Cure - dismissals, negotiations, public announcements and more

November 2008

www.adams-remers.co.uk

Cure - dismissals, negotiations, public announcements and more Adams & Remers Solicitors in partnership with the Sussex Innovation Centre

http://www.sinc.co.uk/

November 2008 www.adams-remers.co.uk

Cure – dismissals; negotiations; public announcements and more

Our SpeakersNichola Marven

Cathy Hoar



The Prevention session – a reminder• Is the employee also a director and/or

shareholder?• Articles of Association• Shareholder Agreements • Directors’ Service Agreements



Parting company with a senior executive• The shareholders’ agreement• Removal of director by shareholder resolution• Current legal position – Companies Act 2006• Director’s fiduciary duties• Director’s service agreement/employment

contract



Is the director/shareholder also an employee?• Director may be employed or self-employed• May not become an issue until dismissal• Control• Mutual obligations to offer and accept work• Financial risk• Employment contract should reflect reality



Parting company with a senior executive• Possible employment law claims

– Wrongful dismissal (breach of contract)– Unfair dismissal– Redundancy– Discrimination

• Costly and time-consuming



Dismissing lawfully• In accordance with the contract of

employment• What does the service agreement say?

– Notice period– Payment in lieu– Garden leave– Other benefits

• What if you dismiss in breach of contract?



Dismissing fairly

• Who can claim unfair dismissal?– Automatically unfair dismissal

• A fair reasonAND

• A fair procedure



A fair reason• Capability• Conduct• Redundancy• Retirement• Statutory restriction• Some other substantial reason

Do not claim dismissal is for another reason



A fair procedure

• Acting reasonably• Statutory disciplinary/dismissal procedure

– Step 1: invitation and statement of grounds for action

– Step 2: meeting– Step 3: right of appeal



Practical tips• Address issues as soon as they arise• Try to resolve problems informally• Keep records of correspondence or discussions

relating to performance or conduct• Beware of emails• Make use of appraisals• Do not sideline individual• Fully investigate• Consider stress and disability



Protecting your business interests

• Restrictive covenants• Confidentiality• Garden leave • Pay in lieu of notice• Managing the news - announcements



Without prejudice negotiations

• Is there a dispute?• Compromise agreements



Summary

• Consider employment status• Look at the contracts• Don’t mix your reasons• Follow a fair procedure• Don’t lose sight of your business objective



Thank you for your time.Nichola MarvenCorporate/Commercial SolicitorT: 01273 403231E: [email protected]

Cathy HoarEmployment SolicitorT: 01273 403285E: [email protected]

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Cure - dismissals, negotiations, public announcements and more