Employment

Ensuring that the correct processes are followed when disciplining or dismissing employees is essential to remaining compliant with employment law obligations. Employers often overlook the importance of the process, leading to a dismissal that might otherwise be fair being considered unfair if a proper process has not been followed. Even if a fair process is followed, a dismissal might be unfair either by being too harsh or being inconsistent with the way others have been treated for the same offence.

If you are an employer looking for clarification on a fair process in order to comply with your obligations of trust and confidence towards an employee, or an employee who feels they may have the right to a claim and want to know the steps to protect or assert their rights, our employment team can help.

We advise on every type of termination, from gross misconduct to amicable resignations where there are issues about final payments, notice periods or ongoing responsibilities. 

If an employer commits a fundamental breach of an employee’s contract, they may be entitled to leave their employment and bring a claim for unfair dismissal and/or breach of contract. Our team can help clarify if any claim of breach of contract is sufficiently serious to be a “fundamental” breach – or that a fundamental breach of contract can be the last straw in a series of breaches which together are fundamentally serious.

If an employment contract contains restrictive covenants, an employee will need to be very careful about what they do on the lead-up to and after a resignation or termination. Employment terms should be checked to see if there are any restrictions on the type of work allowed, any geographic restrictions, whether an employee can approach contacts or former colleagues, or use certain information. 

We can help employers draft legally binding restrictive covenants in employment contracts, and employees understand them so that everyone is clear on what they can and cannot do. Breaching restrictive covenants can be a serious matter with severe consequences as employers can apply to the courts for an injunction restraining both the employee and their new employer, for being in breach of contract. If this is unsuccessful, an employer could still seek damages, which could be expensive and very time consuming. 

We can advise employers on restrictive covenants so that they would be seen as fair and reasonable if relied upon and help them take further action if the employee does not abide by them. For employees, we can provide legal advice so that they do not expose themselves to a risk of a claim by a former employer.

A Settlement Agreement (previously known as a Compromise Agreement up till July 2013) is a written contract whereby employment with an employer is terminated on agreed terms. These agreements contain important restrictions on the right to bring claims so it is important to get expert legal advice on the terms, whether you are an employer or employee.  

If an employee receives a Settlement Agreement the law states they should seek independent legal advice for it to be valid, and this legal advice is normally paid for by the employer in terms of a financial contribution. Our employment team can help to draft, review and, if appropriate, negotiating Settlement Agreement terms. 

In the vast majority of cases, our employment team are able to work to this budget set by employers and will invoice them directly, meaning employees get expert advice from specialist employment law solicitors for free. 

Normally employees will receive a compensation payment in exchange for waiving any potential employment claims against their (previous) employer. In essence it financially compensates the employee whilst limiting the employer’s liability so that a line is drawn under the end of the employment relationship with a “clean break” being achieved. Settlement Agreements can also be used for redundancy and retirement scenarios as well as being a way to settle contentious situations without the hassle and cost of initiating a claim at an Employment Tribunal. 

Our objective is to agree the terms of a Settlement Agreement as quickly as possible, often advising employees to the point of signing the same day that they instruct us. 

The Transfer of Undertakings (Protection of Employment) Regulations 2006 is generally known as “TUPE”. These Regulations effectively provide obligations on current and new employers when a business transfer takes place and employees are transferred. This situation can occur when a business or part of a business is merged or sold. 

TUPE in straightforward terms largely means that employees are entitled to transfer to the new employer with their existing terms and conditions being “protected”. It means that if an employee was employed directly before the transfer, they automatically become an employee of the new employer, unless they object to being transferred and notify either employer. An employee’s continuity of employment remains unbroken and they retain all the rights and obligations under their contract of employment with their former employer. It also means that an employee cannot be lawfully dismissed in connection with the transfer (except in limited circumstances) and that they and their employee representative must be informed (and consulted with) regarding the proposed transfer. 

If you are an employee who considers your employer has breached the TUPE regulations, by changing your terms and conditions as a result of the transfer, or if you are dismissed as a result of a transfer, you should raise a grievance using the company’s internal procedures and we can advise and help you prepare for this. If you are unsuccessful in your grievance, you may have the right to bring a claim in the employment Tribunal.  

There can be costly implications for employers who fail to comply with TUPE procedures. We have many years’ experience in advising on TUPE situations and can advise employers to ensure that they comply with all of their obligations. Our employment team can also advise in relation to any unfair dismissal claim which may occur.

Redundancy and reorganisation situations can be overwhelming and unsettling for anyone in the workplace, both employers and employees. Employers must proceed very carefully and ensure that they follow the right procedures and apply them fairly or there could be unfavourable long-lasting consequences. 

These situations usually arise when a business or workplace chooses to restructure its workforce in a different way because of a closure or if there is a decrease in a certain kind of work. 

Before starting the redundancy process, the employer has to be completely sure there are no alternatives to solve the issue causing the potential redundancy, including changes to an employee’s terms and conditions, that for example, reduce working hours or pay.  

The redundancy procedure is a legal requirement for all businesses, and employers need to follow it carefully to ensure that employees have been treated fairly as part of the process, to avoid unfair dismissal claims. This includes being clear on the reasons for redundancy, outlining how it was determined which roles are at risk, fair selection and the criteria used to ‘score’ staff against, various rounds of employee consultation, written notification and dismissal notices, and the right to appeal. Employees have the right to be consulted and the right to be given suitable alternative employment where possible, though the right not to be unfairly dismissed only relates to employees who have completed the qualifying service period of two years. An employee may also be entitled to a statutory redundancy package subject to their age and length of service. 

Also, if an employee has been chosen for redundancy for a reason tainted with discrimination (e.g. due to being on maternity leave or due to being a certain age) they may have a claim for unlawful discrimination. 

Special considerations and procedures apply when multiple redundancies arise. 

If you are an employer considering embarking on a redundancy process, or an employee who has been selected for redundancy, our Employment team can advise you on the correct procedures, check over any paperwork and advise on possible claims.

Garden leave is when an employee has resigned, or been put under notice that their employment contract is going to terminate, and is asked not to attend work but remains on the payroll. It is often used by employers to keep employees out of the competitive market place during their notice period and is sometimes used in conjunction with post termination restrictive covenants which prevent the employee from poaching or soliciting the ex-employer’s clients and business contacts.

There is an implied term in the contract of employment that the employer will provide work, and the employee will do work. By asking the employee to remain at home the employer is technically breaching the implied duty to provide work. However, there is no breach of contract if there is a specific clause in the contract of employment which gives the employer the right to put an employee on garden leave if notice of the termination of the contract is given by either party.

Garden leave is different from a paid suspension which is normally used to keep an employee out of the work place whilst disciplinary proceedings are undertaken. If an employee behaves in a way considered as misconduct, suspending from work pending investigation may be appropriate but it will need to be a reasonable decision otherwise the employer could end up facing an unfair dismissal claim.

If you are an employer wishing to enforce either suspension, garden leave or restrictive covenants, or an employee having these imposed upon you, contact our employment team for advice on whether these clauses would be regarded as enforceable by the Courts.

We spend so much time at work and if issues arise such as bullying, undue pressure from superiors or harassment they will understandably be taken home with you and can affect your mental and physical health immensely. 

 If you are an employee concerned about bullying or harassment in the workplace our employment solicitors can listen to you and get to the heart of the problem to evaluate your situation and offer practical advice quickly on a way forward to achieve the best conclusion. 

Our team of specialist employment lawyers can advise on every aspect of redundancy procedures, and  in relation to any unfair dismissal claim which may occur as a result.