We act on behalf of employees pursuing claims for unfair dismissal and for employers defending such claims.
Generally, an employee who has completed two years’ employment has the right not to be unfairly dismissed.
A dismissal will be unfair unless the employee was dismissed for a fair reason and the employer acted reasonably in all the circumstances.
If an employment tribunal finds that the dismissal is unfair, it can order the employer to re‑engage or reinstate the employee or pay the employee compensation.
Compensation is made up of two parts, namely a basic award which is calculated upon the employee’s age, length of service and pay, and a compensatory award reflecting the employee’s financial loss which would typically include loss of salary, pension, and other benefits.
We are able to advise upon the strengths and weaknesses of your case, the procedure, strategy, representation at the employment tribunal and settlement negotiations.
We have an excellent track record in defending and pursuing unfair dismissal claims for our clients.
Departing employees are often well-placed to take advantage of an employer’s confidential information and customer connections after the termination of their employment and may attempt to use this information and their business contacts for the benefit of their new employer or in order to set up a rival business.
Employers are entitled to protect their legitimate business interests through the use of restrictive covenants. However, any restrictive covenant which restricts an employee’s activities after termination will be void for being in restraint of trade and contrary to public policy unless the employer can show that:
- It has a legitimate proprietary interest that is appropriate to protect.
- The protection sought is no more than is reasonable.
In general terms, restrictive covenants will only be enforceable if:
- They are reasonable.
- They protect a legitimate interest of the employer, e.g. its trade connections with customers or suppliers, or confidential information or maintaining its workforce stability.
- The covenants do not prevent competition per se. Restrictive covenants that have the sole aim of preventing competition will not be enforceable.
- The restrictions must be no wider than necessary. The restrictive covenant must go no further than is necessary to protect the employer’s legitimate business interests, e.g. by being limited in time.
Whilst restrictive covenants are sometimes seen as being difficult for an employer to enforce, a well-drafted and properly thought out set of restrictive covenants will be enforceable. The worth of an enforceable set of restrictive covenants can be invaluable to an employer, even to the extent that they may make the difference between the business succeeding or failing. For employees, the consequences of breaching a restrictive covenant can include being made subject to an injunction preventing them from competing for a period of time and being ordered to pay damages to their former employer.
We have extensive knowledge of the law and practicalities that apply to restrictive covenants and regularly draft restrictive covenants for inclusion in contracts of employment and advise clients upon their enforceability.
Most employers, at some stage, will have to deal with misconduct and poor performance by a member of staff. When doing so, it is important to ensure that a fair procedure is followed as any resulting dismissal will otherwise almost inevitably be considered unfair by an employment tribunal.
Disputes concerning the conduct of disciplinary and capability investigations and hearings most commonly arise in unfair dismissal claims. We regularly advise employers upon how to conduct disciplinary and capability proceedings, advising on such matters as:
- How much investigation is required
- Who should conduct the investigation
- The employee’s right to be accompanied
- Information to be given to the employee
- How to conduct a disciplinary or capability hearing
- Ill-health and stress
We have many years of experience in advising upon disciplinary and capability proceedings and will advise you upon how to comply with your legal obligations and the Acas guidelines in the Acas Code of Practice on Disciplinary and Grievance Procedures with a view to ensuring that you follow a fair process.
In broad terms, a redundancy arises where an employer decides to reduce a number of its employees, either within the business as a whole, or within a particular site, business unit or job role. Typically, redundancies arise from recession, changes in the nature of products or services, reorganisation, technological developments and relocation of business.
Redundancies arise in one of three circumstances, namely:
- the closure of the business altogether;
- the closure of one of several sites or relocation to a new site;
- diminished requirements of the business for employees to do work of a particular kind (often arising from a reorganisation).
Employees who are dismissed for redundancy may be entitled to a redundancy payment and, in appropriate cases, can claim that they have been unfairly dismissed.
Redundancy is a potentially fair reason for dismissal and can give an employer a defence to an unfair dismissal claim provided they acted reasonably in treating it as a sufficient reason for dismissal.
To avoid claims for unfair dismissal, employers must follow a fair procedure involving adopting a fair selection process and carrying out consultation.
We advise employers upon how to carry out fair redundancy selection and consultation processes. We can provide advice upon considering selection pools, adopting and applying fair selection criteria, how to conduct consultation meetings and the obligation to take reasonable steps to offer suitable alternative employment to employees selected for redundancy.
We advise employees upon whether employers have met their legal obligations and the merits and value of any claims for redundancy payments and unfair dismissal claims.
What are Settlement Agreements?
They are documents which set out details of an agreement reached to settle potential employment claims. Settlement agreements (previously known as compromise agreements) are usually entered into between employers and employees. Commonly, settlement agreements provide for employees to leave their employment upon the basis that the employer pays them a compensation payment dependent upon the employee waiving any potential employment claims.
Why do you need a Solicitor?
For a settlement agreement to be valid in waiving an individual’s right to bring a claim at the Employment Tribunal or other court, it must be in writing and the employee must have received advice from a relevant independent adviser (usually a solicitor or certified trade union officer) on the terms and effect of the agreement and the employee’s ability to pursue claims in an employment tribunal or other court.
The independent adviser must have a current contract of insurance or professional indemnity insurance covering the risk of a claim by the employee in respect of loss arising from that advice.
When are Settlement Agreements used?
They are commonly used to bring an employment relationship to an end in a mutually agreed way. Whilst the initiative for a settlement agreement often comes from the employer, employees can sometimes initiate settlement agreement discussions, e.g. where the employee has decided that they have no future with their current employer and wish to negotiate a settlement which will provide them with a sufficient sum whilst they look for alternative employment.
Settlement agreements are seen as achieving a “clean break”. They can be used to reach a final conclusion for a dispute at work. While settlement agreements commonly provide for the employee’s employment to come to an end, they can also be used to resolve a dispute, e.g. relating to holiday pay which does not result in an end to the employment relationship.
How we can help
We can advise you upon the amount of compensation and any other benefits that are being offered and can negotiate improved terms of settlement, including increased compensation, improved benefits, and reducing onerous obligations, e.g. restrictive covenants. We can also negotiate on your behalf with a view to ensuring that the settlement agreement includes an obligation upon the employer to provide you with a reference which will be important in the future.
Due to strict statutory requirements it is important to ensure that the settlement agreement is legally compliant. We will advise you whether the settlement agreement is legally compliant and also advise you upon the meaning and effect of each and every clause in the settlement agreement. They are often complex and written in legalistic terms - we can explain the meaning and effect of the clauses in a plain and straightforward way.
Why choose Sampson Coward?
Your settlement agreement will be handled personally by David Coward who is a solicitor with over 25 years’ experience of dealing with employment law cases. He has advised upon hundreds of settlement agreements and negotiates improved terms of settlement for employees on a regular basis, resulting in increased compensation payments of many thousands of pounds over the years. As someone who has extensive knowledge of settlement agreements, he not only is able to advise upon clauses in an agreement, but importantly, he is also able to identify the omission of clauses that would be to an employee’s benefit and which would normally form part of a settlement agreement.
We are able to meet clients at our offices in central Salisbury and can also conduct meetings via Skype or Facetime, which is often convenient for those not based locally.
How much does advice on a settlement agreement cost?
The cost of our legal advice depends upon the complexity of the settlement agreement and whether we become involved in negotiating improved terms of settlement. However, it is common practice for employers to contribute towards the employee’s legal fees relating to a settlement agreement and often our fees are paid in their entirety by the employer. In any event, we will provide you with an estimate of our fees at the outset and will update you upon any change to the estimate so that there are no surprises for you relating to our fees.