- Matt Gingell
- Updated: Thu, 16th Feb 2017
Problems at work can rapidly spiral out of control. We work out the best options bearing in mind time, cost, legal and other risks.
We provide solutions to the grey areas where a judgement call is needed. Many employers are private companies without dedicated HR support or the issue is complex. Employment law done well requires knowing law, commerce and the personalities. Our advice is nuanced, practical and effective.
Many employees are negotiating settlement agreements, a bonus, or share incentive. We have a specialist team dedicated to the review and negotiation of settlement agreements. We are empathic to our clients’ concerns and understand that we work with you during a very difficult period.
Our clients trust us. We treat everything confidentially. We don’t name clients in our case studies.
Our services for employers:
- The basics – correct employment documentation;
- Management of employees;
- Supporting a dismissal process;
- Equity incentives;
- Appointment and dismissal of directors; and
- Post termination restraints.
Our services for employees:
The basics – correct employment documentation
We review and draft employment contracts for all levels: from interns to the board. We prepare handbooks and advise on best practices and policies. These days, we frequently advise on social media use. Companies want the new relationships social media can create, but also want to protect their reputation.
The work we do for employers includes:-
- Employment contracts and policies – We help employers who find themselves in difficulties stemming from implemented employment documentation. Quite often we also solve issues arising where there is employment documentation but it is out of date or, not that uncommon, no documentation at all.
- Altering terms of employment – Businesses grow and develop, people get promoted or move to new roles. There are many occasions when the employment documentation needs to be altered. We solve the employment law problems arising when there is a change which relates to employees. We clarify when express consent is required and what can be done if an employee objects.
- Protecting intellectual property rights – If employees are engaged to work on creating or developing intellectual property, the employment documentation will need to include assignment of intellectual property rights to the employer. We look at the areas requiring protection and recommend effective legal drafting.
We are commercial people. We advise on commercial contracts that include employment law issues, e.g.
- Transfer of staff under TUPE;
- Consultant contracts;
- Non-executive director contracts;
- Intellectual capital;
- Assignment and transfer of rights in IP.
For employees we review employment contracts to negotiate a better position. We examine payment clauses, confidentiality provisions, post termination restrictions and notice provisions. We have worked with consultants in reviewing consultancy agreements and ownership of IP created before and during the engagement. We have dealt with attempts by employers to vary pay and benefits to the detriment of employees.
Management of employees
Very few businesses operate without the need to manage employees with a careful eye on the legal position. We are proud that very few of our clients face Employment Tribunal litigation as we usually find ways to avoid claims. However, if a claim does arise we do have the litigation expertise to defend most vigorously.
The range of advice offered to help employers manage employees includes:
- TUPE – We identify which employees will be protected under TUPE. We also prepare the communications and support the directors and managers in the consultation process. We do tie up the TUPE aspects with the broader commercial aspects arising on an asset sale, joint venture, outsourcing and in-sourcing exercise.
- Monitoring of employees – The whole position of when an employer can pry into an employee’s dealings is becoming increasingly problematic in the workplace. There are growing responsibilities on employers, the legal framework has not kept up and employees do resist. We support employers in drawing an appropriate line to follow.
- Absence management – Many employers find dealing with sickness and absence difficult to manage. Employers do not want to risk claims of disability discrimination from genuine long term sick employees but on the other hand can sometimes feel the absence is a performance issue. We provide employers with a tool kit from which to organise their approach.
- Resolution of disputes – Many workplace disputes are capable of resolution. Employers find our mediation service helpful if their own in-house team is conflicted or considered too close to the business.
Employers do need to re-organise the business and redundancies do arise. In other cases an employer may need to dismiss for gross misconduct. We support a great many employers through this process. Our aim is to avoid employment law claims from employees and the cost and management time that entails.
The problems we solve typically revolve around:
- Suspension, grievance, investigatory and disciplinary matters – We review the facts and deal with how the employer should manage the situation. We have an eye on how the evidence would appear if the employer had to defend in an Employment Tribunal. Most of our cases do not run as far as the Employment Tribunal. This is because we usually find ways to dispose of the problems much earlier in the process. Having said that, we always ensure that an employer is not vulnerable.
- Conducting a redundancy process – We work with employers to plan how to present the process to employees in a way which will block the risk of unfair dismissal claims from employees. We draft the employment documentation the employer needs and plan the employee consultations for them.
- Termination of employment – We guide employers through how to terminate the employment. We look at issues such as timing, whether to place the employee on garden leave or whether to make a payment in lieu of notice.
For employees, we deal with dismissals which give rise to claims of unfair dismissal, breach of contract and wrongful dismissal. We advise employees on resigning and claiming constructive dismissal.
Following the departure of key employees to a competitor, employers must move rapidly to staunch the loss of customers, IP or other employees. We respond fast, and, if appropriate, quickly obtain High Court injunctions. However, injunctions require evidence, on which we guide our clients.
Other times, we advise clients to obtain undertakings from the departed employees, which is usually a lower-cost solution.
In the last resort, we take breach of contract claims and breach of fiduciary duty cases to the High Court. However, we usually first try mediation, and, although old-fashioned, encourage both parties to listen to each other.
In all employment litigation matters our advice includes:
- A cost benefit analysis;
- Estimates of the costs and timescales for every stage.
One of our specialist areas is how to provide equity incentive share awards to employees effectively.
We look at:
- What type of award is best for the business;
- How to manage TUPE where there are share awards;
- How to manage employee share scheme disputes; and
- How to re-claim the shares in private companies if the employee or director leaves.
Appointment and dismissal of directors
Management of directors to maximise the performance for the business is a core area for us. We offer support with:
- Preparing a robust director’s service agreement;
- Review of the fiduciary obligations for a director; and
- Dismissal of a director. If a director is not resigning voluntarily, in private companies it may be necessary to consider provisions under the articles as well as the service agreement to determine the procedure for resigning the director from office. Our solicitors have the company law experience needed to handle director level dismissals effectively.
We are also able to deal with the position where a director in a private company holds shares and or options. In many cases the employer wants to re-claim equity on leaving – we look at the situation, relevant agreements such as the shareholders’ agreement and explain how that can be done. Our corporate expertise comes into play as often in addition to the employment law aspects there are issues such as shareholder disputes to consider or deadlock.
Post termination restrictions and restrictive covenants
We help employers put in place post termination restrictions which will actually work to protect the business. We review and draft post-termination restrictions to protect our clients from departing employees taking to their new employer:
- Contact lists;
- Trade secrets, and;
- Intellectual property.
We deal with:
- How long the employer can restrict the employee from competing when the employee leaves employment – here we need to look at the seniority and role of the employee. We help with the particular difficulty that arises when an employer wants to update existing post termination restrictions and needs to seek employee consent.
- What forms of anti-competitive behaviour can be stopped – here we look at whether restrictions such as non-compete, non-poaching, protection of confidential information and protection of trade secrets and know how will work in practice.
- If there has been a breach of a post termination restriction what can be done to enforce the restrictive covenant – here we look at whether the employer is likely to be able to obtain an injunction and whether damages are the appropriate remedy.
We advise employees whether the restriction is likely to be unenforceable. We have dealt with attempts to restrict employees from a variety of activities such as joining a competitor, introducing clients and customers to a new employer and soliciting business. We also advise on social media and how that works once the employment has ceased.
Review and sign off on settlement agreements
Over the years we have reviewed and signed off on literally thousands of settlement agreements. The situations vary and the payouts received differ but our strategy remains constant:
- Ensure our clients maximizes his or her financial position,
- Moves on to future employment with a good reference and reputation intact.
In many cases when our clients first approach us a compromise agreement is not on the table. However our tactics and robust response results in an offer of a settlement agreement and pay-out.
- In some cases, we see scope to negotiate a better deal and flag up the issues which may require special attention.
- We have the tax expertise to advise on opportunities for minimising tax liabilities.
- We have sufficiently broad and technical experience to advise on equity incentive rights including the interpretation and application of good and bad leaver provisions.
There are situations where an employer can dismiss fairly and no employment law claim will arise. We look at those cases which are not fair such as:
- Unfair reasons for dismissal – we will assess the strengths of the case and provide an honest assessment. We will also consider whether the employer has dismissed wrongfully.
- Gross misconduct allegations – we do review cases of alleged gross misconduct to determine if the employer has a case. If we find that the employer is not on strong ground we often seek to achieve a negotiated settlement.
Bonus & benefits
We advise on bonus plans, commonly the application of discretionary and performance targets. Many employers want to
- Avoid paying bonuses for under performance.
- Implement share based incentives for employers including EMI options and restricted share awards.
- Review Articles of Association and shareholder agreements, which requires care when employees become shareholders.
The meaning and interpretation of bonus provisions can make the difference between receiving a good bonus and a poor bonus, or if dismissed, no bonus. We review cases usually for senior executives, traders, partners and others who have worked hard to achieve a good bonus which they feel will not materialise. We also advise on claims to claw back bonuses already paid.
An area of dispute often arises over the application of discretion by employers – our latest knowledge of employment law cases will be applied to tell you if discretion has been applied within the confines of the law in your case.
We advise employees on their entitlements to pay under bonus plans. There are cases where employers endeavour not to pay. We have reviewed share awards and associated documentation such as share option agreements, EMI options and shareholder agreements to explain to employees and directors what they mean and in many cases negotiate a better deal for them.
We advise employees and employers on claims of race, sex, age and disability discrimination.
We represent employers at Employment Tribunals. Also we assist employers complete questionnaires filed under the Equality Act. The case studies show we usually resolve disputes quickly, without resorting to the courts.
For employees, we have worked with women who believe they have not had the same pay and promotion opportunities as men. We have advised employees of foreign parent nationals on discrimination because of nationality which is common particularly in the financial services industry in London. Our advice has included grievances, questionnaires under the Equality Act and representation at Employment Tribunals.
Grievance letters and defending disciplinary matters
We work with employees dealing with grievances, and guide them to the outcome they want. We have also dealt with a great many disciplinary matters defending our clients and preserving their reputation and in many cases their jobs.
Some clients face bribery and fraud allegations. We advise what steps an employer can legitimately take, and how to discover evidence.
Other clients face whistle-blowing complaints. Usually we resolve matters, and avoid reports to the regulatory bodies.
The costs implications of employment law claims mean it is usually always in your best interests to seek ways of settlement. But, for those cases where employment litigation is necessary we do have the right experience to bring cases in the Employment Tribunal and other courts.
We represent employees and directors who are threatened with injunctions and claims for damages on alleged breach of a post termination restrictive covenant. There are cases being published by the courts constantly on restrictive covenants which elaborate on this fast moving area of legal practice in which we offer particular in depth expertise.