periods, say six months or a year, for both the employer and the employee, before either party can bring the contract to an end. Some employees ask whether they should be concerned about this, wanting the flexibility to move on quickly, if another position arose.


However, the reality of the position is that while a long notice period offers substantial protection to an employee, and is the best way to build in protection in the event of arbitrary or unfair dismissal, particularly in the first year of employment, it is rarely of use to an employer.


We all know that once an employee has secured another job and handed in his notice, his heart isn't really in the job in the same way. Employees will often start arriving later at the office and the lunch breaks extend - even those on a three-month notice tend to use it as a winding-down period. In Sir Clive's case, he had even gone so far as publicly to criticise his employers in a press conference while sitting next to his bosses, indicating a clear breakdown in the relationship between him and his employer.


So is this really a situation where an employer would want that relationship to continue for an extended period, in roles where commitment to the job is absolutely essential?


Of course not. In fact in most cases, the parties will simply agree to waive all, or at least part, of the notice period and for the individual to stay just long enough to carry out an effective handover.


Alternatively, they may ask individuals to serve a period of garden leave, meaning that there is at least a gap before individuals can take up their new posts.


This forces employees to break contact with clients and ensures that the confidential information they have in their possession becomes less relevant. Where this is a concern, garden leave can be a more effective way of keeping tabs on the employee than non-competition and non-solicitation clauses, as during that time, the individual remains an employee and continues to owe obligations of good faith to the employer.


However, garden leave periods tend to be imposed for only a few months, and are rarely for more than six. Any longer and employees may have grounds for challenging them as an unreasonable restriction on their ability to work, particularly where their skills could be said to 'waste away' during that period.


Even where the employer doesn't agree to an employee leaving early and the employee simply walks out, unless the individual is moving to a competitor or taking clients or staff, an employer will rarely pursue that individual in respect of a failure to abide by the notice period.


This is firstly because a court will not force an employee to work. While the presumed reason for this is that to do so would smack of slavery, the more accurate reason is that it is impossible for the court to supervise an employment contract.


Secondly, even if an employer wishes to pursue that individual for damages, the employer's loss will often be limited to the cost of hiring a replacement during that notice period, less what the employee would have earned had he worked it, which is often not a significant sum.


So its all very well an employer trying to bind its top employees to long notice periods, in the supposed interests of protecting the business.


But the reality is that, provided at the very most the employer has enough time to find a replacement, it is rarely going to be in the best interests of the business to have a disenchanted employee with itchy feet, holding the reins.



Julie Morris is a solicitor in the employment department at the London office of Russell Jones & Walker