Breaking up is hard to doOn 1 Feb 2001 in Personnel Today Is there any such thing as a simple termination any more? Even the moststraightforward resignation or dismissal can be fraught with implications.David Morgan and Stephen Brown work through some typical situationsScenario 1Ian is a star fund manager for a financial services institution. The companyhas had Ian sign a tightly drafted service agreement containing restrictivecovenants prohibiting him from soliciting clients post-termination and noticeprovisions of three months either way. The company also has the right to placeIan on “garden leave” at any time after notice has been served. Ianis headhunted by a competitor and hands in his notice. The financial pressspeculates he will poach a major client which he developed. DM comments Restrictive covenants are notoriously difficult to enforce in court. Theyshould be drafted in such a way as to protect only the legitimate businessinterests of the employer. There is a risk, when pursuing an employee ininterdict or injunction proceedings that the court will hold the covenants tobe unenforceable, thereby giving the employee free rein. The first step is always to remind the departing employee in writing of hiscontractual obligations and to seek an undertaking that he will abide by therestrictions without need for litigation. Inevitably, this is not alwaysforthcoming. In the above scenario, the company has no non-competition clauseto rely upon. The innovation would be to rely upon the garden leave clause toprotect its client base and to ensure Ian is unable to damage its interests byjoining the competitor early. Having accepted his resignation, the companyshould send him home for the remainder of his contractual notice. If Ian attempted to leave earlier than the expiry of his notice period, hewould be in breach of contract and it would be open to the company to seek aninterdict or injunction immediately from the courts to hold him to his noticeperiod. For this remedy to be successful, however, there should be an expressprovision in the contract enabling the company to place the employee on gardenleave. While garden leave provisions are a useful alternative to restrictivecovenants, a number of points should be borne in mind in light of the recentdecision of Symbian v Christensen, High Court, 8 May 2000]. Worryingly, thatcase held that putting an employee on garden leave in accordance with anexpress contractual provision irretrievably undermined the employmentrelationship and meant the employer could not thereafter rely upon the impliedduty of trust and confidence, good faith and fidelity. The court held that allthat would remain would be the bare bones of a contract of employment and theemployer could not effectively prohibit an employee from working for a competitoror poaching clients during the “garden leave” period since theimplied duty of trust and confidence had disappeared. While this decision is questionable, employers seeking to rely on gardenleave clauses should nonetheless be sure to include an express contractualprovision that employees do not work for others throughout the duration of thecontract of employment. Also the constituent parts of the implied duty of trustand confidence should be expressly referred to in the contract or staff handbook.Scenario 2John works as a production supervisor in an automotive plant. Sue is aclerical assistant in the company’s print room. John has taken an interest inSue although the feelings are not mutual. Both employees have a company mobilephone which is primarily for business use, though a reasonable amount ofpersonal use is permitted. John begins to send Sue text messages both duringand after working hours asking for a date. When Sue tries to let John downgently his text messages become derogatory, threatening and obscene. Sue raisesa grievance with the HR department and produces her company mobile telephonewhich has stored on it the offending messages. The company considers dismissingJohn. DM comments The serious nature of the allegations involving offensive comments of asexual nature will merit disciplinary action being taken against John,including dismissal. Would it be reasonable to base the decision to dismiss John on the groundsof private communications? In a recent Scottish case, MacLeod v Boyce, 31 October 2000, a court foundan individual guilty of contravening section 43 of the Telecommunications Act1984 which makes it a criminal offence to send grossly offensive, indecent orobscene messages by way of a public telecommunications system. The individualhad sent a number of obscene text messages on a mobile phone. In another recentcase a court found an accused in criminal proceedings guilty of the publicdisorder offence of breach of the peace, where harassing text messages had beensent over a mobile phone. The company could, then, be dealing with a potentialcriminal offence committed within the workplace by John. This in itself shouldjustify summary dismissal on the grounds of gross misconduct. While the Human Rights Act 1998 incorporates into UK law the right torespect for private life and correspondence, John would not have a direct rightof action in terms of the Act as the company is not a public authority. Anemployment tribunal is, however, a public authority and, when assessing the reasonablenessof John’s dismissal in an unfair dismissal case, human rights principles maycome in. The tribunal would have to carry out a balancing exercise, with John’srights on the one hand and the company’s business needs on the other. To ensure compliance with human rights and data protection principles, thecompany should have a clearly defined policy on the acceptable use of companyproperty, including mobile telephones. Abuse of the equipment should also bereferred to as an instance of gross misconduct in disciplinary procedures.Employees should be required to consent in writing to the monitoring from timeto time of their mobile text messages to ensure that there are no breaches ofthe acceptable use policy. Scenario 3Jill has worked for a bank for a few years. Recently, she has been absent onaverage one day a month. This is beginning to annoy her manager as it putsadditional strain on the rest of the team. The manager suspects Jill is takingunauthorised holiday because she gives inconsistent reasons for her absence –sometimes illness and sometimes childcare responsibilities. The manager wishesto dismiss Jill because of her attendance record. SB commentsBefore dismissing the bank should make reasonable efforts to establish thereason for Jill’s absences. It must warn her that continued absence will resultin dismissal and give her an opportunity to improve attendance. Some short-term childcare-related absences are permitted under the ParentalLeave Regulations. All employees are allowed unpaid time off to look afterdependants when they fall ill or to deal with an unexpected incident involvinga child during school hours. The amount of time off allowed is limited to whatis reasonable in the circumstances. The right only applies if the employeetells the employer of the reason for the absence as soon as possible. However,the employee does not need to provide any proof of why she needed to take timeoff. Therefore, as long as the time taken off for childcare is reasonable, todismiss Jill could be automatically unfair. The first step is to interview Jill and ask her permission to see hermedical records or undergo an examination by the company doctor. If she refusesthe company can make a decision based on the evidence before it. If thereappears to be no sound or major medical reason for these frequent absences,then Jill can be warned the absences are causing a strain on the rest of theworkforce and if they continue she will be dismissed. It must give her a reviewperiod to see if her attendance improves. If, however, there is a more important medical reason for the absences, theemployer must establish whether it falls within the Disability DiscriminationAct. If the illness has a substantial and long-term adverse effect (thereforeis likely to last for 12 months or more) on Jill’s day-to-day activities, theillness might well be classed as a disability. In that case, the bank must not dismiss unless for a sound and justifiablereason and it must also consider whether by making reasonable adjustments toJill’s working practices her job might be made easier. This might includeshorter hours or time off for treatment. David Morgan and Stephen Brown are partners at McGrigor Donald Comments are closed. Previous Article Next Article Related posts:No related photos.