Employees often ask us to review their employment position to ensure that their rights are being satisfied, or to advise on how they should address a dispute with an employer.
Many of these matters can be concluded swiftly, but others may escalate or the relationship may break down and the matter may become contentious. We are able to offer support and guidance in any given situation.
As with employer clients, the concerns held by employees will often be similar irrespective of industry sector. However, each case will have its own nuances and will be addressed on an individual basis dependent on the particular circumstances at play, such as concerns about the practicalities of continuing to receive an income, health, unfairness, reputation and the ability to remain in, or obtain alternative, employment.
We act for employee clients at all levels and across many industry sectors, including many senior executives and directors, often in banking. We have a particular niche in dealing with mental health issues for senior executives, whether or not such claims arise from any fault of their employer. The majority of our work for individuals is generated by recommendations from existing clients.
Confidentiality & Competition
Employers are invariably anxious to protect confidential information and trade secrets relating to their business, and also to prevent the poaching of their valued employees whose departure would place them at a disadvantage. Their documentation will often include comprehensive anti competition restraints or restrictive covenants, including provisions seeking to prevent departing employees from soliciting or having business dealings with customers and interfering with other business relationships.
Existing employees will also be subject to additional duties to their employer, including the duty of loyalty, or higher, fiduciary duties if a director or in an equivalent senior position. An employer will inevitably claim property rights over confidential information and trade secrets.
We can advise employees planning to leave their employment regarding the likely enforceability or otherwise of anti competition provisions in their service agreements, employment contracts and confidentiality agreements, and how they should approach their departure.
Contracts & Termination Agreements
A proposed move to another employer can seem daunting. We can offer support by reviewing current contracts for provisions which can affect an employee's ability to move seamlessly to another job, as well as review and assist in the negotiation of new terms and conditions. Many of our individual clients ask us to review employment documentation to let them know in advance of any unusual or particularly onerous provisions or restrictions, or to seek clarity regarding entitlements before they accept an offer of employment. We also advise on complex remuneration structures.
Additionally, we regularly review severance proposals and agreements for directors and employees at all levels. We advise employees of their rights on the termination of their employment, and on the terms of any proposals or compromise agreements, and help to negotiate improvements or simply to confirm that all their rights have been addressed for their peace of mind. We challenge the fairness of dismissals and internal procedures, where appropriate. We advise on termination agreements at all levels, including the most senior and sensitive. Employers usually offer a modest contribution towards the cost of obtaining advice. Sometimes this can be increased to cover all costs incurred.
Employees will often have a deep seated grievance, and will want to explore whether an employer's conduct - or that of a colleague or other business contact - is lawful. Discrimination arises when an individual is subjected to less favourable treatment on any of the prohibited grounds or treatment which fails to recognise a disability. These are gender, maternity issues, sexual orientation, race, nationality and ethnicity, age, disability, religious and philosophical belief.
Discrimination may take many forms. It may be direct, when an individual is subjected to detrimental treatment on one of the prohibited grounds, or through stereotyping. It may be indirect if a condition is set which persons of a particular grouping are less able to satisfy and which places them at a disadvantage. Alternatively, discrimination can take the form of harassment or victimisation.
Discrimination in any of these forms can occur during or after termination of the employment relationship and an example of this might arise if the employer refused to give a reference due to discrimination.
We regularly advise employees how to deal with discriminatory conduct during employment, explore whether disputes can be resolved, and will pursue claims when they cannot be. We have particular expertise in advising in respect of disability discrimination issues.
Disputes & Procedures
There is a large number of areas which may give rise to a dispute in an employment context, and on which we advise.
These areas include potential contractual disputes, such as over bonuses or benefits, as well as entitlement to holiday under the Working Time Regulations 1998. Other grounds for potential dispute in which we can assist include bullying, discrimination (including maternity issues), sickness and absences due to ill health, inappropriate use or disclosure of personal information under the Data Protection Act 1998, disclosures under the whistle blowing legislation, and issues relating to disadvantage suffered after assertion of breach of statutory rights.
Additionally, we regularly advise in respect of internal procedures, whether invoked by an employee, such as in respect of grievances or requests to work flexibly, or by the employer, for example, the implementation of disciplinary or performance procedure.
We can help employees understand these procedures and prepare any representations they wish to make. This helps to ensure that their strongest and most persuasive case is put forward at an appropriate stage. This may bring a potential dispute to a swift conclusion, or strengthen the employee's hand in the event that the matter escalates into a dispute.
Redundancies & Business Transfers
Many employers are reviewing their costs in the current climate and exploring ways in which these can be reduced. Headcount is often a target, and redundancies have been high. Other employers seek to make changes by improving efficiency through structural changes. Such disruption can be daunting for employees anxious to retain their position within an organisation, and their income.
From our experience of advising employers in this area, we can consider critically any reorganisations, restructurings, redundancy procedures and business transfers (whether or not falling under the TUPE regulations) to explore the appropriateness of the procedure used, the relevant information provided and any related consultation, and any potential claim(s) which an individual may have. Additionally, we can review the fairness of any selection and consultation process applied in a redundancy situation. The approach to be taken will invariably depend on whether the employee's objective is to retain employment, seek enhanced terms for departure, preserve professional reputation as a key to future work, or to prepare the basis for effective pursuit of claims. Each case is different and our approach is tailored accordingly.
Sickness & Health
Employees who have suffered a physical or mental ill health or injury often find it difficult to address matters arising in respect of their employment, or to understand and engage fully with any internal process. The prospect of losing employment and income may cause further harm to the employee's health and delay recovery. Whilst some employers will be more generous and understanding than others, there is a balance to be found between an employee having sufficient time to restore health and the employer's wish for them to return to work or to leave.
We have particular experience of advising individuals who suffer non-physical and physical health problems, whether or not as a result of their employment, and whether or not their illness brings them under the protection of the Disability Discrimination Act 1995.
We are experienced in guiding individuals through what is inevitably a difficult time, and, when authorised, will liaise with employers, health practitioners and providers of permanent health insurance, to support our clients, to progress their case, to protect them in their employment and where necessary, to litigate.
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