Best Practice : This case harks back to the Autoclenz case. It is important to remember that the practical reality will outweigh what is expressed in the employment contract itself! Ensure what is written in the contract accurately reflects the reality of the relationship. Fixed term contracts • University of Stirling v UCU [EAT 2012 ]: Employees dismissed on expiry of their fixed term contracts were dismissed for a reason relating to them as individuals and therefore were not “redundancies” triggering collective consultation obligations. • Compare with dismissals for a reason relating to the employer, such as the need of an employer to change its business.
Best Practice : HANDLE WITH CAUTION! This case goes against the previous prevailing view that expiry of fixed-term contracts can give rise to a redundancy situation requiring collective consultation. Key Question: Can the expiry of the fixed-term contract be seen as part of a wider exercise of potential job losses within the business? If YES, then depending on the numbers, collective consultation may be required. Holiday rights Carry over period not indefinite, but must be reasonable • KHS AG v Schulte ECJ 2011 • Employee on long term sick leave must request holiday • Fraser v South West London Mental Health Trust EAT 2011 • …No they don’t says Court of Appeal 2012!! NHS v Larner CA 2012 Carry over only applies to 4 week WTD entitlement Neidel v Stadt Frankfurt am Main ECJ 2012
Restrictive covenants – what happens to these after termination of employment? Towry EJ Ltd v Bennett and Ors [ET, 2012]: • “Solicitation” held to mean: “directly or indirectly request, persuade or encourage clients of a former employer to transfer their business to their new employer” • Solicitation cannot be inferred merely from the fact that a wave of clients move business – this could be down to loyalty. The burden of proof is on the employer to show that it was as a result of “persuasion”. • Contrast with a “non-dealing” restriction – much stronger. • Best Practice : Post termination restrictions are a valuable tool to protect business interests BUT should be handled carefully. They will only be enforceable as long as they go no further than necessary, should always tailored to a company’s exact requirements and reflect the employee’s position and level of seniority. Springboard injunctions • QBE Management Services v Dymoke: Restrictive covenants may not be adequate to protect a business, particularly if the unlawful activity begins whilst the employee is still employed or on Garden Leave. Hence the development of the Springboard Injunction. • In this case the employees were held to have achieved a classic “springboard” advantages by:
• Using their seniority to poach other employees; • Soliciting their Employer’s customers; • Misusing their employer’s confidential information; and • Failing to disclose the unlawful conduct whilst still employed • The employer was granted 12 months springboard relief to remedy the head-start which the employees’ new business had gained through their unlawful actions and covert activity.
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- Fall '16
- Farah Nabilla
- Termination of employment, employment tribunal, unfair dismissal, dismissal