Employment law may seem like a minefield to employers as they endeavour to adopt and implement fair processes and avoid the pitfalls potentially giving rise to employment claims.
Whilst the challenges inherent in employing workers are similar across the board, each employer will have particular concerns whether this is related to their industry sector, their reputation, the confidentiality of information and relationships with business contacts, and their competitive edge. Each employer is likely to have as its goals the management of a contented, stable and productive workforce and a wish to avoid dispute, which detracts from this.
Business Transfers & Redundancies
Reorganisations, restructurings and redundancies are commonplace at present, whether they involve individual or collective redundancies. Along with business transfers, whether through sale or asset acquisitions falling under the TUPE Regulations, these give rise to the need to provide employees with prescribed information and consultation, whether with employees individually or collectively through elected representatives. Complying fully with these obligations can be difficult and complex, and the sanctions for failure to comply can lead to expensive claims, including for unfair dismissal (the maximum award for which is £95,585 (a compensatory award of £78,335) or 52 weeks' pay whichever is the lower per employee, subject to individual circumstances) and protective awards for failure to inform and consult correctly of up to 13 weeks' actual gross pay per employee affected, even if only one employee brings a claim.
We offer guidance though the statutory procedures and requirements, including in respect of the provision of information and appropriate consultation, and we prepare the necessary documentation with the aim of avoiding the creation of successful claims and to minimise disruption to the workforce at large.
Dismissals of protected employees made due to asset transfers are automatically unfair and employers are restricted from making changes to terms and conditions of employment for reasons linked to such transfers. We advise on the employment implications of asset and share transfers and on the liabilities relating to transferring or inherited employees. We can help negotiate warranties and indemnities to apportion risk in sale and purchase agreements and shareholders agreements.
Competition & Confidentiality
With the rise of information technology and the value and accessibility of electronic data, employers are increasingly concerned about the need to protect confidential and sensitive information, as well as the poaching of key employees or interference with business connections, and the avoidance of unfair competition.
Preventative steps which can be taken include the preparation of effective restrictions or garden leave provisions in service agreements and contracts of employment, as well as confidentiality agreements to suit the particular circumstances. These contractual provisions, often referred to as restrictive covenants, can apply to conduct during employment as well as after it has ended, and to any period in which an employee is placed on garden leave or an employee is suspended.
Restrictions can be used to prevent the use or disclosure of confidential information and intellectual property, the solicitation of customers, interference with other business relationships, and the poaching of key employees. Contractual restrictions may well be supplemented by common law such as the duty of loyalty which binds employees during employment, and fiduciary duties which bind existing directors.
We regularly advise on the reactive steps which may be taken in the event of breach of these requirements, whether by individuals or by two or more employees acting together, including obtaining appropriate warranties as to steps taken and undertakings with regard to future conduct, obtaining injunctions, and issuing claims for breach of contract and/or for an account of profits.
Contracts & Policies
Clear and transparent contractual and policy documentation is vital in preparing for a smooth employment relationship. Documents should provide guidance on how employers and employees are expected to conduct themselves and what is required of them in any given situation, to avoid uncertainty and conflict.
We can prepare documents such as directors' service agreements, employment contracts, consultancy agreements, staff handbooks and policies according to the needs of each employer, depending on their particular area of business and their concerns, priorities and budget.
Discrimination awards are uncapped and are potentially substantial. Employers are generally anxious to avoid the adverse publicity and stigma of tribunal findings against them. Conduct which falls short of the expectations of a modern, open-minded and inclusive society is of interest to the press and to the general public, whilst employers are often keen to avoid adverse publicity resulting from systems failure or personal error.
Discrimination can be direct, namely, less favourable treatment on a particular prohibited grounds, or indirect, if a requirement is imposed which persons from a particular group are less able to satisfy, causing them disadvantage. Discrimination can also take the form of victimisation, for example, because they have alleged discrimination previously.
Discrimination can occur before, during or after employment has ended.
We regularly advise employers on allegations of discrimination on any of the prohibited grounds, being gender (including maternity issues) and marital status, sexual orientation, race and ethnic origin, age, disability, and religious and philosophical belief.
Employees are generally more aware of their employment rights than in the past and, often buoyed by the substantial awards reported in the press, are increasingly willing to bring claims, whether speculatively or due to a genuine complaint.
It is important that employers are alive to events which may lead to potential liability. We regularly advise employers on the full range of potential risks, including contractual entitlements and obligations, disclosures made by employees, whether or not under the whistle blowing legislation - and their subsequent treatment, short and long term sickness absence (including in respect of employees who may be disabled or who may qualify for permanent health insurance benefits), rest and holiday entitlement and pay, discrimination (the most common grounds being gender, maternity issues, race and disability), alleged bullying and harassment, maternity, adoption and parental leave and leave to care for dependants, requests to work flexibly, requests to work beyond the default retirement age, data protection and the receipt of subject access requests, and the monitoring and surveillance of email and internet usage.
We can guide employers through any of these areas, advise on procedure, help to quel escalating disputes, and help to avoid successful claims being made.
Internal Procedures & Dismissals
The implementation of fair and appropriate internal procedures is central to the facilitation of smooth working relationships and the management of any disputes or issues which arise. The most common claim arising from failure to apply fair procedures is for unfair dismissal, the maximum award for which is currently £95,585 (a compensatory award of £78,335) or 52 weeks' pay whichever is the lower. As a result, preparation is time well spent. Other claims, such as those for whistle blowing and discrimination, are uncapped, and can be substantial.
We can advise on fair procedures to be used whenever employment issues arise. These may include performance or conduct improvement plans, and we can help organise and manage this process.
We have particular expertise in advising on ill health issues, whether with regard to recurrent short-term absences or long term absence, and whether or not an employee is "disabled" and protected by anti discrimination legislation, or has permanent health insurance cover. If an employment relationship simply is not working, or in the event of redundancy, we advise on appropriate disciplinary/dismissal procedures. We provide guidance on implementation of the Acas Code and the obligations on employers to follow a fair procedure according to the circumstances of each case, to help avoid successful claims. We deal with dismissals of directors and employees at all levels and help conclude compromise agreements and severance packages with very substantial value or at more modest levels.
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