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.
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.
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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