Employment matters often have a mix of facts and emotions and we believe to get the best solution one should not be allowed to influence the other. Matters can be both complex and sensitive and a good and early grasp of both is key to defining and achieving the best possible legal and commercial outcome.
Our approach is always to listen, collaborate and focus on maximising the support that we provide to our clients. We do not waste time telling our clients what they already know but from the outset focus instead on what our clients want and how to help them achieve it.
Our team has extensive experience of acting for claimants and respondents/defendants. This allows us to spot the key competing issues early and help our clients to protect and advance their position throughout the process.
Our team acts in a wide range of complex matters which include (but are not limited to) the following:
Senior executives often have complex arrangements in respect of pay and/or bonuses. Our team understands the intricacies of these arrangements both in and outside the financial services sector and has experience in advising on the exercise of the relevant discretion which is often at the centre of such disputes.
Breach of Contract
We advise clients on whether or not the employment contract has been breached and attempt to help the parties resolve matters without litigation. Such disputes can range from outstanding commission, notice and holiday entitlement. We encourage clients to ensure that all agreed terms are clearly expressed in writing to reduce the risk of future misunderstanding /dispute.
Breach of Fiduciary Obligations and Board Disputes
We advise directors on their express and implied duties and help them ascertain whether their actions and duties create or are likely to create a conflict of interest. A conflict of interest can result in a board discussion about the removal of a director and we are experienced in representing individual directors in this situation. We also have experience in advising the board on how to prepare, inform, pass and effect any such resolution in accordance with relevant company and statutory rules. We appreciate such matters can often divide a board and in such circumstances are well versed in advising on strategic measures to minimise this risk.
The issue of personal data in the workplace must be taken more seriously given the forthcoming regulation changes which will increase the level of the financial penalty that can be imposed for non-compliance (up to 4% of a company’s global turnover). We also now know that employers can be liable for data breaches caused by a rogue employee. The need for full compliance with the personal data rules has therefore never been greater. We assist clients with all aspects of personal data protection, including making or complying with a Subject Access Request and/or liaising with the regulator.
Discrimination, Bullying and Harassment
We have extensive expertise in advising clients when they have suffered from any form of discrimination, bullying or harassment. Whilst our clients do not always wish to litigate, if they chose to do so we have the experience of acting for and against the largest City and national organizations and are therefore well equipped to either negotiate a confidential resolution or settlement or win at Court or Employment Tribunal.
We know that dismissal of an employee is sometimes the only remaining option for our clients who find themselves having to consider redundancy or taking their employees through a conduct or capability procedure. In these circumstances we understand the importance of dismissing fairly and lawfully, whilst avoiding disruption within the business. Through careful planning we work alongside our clients to find pragmatic and commercial solutions that achieve their desired outcomes by ensuring that such processes are conducted fairly and in accordance with legal obligations. However, sometimes people are dismissed for no fair reason and/or no fair process is followed. We often act for individuals in these circumstances to robustly negotiate the terms of any exit to ensure an appropriate settlement is reached, or (if necessary) adequate compensation through litigation in the Courts or Employment Tribunals.
Diversion of Business
We help clients establish whether or not an individual or team diverted business opportunities to another business before the employment relationship ended. We can assist with tracking such diverted assets and have been successful in obtaining court orders restraining further breach and requiring former employees to account for the loss of profit resulting from their actions.
FCA Regulatory Issues
We work alongside our regulatory colleagues to ensure that a joined up approach is adopted when advising clients accused of improper conduct or caught up in a disciplinary or regulatory investigation. We have the experience to help our clients minimise the level of regulatory or disciplinary sanction; protect them when they are required to participate in a regulatory or internal investigation; and have helped a number of FCA regulated companies and individuals walk away with a “clean slate” from both a regulatory and disciplinary perspective (in particular when they have been identified as potentially culpable in complex investigations like those into LIBOR).
We know that employment litigation, whatever the outcome, is a costly experience which can have a reputational risk. Our experience in acting for both employers and employees means that we are well placed to advise our clients on both their legal and strategic options. We work alongside them to explore ways to achieve a swift and cost effective resolution to potential employment disputes and advise them on measures that will stand them in the best stead in any subsequent litigation (because sometimes, no matter how reasonable or pragmatic a party has been, litigation is unavoidable).
Recruitment and Promotion
We take the time to get to know our clients’ circumstances so that any new employment terms take into account what has been agreed, as well as protecting against unexpected developments. The new Senior Managers Certification Regime will also make reviewing the employment contract even more important, given that the ‘Responsibilities Map’ and ‘Statement of Responsibilities’ will impose additional liabilities on all senior managers and companies within scope.
Whether the restrictions in contracts of employment or other agreements (such as LLPs or LTIPs) are enforceable is very much fact dependent. Many post-termination restrictions are not considered in the context of individual roles and circumstances and can be badly drafted. We frequently advise clients on the enforceability of restrictions, as well as representing them in subsequent litigation regarding their enforcement. Our advice always focuses not only on the legal strength of our client’s position, but also on how the issues may be resolved from a strategic and practical point of view.
In order for a settlement agreement to be valid, it must be signed off by a lawyer. If we are instructed to do this, we take the time to analyse an client’s position and bargaining strength against any offer that has been made to ensure that the agreement is tailored and fair. If it is, then our clients walk away with the agreement signed. If it is not, then we conduct negotiations in a way which often results in our clients securing favourable terms.
If an individual moves into a new role and takes colleagues with them, it is possible that this may result in allegations that they have poached employees and clients, breached various duties and/or misused confidential information. This may sometimes result in costly High Court litigation. We have experience in assisting individuals and companies in such matters, including negotiating a commercial resolution with past employees and employers and obtaining assurances from new employers to help resolve these disputes.
Technology and Social Media
Employees’ (mis)use of computer equipment and social media can have a serious impact on a business. It has the risk of bringing a business into disrepute with a single security oversight or defamatory remark or expression of unorthodox views on a public platform. Well drafted policies on what to do in such circumstances, which are tailored to the needs of each individual business, are key to ensuring that such employees can be dealt with in such circumstances and an employer is distanced from their actions and/or views. However, when things go wrong we also have the experience of advising companies in respect of appropriate sanctions against employees who have been involved in security breaches.
We help employees when they are concerned about wrongdoing or malpractice in the workplace and are considering blowing the whistle, by reviewing the circumstances to ensure that they blow the whistle in a manner which will give them protection under whistleblowing law. We also support individuals if they consider that they have been disadvantaged or dismissed as a result of blowing the whistle and ensure that any reputational issues that arise once the whistle has been blown are addressed. We also help employers identify whether a protected disclosure has been made and thereafter navigate their responses to any such disclosure, as well as defend employers in whistleblowing proceeds in Employment Tribunals.