Managing the Relationship with Your Employees
We advise employers on a wide range of day-to-day issues involving their employees. As an employer, you want your business to be running efficiently and smoothly, and this sometimes means quickly accessing robust and practical advice. Managing the employment relationship is an important part of working life, and staying up to date with what you need to do is essential. We can provide you with guidance and checklists to help your managers support your employees.
We are here to help with all day-to-day employment issues, which include:
- Redundancies and organisational changes
- Recruitment and terms and conditions of employment;
- Disciplinary and Grievance procedures;
- Family Friendly Leave (for example, maternity, paternity, and share parental leave etc.)
- Holiday entitlement and holiday pay
- Managing Sickness Absences
- Managing Poor Performance
- Trade unions, collective disputes and industrial action
- Settlement Agreements
Defending you in Employment Tribunals
Defending a claim has many negative ramifications for your business, not only are there the financial costs, but also management time and potential damage to your reputation.
If you are unable to settle a potential claim, we can ensure that your case is prepared in a costly and timely manner to reduce management time and ensure that your case is prepared efficiently and effectively.
We will always be upfront with you about the prospects of success of defence and explore settlement where appropriate to protect your business.
Mergers and Acquisitions
If you are buying or selling a business, we work closely with our commercial team to ensure that the employment issues which arise are dealt with effectively.
Those employment issues generally arise due to the Transfer of Undertakings (Protection of Employment) Regulations, known as TUPE, which protects an employee’s existing employment rights and terms when a business changes ownership.
TUPE effectively means that the incoming business steps into the shoes of the outgoing owner of the business without there being any impact on employees. This is rarely the commercial reality, and it is important to ensure that the obligations imposed by TUPE are dealt with appropriately to protect both businesses against claims from employees.
TUPE applies to asset purchases as well as to service provision changes and imposes obligations to provide Employee Liability Information (known as “ELI”) and duties to provide information to employees and consult with them.
Failure to comply with these obligations can be very costly to your business, and we can provide you with the legal expertise to support you through the process.
Dismissal of Senior Executives
When you need to remove a senior executive or director from your business, this requires careful handling. There are additional considerations to be had on how it is dealt with. This is due to the fact that they might hold more than one position within your business (i.e., they are a Companies House director as well as an employee and or shareholder), or they might have control over commercially sensitive information.
We have experience advising on the termination of senior executives, from large corporations to family-run businesses and have expertise in the issues which arise.
We will discuss with you the particulars of your situation and advise on the tactics, timing and procedure you can use to remove the senior executive whilst protecting your business successfully. This involves advising on: –
- Restrictive covenants;
- Confidentiality clauses;
- Returning company property;
- How to deal with the discussions with the senior executive;
- What is the most appropriate procedure to follow in the circumstances;
- The risks involved and the management of those risks;
- Formulating settlement offers;
- Protected conversations;
- Messaging internally and externally about the departure of the senior executive.
It is important when recruiting that you comply with various legal requirements, including providing a written statement of the terms of their employment before they start work for you.
This is an ever-changing area of employment, and it is important you have access to up-to-date, commercially pragmatic advice. We have many years of experience advising clients about how to ensure you are fully compliant with the various legal requirements to ensure that your business is not subjected to penalties or expensive litigation.
Protected conversations are “off the record” discussions where there is a proposal for an employee to leave employment even when there are no issues or disputes.
Protected conversations are intended to give employers and employees the freedom to negotiate settlement agreements in the knowledge that their conversation cannot be used as evidence in unfair dismissal claims (provided there has been no improper conduct).
Protected conversations can therefore be started by an employer or an employee.
Such conversations will only remain confidential and will be inadmissible before a tribunal if they do not involve:
- Claims relating to automatically unfair dismissal, such as whistleblowing, trade union membership or asserting a statutory right.
- Claims made other than on the grounds of unfair dismissal, for example, claims for discrimination
- Claims relating to breach of contract or wrongful dismissal (failure to provide adequate statutory or contractual notice, whichever is the greater);
- Improper behaviour by the employer.
What is Improper Behaviour?
There is no definitive definition or description of what would amount to improper behaviour, but it would certainly include the following:
- All forms of harassment, bullying and intimidation (which includes offensive words or aggressive behaviour)
- Physical assault or the threat of physical assault and other criminal behaviour
- All forms of victimisation;
- All forms of discrimination because of age, sex, race, disability, sexual orientation, religion or belief, transgender, pregnancy and maternity and marriage or civil partnership; and
- Putting the employee under undue pressure, which includes
- Not giving them a reasonable period (at least 10 days) within which to consider any offer;
- Informing the employee that any rejection of the offer would result in dismissal;
- The employee threatens to undermine the employer’s business reputation if a settlement agreement were not signed (unless doing so would be regarded as “whistleblowing”).
What is Not Improper Behaviour?
The following is unlikely to amount to improper behaviour
- Setting out neutrally the reasons that have led to the proposed settlement agreement;
- An employer factually stating the likely alternatives if an agreement is not reached, including the possibility of disciplinary action;
- An employer factually stating that if an employee refuses a settlement agreement and any subsequent disciplinary action results in dismissal, then the employee may not be able to leave on the same terms as set out in the proposed settlement agreement;
- Not using the template letters or model agreement set out in the Annexes to the ACAS guide;
- An employer not agreeing to provide a reference;
- An employer not paying for the employee’s independent legal advice on the terms of the settlement agreement;
- An employer encourages an employee, in a non-threatening way, to reconsider a refusal of a proposal.
A settlement agreement (used to be known as a compromise agreement) is a legally binding contract between an employer and an employee. Its effect is that an employee gives up their rights to bring any potential claims before an employment tribunal, usually in return for financial and non-financial benefits (for example, a reference).
A Settlement Agreement is only binding if the employee takes independent legal advice on the terms and effect of the Settlement Agreement. We have a wealth of experience drafting settlement agreements to ensure that your business is protected.
If you would like to contact one of our Employment team directly, please see their details below or click on the Contact Us button.
Dorlee Monschau – [email protected]
Get in Touch
Are you seeking help and advice on employment law?
Whatever employment support you need, please get in touch with our team, who will be able to advise you on the best way forward.