MORALS IN THE MARKET: The Torah on business ethics
THE QUESTION: I have offered a job to someone and asked her employers for a reference: but they have replied that she will be in breach of her contract with them if she comes to work for me.
If the employers’ contention is correct as a matter of civil law, then your position is very simple as a matter of Jewish law. In a case like this, the Torah applies the principle that the law of the land is valid as halachah as well. So a breach of secular law by your prospective employee will be a breach of halachah.
You would therefore have to withdraw your job offer. That would not be contrary to halachah on the grounds of breaking a promise, because every job offer is subject to the implicit condition that inquiries into the person’s position do not reveal anything that prevents their employment.
If your offer was expressly subject to references, then you do not even need to rely on this implicit condition, since the legal objection was raised by the employers in their reference.
The employers’ objection may, however, turn out to be untrue as a matter of civil law. Even if there is a provision in the employee’s contract, which would prevent her coming to work for you, that may well not be the end of the story: English law is suspicious of provisions said to be in restraint of trade, and an express contractual condition preventing a person from accepting employment will sometimes be found to be ineffective for that reason.
If that turns out to be the case, you will have to go on to consider the ethics of the situation. Torah law sometimes requires us to go beyond the requirements of secular law, and Torah thought sometimes encourages us to go beyond even the letter of Torah law.
You will need to consider all the circumstances: whether there is a real prospect that the present employer’s business could be harmed in any way by their employee coming to work for you; whether their condition was reasonable in other respects, such as whether they paid relocation or training expenses of a kind that were commercially warranted only if she were to stay with them for a considerable time; whether it would be reasonable for you, or possibly your employee, to take steps to prevent loss or harm to her present employers or to compensate them.
Also, did the employee know what she was agreeing to when she signed the contract; and did she so entirely willingly or under some element of practical compulsion?
Once you have weighed all these factors, the fair way to proceed will probably become apparent to you. If the dispute continues, you should of course aim to make an arbitration in the Beth Din the first line of approach for its resolution.
DANIEL GREENBERG Jewish Association for Business Ethics