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November 2008
www.adams-remers.co.uk
Cure - dismissals, negotiations, public announcements and more Adams & Remers Solicitors in partnership with the Sussex Innovation Centre
November 2008 www.adams-remers.co.uk
Cure – dismissals; negotiations; public announcements and more
Our SpeakersNichola Marven
Cathy Hoar
November 2008 www.adams-remers.co.uk
Cure – dismissals; negotiations; public announcements and more
The Prevention session – a reminder• Is the employee also a director and/or
shareholder?• Articles of Association• Shareholder Agreements • Directors’ Service Agreements
November 2008 www.adams-remers.co.uk
Cure – dismissals; negotiations; public announcements and more
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
November 2008 www.adams-remers.co.uk
Cure – dismissals; negotiations; public announcements and more
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
November 2008 www.adams-remers.co.uk
Cure – dismissals; negotiations; public announcements and more
Parting company with a senior executive• Possible employment law claims
– Wrongful dismissal (breach of contract)– Unfair dismissal– Redundancy– Discrimination
• Costly and time-consuming
November 2008 www.adams-remers.co.uk
Cure – dismissals; negotiations; public announcements and more
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?
November 2008 www.adams-remers.co.uk
Cure – dismissals; negotiations; public announcements and more
Dismissing fairly
• Who can claim unfair dismissal?– Automatically unfair dismissal
• A fair reasonAND
• A fair procedure
November 2008 www.adams-remers.co.uk
Cure – dismissals; negotiations; public announcements and more
A fair reason• Capability• Conduct• Redundancy• Retirement• Statutory restriction• Some other substantial reason
Do not claim dismissal is for another reason
November 2008 www.adams-remers.co.uk
Cure – dismissals; negotiations; public announcements and more
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
November 2008 www.adams-remers.co.uk
Cure – dismissals; negotiations; public announcements and more
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
November 2008 www.adams-remers.co.uk
Cure – dismissals; negotiations; public announcements and more
Protecting your business interests
• Restrictive covenants• Confidentiality• Garden leave • Pay in lieu of notice• Managing the news - announcements
November 2008 www.adams-remers.co.uk
Cure – dismissals; negotiations; public announcements and more
Without prejudice negotiations
• Is there a dispute?• Compromise agreements
November 2008 www.adams-remers.co.uk
Cure – dismissals; negotiations; public announcements and more
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
November 2008 www.adams-remers.co.uk
Cure – dismissals; negotiations; public announcements and more
Thank you for your time.Nichola MarvenCorporate/Commercial SolicitorT: 01273 403231E: [email protected]
Cathy HoarEmployment SolicitorT: 01273 403285E: [email protected]