We guide senior employees and directors on avoiding problems at work. Our expertise rests in knowing how to resolve employment law disputes and move you to a stronger position. We are realistic and tuned into your commercial realities. We are always discrete.
Why you would want to work with us
We are one of the few London commercial law firms with a strong employee focused team of employment solicitors. The commercial input we can provide can give you the edge in negotiations with your employer. We offer you:
- The experience to assess your situation quickly. We have not got time to waste so will not provide false hopes.
- Many disputes at work start with a disciplinary hearing sprung at short notice or what appears to be a sham selection for redundancy. We can look straight through that and let you know where you really stand.
- Judgement on how to handle your position. In some cases a tactical approach will pay off and we help you make this work.
Solutions we frequently provide
We have explained below some of the common areas where we can add value for directors and senior employees facing a difficult situation at work.
- Reviewing employment terms
- Structuring grievances for maximum effect
- Preparing defences for a disciplinary hearing
- Negotiating exits from employment on good terms with a reference
Reviewing employment terms
We assess the terms and conditions of employment contracts.
We deal with a variety of sensitive areas including:
- Personal guarantees;
- Secondments and transfers abroad;
- Review of employee share awards, options, articles and shareholders’ agreements;
- Rights on termination of employment;
- Changes to the role during employment; and
- Post termination restrictions.
A review of the employment position is recommended if the director is being asked to give a personal guarantee on behalf of the business. This is because the director will face risk and exposure and changes to the employment contract could alleviate some of the risk.
Secondments and transfers abroad
We do look at the terms upon which secondments and transfers abroad are proposed. A review can put the employee or director in a much better position upon return to the UK. For example, it may be the case that continuity under policies such as death in service and permanent health can be preserved following negotiation. Many employers do not offer such benefits without a prod.
Another review area is the tax position and applicability of local taxes and whether they leave the employee or director in a worse position.
Many of our clients when joining as a director also receive shares. We are often asked to explain the implications. We negotiate potentially contentious terms such as drag and tag along provisions and good and bad leaver clauses which could result in the shares being stripped of value on transfer.
Often we are asked about incentive arrangements such as EMI options, alternatives so EMI options, unapproved options and LTIPs. If the award is in a business which is a large corporate or PLC it is often not possible to do much to change the scheme rules but it may be possible to negotiate a better share incentive package of greater value to you.
If the share award is in a business which is a private company you really do need to look carefully at the terms because private companies often do not have the same constraints as public companies and there is a lot more variation.
Termination of employment and/or directorship
Being practical, when taking up a new role, consideration should be given to implications if the role is terminated. We plan ahead for you.
Changes to your role during employment
We advise on the range of events which can jeopardise your position – missing out on promotion, unfair allocation of a bonus, allegations of under performance, redundancy or re-organisation, the list goes on. Whatever the situation, we tell you your best tactics.
Enforceability of post-termination restrictions
If you have created know how whilst in employment which you intend to take to a new role – the intellectual property needs protecting. We suggest ways in which you can operate without fear of the employer making claims against you.
Some post termination restrictions are simply unenforceable. However, some post termination restrictions may well be enforceable and legitimately limit future activities. Within one provision there may be some clauses which are enforceable and some which are not. Our aim is to ensure that the employee understands the risks of an injunction or damages claim if he takes a particular course of action. We fit the latest law to the facts.
Structuring a grievance for maximum impact
Senior employees and directors do use the grievance process to advance their goals. A grievance can provoke an employer into offering a settlement agreement.
In some cases, a grievance is raised where an unfair grading has been given in an appraisal. Often an employer will grade an employee low, knowing that in a “redundancy exercise” they can use that low grade to score that employee for selection for redundancy. An employee is well advised to raise a grievance in that situation to protect his position.
In practice, we find the most successful grievance outcomes arise where the grievance has been well planned. There is a skill to writing a good grievance. A good grievance will highlight unfair treatment. Every grievance is unique to the employee and the particular circumstances, the politics and characters involved.
Preparation of the grievance
We do prepare grievances for employees often working discretely in the background. We steer our clients to the pointers needed for a powerful grievance.
Preparing defences to disciplinary hearings
Employers may initiate a disciplinary process. Sometimes, the disciplinary process is just the pre-cursor to dismissing the employee for minimum compensation. We spot such tactics which we find are surprisingly common.
It is very rare for a disciplinary to be upheld in favour of the employee. However, we find a robust response to a disciplinary process can bring better results than anticipated.
We work with employees discretely in the background preparing them for the disciplinary hearing. We draft responses which are tactically designed to create obstacles for the employer. Often the objective is to encourage the employer to enter into settlement discussions.
Appeal to a disciplinary decision
Employees do have rights of appeal and usually we advise the employee to appeal. The employer knows that the process is stressful and difficult for employees and trades on that. A good result for the employer would be for the employee to resign as this saves the employer redundancy costs under a settlement agreement. Resignation is seldom in the employee’s best interests.
If you are leaving your current role we can negotiate on your behalf. Some clients prefer that we simply act in the background to enable you to achieve the best exit terms.
Employee and director settlement agreements
We have a continuous flow of employees who have a settlement agreement to review. We tell you if the compensation on offer is good enough. If you are happy with the deal then we are authorised to sign a settlement agreement. Our sign off is required to confirm that you have received independent legal advice since this is a requirement for the settlement agreement to be binding.
Employee and director share holdings
Often employers will not want former employees or directors holding shares. There are number of ways this can be achieved. Often the transfer value for the shares is up for debate. There are multiple business valuation methodologies. Which method is best for you depends upon many factors – we guide you.
Employers often link the share value to good and bad leaver clauses. Our aim is to safeguard the value you receive. We will argue your case.
Employee and director share options
Most share option schemes will provide for what happens when someone leaves employment. Typically employee share options will lapse when an employee leaves. Share option terms often allow for an option to be exercised early for “good leavers”. There can be scope for negotiation on who is a “good leaver”.
The dismissal of a director gives rise to additional considerations. In particular, considerations about resigning as a statutory director at Companies House and press announcements need dealing with.
There have been a string of cases in the Employment Tribunal which held that some partners are really employees. The consequences are that when leaving the partnership involuntarily the individuals have been able to claim unfair dismissal.