JonathanGolden, Author at Goldenleaver
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  Should you be entitled to damages when no loss has been suffered? Sometimes an employee has clients who give their work to an employer only because a particular employee works there, and the employer will lose those clients' custom once the employee leaves. Sometimes that employee has post-termination restrictions that prevent them from still dealing with those loyal clients after leaving, but they continue to deal with them anyway. Strictly speaking, the employer has suffered no loss (because the clients would have gone...

  Silent Witness is a TV show where key characters actively search for forensic evidence.  But don’t take this approach in an Employment Tribunal! I was recently part way through a case where one of my witnesses thought it might be a good idea to find some extra evidence overnight to assist the Judge.  He knew he wasn’t supposed to discuss the case with us or the other witnesses, but didn’t think that he also had to keep mum generally while under...

Have faith - final warnings are useful. They are easily given, difficult to appeal and can be relied on.  A tribunal can't generally look behind a final warning and if an employee with a final warning steps out of line again, even in a relatively minor way, they can legitimately be dismissed for misconduct. But what happens if the final warning was given in bad faith?  Surely, the process is unfair? The answer is:  yes, it is. However it took two appeals and for the...

In negotiating terms, "no" is possibly the most effective argument available to an employer, but as with all powerful tools, it is double edged and should be used with care. We have noticed an increasing trend amongst employers, particularly banks, which are going through a consolidation process, to provide a fixed termination package and settlement terms. They refuse to discuss either - regardless of the individual circumstances. It is a case of "one size fits all" and generally the size of the...

Employers aren't liable for insurance benefits which discriminate against certain employees, especially where there are no alternative insurance products in the market, so long as (and here's the sting in the tail) they've explored what's available in that market in the first place. The case of Hall v Xerox UK Ltd, decided by the EAT, emphasises the need for employers to audit their contracts to make sure they are not responsible to employees for the 3rd party insurance benefits they offer,...

The answer should be 'No', but in the case of Prophet v Huggett, the court did exactly that. This is a case where the enforceability of a non-competition restriction was challenged because of a mistake in the drafting.  The employer produced its own bespoke software and the restriction stopped the employee from working with a competitor "in connection with any products in, or on, which he/she was involved whilst employed".   As no competitor could sell the employer's own software, the non-compete...

Often a small employer faces the dilemma that having investigated an issue of misconduct and carried out a disciplinary hearing, there is no senior manager who was not previously involved in the case available to deal with any appeal. The employer will be concerned that a dismissal will be unfair if it cannot provide an independent appeal process. Equally, the employer is loath to lose control of the process and have someone outside the organisation hear the appeal when they...

Many of us predicted that the introduction of fees in July 2013 for claims in Employment Tribunals would reduce the number of claims being brought. However, none of us anticipated a staggering 79% drop in the number of applications lodged in the last quarter of 2013 (compared with the same period in 2012). Is it good news for employers? Generally it is because troublesome claimants with weak claims who were clogging up the system and wasting management time and cost seem,...

Do the easy relationships and information available through social media limit an employer's ability to enforce restrictive covenants? The good news for employers is that a recent High Court decision says that they do not. The case relates to a recruitment agency which supplies teachers and is therefore of particular interest to the schools and recruitment agencies we represent, but the case has much broader application. The judge held that non-solicitation (i.e. not poaching customers or staff) and non-dealing (i.e. not having...

I am often asked by senior executives to explain how the law allows an ex-employer to stop them approaching or dealing with clients they have known for many years, or, in some cases, from working within the same sector at all.   To make matters worse, they are not even paid for some of the period they are kept out the market. Surely it is a restraint on trade, and unenforceable? The answer is that well drawn garden leave clauses and post-termination restrictive...