Business Legal Services | Employment Law
Taking the right approach to employee relations is crucial to maintaining morale, protecting your balance sheet and safeguarding your reputation. Our employment law solicitors take a commercially-focused approach that enables you to comply with regulations in a way that minimises the risk of a claim against you. We can draft any documents your business requires, such as employment contracts, disciplinary and grievance procedures, to ensure you have maximum protection.
If you are the subject of an unfair dismissal claim by an employee, you need to demonstrate that you have adopted fair procedures and may need to justify your actions before an Employment Tribunal. Our experienced solicitors will provide support during any negotiations, dispute resolution proceedings or litigation. This would also include advising you on the options of a settlement agreement.
We retain our excellent reputation for providing fast, appropriate and commercial advice to clients.
Our recent work includes:
- We have supported a number of senior employees in obtaining appropriate exit packages
- Establishing an employee incentive scheme for a national recruitment consultancy
- Handling the Transfer of Undertaking (TUPE) requirements on business sale, including arranging the election of employee representatives and the TUPE information and consultation process
- Defending employers on unfair dismissal and sex and race discrimination claims
- Disputing the employment status of managers of semi-professional and amateur rugby and football clubs in relation to their eligibility to bring unfair dismissal claims
- A substantial TUPE case listed for a three-day hearing on whether employment transferred when a local authority contract was awarded to a new contractor
For your convenience we can meet you in any one of our local offices in Studley, Worcester or Birmingham.
Workplace Disability Discrimination
Our Client had received a claim from a former employee for constructive dismissal, unlawful deduction of wages and disability discrimination. The Claimant was a valued long-term employee and their package was basic salary plus commission.
Our Client had been reviewing the commission payment and had discovered that the Claimant, who was at the time on stress related sick leave, had over claimed commission during the past year.
It was decided that no formal action would be taken but all future commission payments would be withheld until the over payment had been cleared. Unfortunately, after three months the Claimant sought to argue that their employer was in breach of contract for withholding future commission earned and resigned stating this as a reason along with harassment and excessive workload.
Proceedings were then issued by the employee in the tribunal and an addition of disability discrimination was added to the list. This was because the Claimant had suggested that our Client had discriminated against them by failing to make reasonable adjustments to the workload.
Our detailed response on behalf of the Client included that we believed the Claimant not to be disabled for the purposes of the Equality Act 2010; the Claimant was not being harassed merely managed appropriately; attempts had been made to alleviate the workload on a number of occasions but the Claimant hadn’t agreed to any options other than their own, which impacted adversely upon other team members; it was reasonable to make deductions of salary due to the over claiming of commission.
After two preliminary hearings the tribunal found in our Client’s favour that the Claimant was not a disabled person for the purposes of this claim. A full hearing was listed and it was necessary to complete a number of witness statements, which needed to be detailed and address each of the Claimant’s claims.
Following a five day hearing the tribunal confirmed the claim for constructive unfair dismissal failed. They did however find in the Claimant’s favour in respect of unlawful deduction from wages for a period of eight weeks, but found in our Client’s favour for the following five months. Because the claim had not been separated in this way, we were surprised by this outcome and requested a review of the judgement, given that the claim for this period was not lodged until much further down the line and was out of time and therefore should be dismissed. Both parties were ordered to provide written submissions on the issue with the matter being listed for a further hearing.
Following this hearing the tribunal agreed with our submissions and confirmed that all of the Claimant’s claims failed. Our Client was delighted with the outcome and level of support we provided to them.
Our client provides specialist IT services and they successfully tendered for a new contract. There was a service provision change that triggered the provisions of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE).
Employees would be transferring to our client business from 3 different locations and at the outset it was anticipated that approximately 25 employees may become redundant.
We therefore advised on the multi-site collective consultation process in relation to the TUPE transfer and the proposed redundancies. This was a complex matter as each location had different concerns that needed to be addressed. We also needed to ensure that the business had adequate expertise going forward to be able to provide the service for which they had tendered.
The client was extremely pleased with the advice and support which involved many out of hours phone calls and emails.
This was a significant event for the client and we therefore worked closely with them to ensure that the process was carried out efficiently and without delay.
Employment issues with a transfer of business
Our client was a manufacturer and worldwide distributor of quality parts. We were asked to assist in the employment issues that may arise in a transfer of the business. This involved advising on the consultation obligations of TUPE together with the indemnities and warranties included within the Asset Purchase Agreement (APA).
The advice given in this case was particularly complex for a number of reasons.
Firstly the Buyers were very unpredictable. Issues that had previously been agreed were suddenly resisted and numerous amendments were made to the APA. Strong negotiation skills were required given that the Buyer tried to resist all proposals put forward on behalf of our client.
Secondly, the employee representative appointed by the employees of our client was very obstructive. As a result, the consultation process was extremely difficult and it seemed like he was attempting to alienate all the employees. Unfortunately he was then absent from work and did not return. This had led to obvious difficulties in the consultation process and required us to advise the client to instruct the employees to appoint a substitute.
On review of the contracts of employment it then became apparent that the same employee representative appeared to have changed his contract of employment to provide for a very generous terms in relation to bonus payments and notice periods. Initially the client believed that the employee fraudulently changed the documentation, acting alone in doing so. Given that our client had agreed to fund the cost of any post transfer redundancies of the transferring employees, it was vital that this matter was resolved pre transfer.
On further investigation it transpired that a director of the client had in fact colluded with the employee in relation to the favourable contractual terms. We therefore wrote to both the director and the employee notifying them that we had found evidence of their collusion. Such evidence was found by way of skype conversations. We explained we believed they were both in fundamental breach of contract and that we would be entitled to terminate their employment with immediate effect for reason of gross misconduct. In addition, we reminded the director of their fiduciary duties. As a result of this correspondence, the employee agreed to a vastly reduced settlement and signed an agreement waiving any claims that he may have had.
Clearly, this investigation and the subsequent settlement negotiations had to be concluded in the context of a highly sensitive transaction. As such, advice and support was regularly provided outside normal office hours, including at weekends. The client however was delighted by the outcome and was able to continue with the sale of his business without further difficulty.
Our client is a charity offering friendship and support.
It had become apparent to the trustees of the charity that the CEO was acting in excess of her authority and her conduct was having a detrimental effect on the purpose of the charity.
The CEO had raised concerns about the management of the charity but these concerns were investigated and found to be unsubstantiated. There was however concern that, were she to be dismissed or subject to any other disciplinary sanction, she would assert that this was detrimental treatment arising out of her grievance.
Following a particularly difficult trustee meeting, the CEO left the premises stating that she was seeking advice from her solicitor. She then followed up her statement in an email to the trustees.
A further trustee meeting was held and it was decided that the relationship had broken down irreversibly. They therefore resolved that the employment of the CEO would be terminated.
At this point we were asked to advise on the various options available and set out the risk of each option. We sent detailed advice to all trustees that included reference to the following options:-
1) Meeting with the CEO and seek to resolve the outstanding issues. We advised that clear performance targets should be agreed. We also advised that the responsibilities and authorities of the CEO be agreed to avoid further dispute. We explained that once these parameters had been agreed it would be appropriate and reasonable to commence disciplinary action for any breach.
2) Holding a protected conversation with the CEO and agreeing an exit package. We suggested that any settlement would include a confidentiality restriction to ensure that the reputation of the charity remained protected; or
3) Commencing the disciplinary procedure and terminating the CEO’s employment due to the breakdown in trust.
Following a vote of the trustees it was decided to proceed with the first option and seek to resolve outstanding maters with the CEO. We were able to advise on the approach to take during the meeting and the issues that should be discussed and if possible, agreed.
Agreement was reached on the majority of issues during the meeting with the CEO however, the only outstanding issue relating to funding of the CEO’s salary increase. The charity was not able to satisfy all the conditions and as such, the funding would not be available to them.
The CEO then resigned from her position asserting the following:-
• The trustees had put her in an unacceptable position;
• Her authority had recently been undermined; and
• Conduct afforded to her amounted to bullying.
The trustees were immediately concerned that a claim of constructive dismissal would follow but we were able to offer reassurance on the following basis:-
1) We had acted wholly reasonably in meeting with the CEO to try and resolve issues that had arisen;
2) It was reasonable for us to seek clarification about the funding that the CEO claimed entitled her to a pay increase;
3) We were aware that the CEO had commenced alternative employment the following week. As such, the value of her claim would be limited to any basic award in any event.
This was a difficult case to advise on given that it was necessary to seek instructions from all trustees. Many of the trustees worked in other roles on a full time basis so instructions were often obtained out of usual office hours. Care had to be taken to ensure that the trustees presented a united decision. In the event that there was a dispute about the most appropriate action then the trustees had to be advised to seek their own legal advice.
When things go wrong with family members as employees
We were contacted by a director of a family business. Their son was an employee and director of the business but they had apprehensions about his commitment to the company. These concerns were centred around his failure to attend work, disclosure of confidential information and verbal abuse to staff. On hearing a description of the conduct complained of we suggested to our client that this conduct would have entitled them to have summarily dismissed their son. Unfortunately, no action was taken and too much time had passed to allow any decision to terminate his employment to be fair.
Eventually the client’s son notified the client that he intended to resign. Whilst our client believed that this was a letter of resignation we advised him that expressing an intention to resign is not sufficient to actually resign.
Our client however received no further communication from his son and, as such, wrote to the son to state that if he had not heard from him by a certain date then he would assume that his employment was terminated. We explained to our client that there was a danger that this correspondence could be used to support a claim for unfair dismissal given that it was effectively a proposal to resign or be dismissed.
It was clear that the issues needed to be resolved quickly. We therefore wrote to the son on behalf of the company on a Without Prejudice basis. There was clearly an existing dispute between the parties and we were confident that the Without Prejudice rule would apply. We set out within our correspondence proposals for settlement of the dispute. Our proposals included provision for his employment to terminate.
Our client was keen for this matter to be resolved very quickly and for any payments that were to be paid to his son to be paid in a tax efficient way. We therefore sought additional advice from his accountant. The proposal eventually put to the son includes the division of the financial element with some representing a payment for shares. The remaining amount was described as an ex gratia payment that could be made tax free on termination of employment. It was also important to ensure that any shares were properly transferred in the event that the proposal was accepted. This settlement agreement therefore needed to be drawn up very carefully.
The son sought independent legal advice, as is necessary when signing a settlement agreement, which confirmed that the proposal made to him was fair and tax efficient.
The agreement was therefore signed and the son was no longer an employee of the business.
The client was delighted with the manner in which this matter was handled. Given the family relationship, it was vital that correspondence was not confrontational. Our client has since advised us that following signature of the settlement agreement the family had now been reunited. This was therefore an excellent outcome where we were able to act in the best interest of the client in securing a good financial settlement whilst still ensuring that we did not adversely influence the family relations.
Meet our Employment Team
Geoffrey Ellis – Director
Amanda Pillinger – Consultant
Following a Correct Disciplinary Procedure
Dealing with claims from employees is both stressful and time-consuming. It can also be very costly. In our latest Thomas Guise e-Bulletin we look at how following the correct disciplinary procedures can help protect your business and its bottom line.
Key elements include:
- Preliminary Considerations
- Hearings and Appeals