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Taylors has a longstanding relationship with Voith, a German-owned company, who “cannot recommend Taylors to other employers enough”. The company employs more than 40,000 people worldwide, generates €5.6 billion in sales, operates in more than 50 countries and is one of the largest family-owned companies in Europe. Taylors has acted for Voith’s paper manufacturing UK division, which is based in the North West of England, since 2004, providing corporate and commercial, litigation, property and employment-related legal advice.

The firm is instructed by Voith on a wide range of commercial issues, with the employment team giving advice covering everything from Trade Union issues to Employment Tribunal claims on an international backdrop.

Charlotte Cleary recently joined Voith as a Senior HR Advisor and recently required assistance with a Tribunal claim for unfair dismissal.

On receipt of the Tribunal instruction, Emma Swan prepared a costs warning letter to send to the ex-employee. This letter put the individual on notice that it was unreasonable for her to continue with her claim and that if she did, the Company may pursue her for payment of its legal costs. The letter had the desired the effect and the claim has now been withdrawn in response. Emma’s prompt input saved our client further legal fees in having to defend the Tribunal and all the associated HR and management time and energy. A great result!

Charlotte comments that Emma is “always approachable, commercial and very robust and as well as offering sound employment advice, manages to respond to queries in excellent time to achieve optimum results for the business”.
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‘Case Study’ - Are You Ready to Protect Your Company’s Confidential Information?

Will Clayton has recently been asked to advise a number of clients in relation to potential security breaches by ex-employees which threaten highly sensitive information, central to the running and success of the business.

One of the cases involved a senior member of staff, Mr X with responsibility for key client relationships. Will’s client had reason to believe that Mr X had taken a database of contacts with him when he left the Company which was highly confidential and valuable to our client’s business.

Mr X commenced work for a competitor but had not returned his Company laptop. It then came to light that he was maybe using our client’s information to contact former customers for the purpose of his new employment.

Will received urgent instructions at lunchtime on the day the potential security breach came to light. He promptly prepared a robust letter before action to Mr X setting out the evidence and alerting him to the fact that he was believed to be in breach of provisions in his Contract of Employment and the Compromise Agreement that he had entered into on termination. Will also sent a letter along similar lines to the new employer. Mr X and the new employer were put on notice that our client was considering taking immediate legal action to protect its interests and required all parties to enter into undertakings to confirm that they would return any confidential information and company property and not commit any further breach. The letters were received by Mr X and the new employer the same day.

Within 24 hours of the breach coming to light, the new employer made contact with Will via the company’s Solicitor and confirmed that they had sent Mr X home in order to investigate the allegations and that they would enter into the undertakings requested by Will to avoid legal action. Mr X has also agreed to return his laptop.

Action against Mr X is ongoing.

What do I need to know?

You will find that well-drafted garden leave and post termination restrictions in your contracts of employment will maximize your chances of being in a position to act against ex-employees who leave the Company and threaten to damage your business by working for a competitor or misusing confidential information in this way.

Legal action to seek to enforce restrictions is a complex and expensive business and the speedy and effective strategy adopted in this case was a proportionate and commercial means of achieving the desired result. We would be happy to help if you would like any assistance with reviewing or drafting provisions in your employment contracts or advice in relation to an ex-employee.

Taylors Employment Workshop Programme 2013

Emma Swan is rolling out interactive and practical training on a number of key areas in Taylors’ Workshop Programme.

This Programme is aimed at HR professionals and members of the operational team who are handling these issues on a day-to-day basis. We only have a few spaces left for the April session so sign up now if you are interested or get in touch with Emma if you have any queries about the Programme:

15 April – Handling grievance investigations, hearings & appeals;
17 June – Dealing with performance management issues
12 August – Dealing with absence management issues
14 October – Handling redundancies
9 December – Discrimination awareness

Venue: East Lancashire Chamber of Commerce
Time: 9am to 12 noon
Cost: £75 + VAT per session

Taylors’ client, Micromatic Limited sent a number of its HR and Operational Managers to the workshop Emma ran in 2012. Micromatic is a European-based business who the firm has been working with for many years.

The feedback from Micromatic was that the course was a great investment and one of their attendees reported that it provided “clear and simple examples of various issues” and was "an effective learning tool".

Employment Law Developments

Keep an eye on the numbers – new statutory payment rates to be introduced

• From 6 April 2013 – Statutory Sick Pay will increase from £85.85 to £86.70 with the weekly earnings threshold rising from £107 to £109; and
• From 7 April 2013 – Statutory Maternity Pay, Statutory Paternity Pay and Statutory Adoption Pay will increase from £135.45 to £136.78. The weekly earning threshold will rise from £107 to £109

Can convert recordings taken by employees be relied upon in Tribunal?

Yes. This is an eventuality that many employers find distasteful but a recent case involving an employee who had taken 39 hours of covert recording in support of her discrimination complaint makes clear that covert recordings are not inadmissible simply because they are taken in a discreditable way.

If an employee lodged a focussed application to the Tribunal and provided a transcript together with the recording which could be heard and verified by the employer, relevant material may be admitted in the interests of justice.

What do I need to know?

Don’t be too quick to discount any covert recordings which come to light in the context of litigation as they could be heard and considered by the Tribunal.

Employment Tribunal Reform

The Government has announced that the new Employment Tribunal rules will come into force in Summer 2013 and not April 2013 as planned. The final rules are due to be published in May 2013 and the following key developments are expected to take effect this year:

• Summer 2013 - Compensatory award in unfair dismissal cases to be capped at the lower of one year’s pay and the existing limit; and
• Summer 2013 - Fees – a two-stage fee structure will require Claimants to pay a fee when their claim is issued and a subsequent hearing fee if the claim will proceed to a full Tribunal hearing. Tribunal Judges will have discretion to order the unsuccessful party to reimburse the fees paid by the successful party.

What do I need to know?

There is no change to the current system as yet but any existing employees with a gripe may look to lodge discrimination or unlawful deduction claims prior to the fees and new compensation cap being introduced in the Summer.

Thereafter, these changes may redress the balance so that employees bear some risk/cost in order to bring claims against their employers and they may think twice before doing so.

Your Questions Answered

I am an HR manager in a public sector organisation. One of our employees has submitted a sick note citing the reason for absence as taking time off to care for her husband who has had a heart attack.

The initial HR steer has been to honour the absence in view of the medical certificate but I would like to check this. We have a generous sick pay scheme for three months’ full pay followed by 3 months’ at half pay and this absence could be costly for our organisation.

The employment team says...

You are right to query this. If the medical certificate clearly confirms that the reason for the absence is to care for her husband and it appears that the employee is fit for work, you have grounds to challenge the absence.

We recommend that you invite the employee to a meeting to discuss the medical certificate and the reason for her absence. If she confirms that she is fit for work and there are no issues with her health, you should suggest that in the circumstances, she is unlikely to qualify for contractual sick pay. You could therefore suggest that her options are:

(1) for the employee to return to work; or
(2) for the employee to continue with a period of leave but that it will be unpaid.

You should be aware that employees are entitled to emergency leave in relation to dependants who are ill or injured. However, time off in these circumstances is for a reasonable time in which to make alternative arrangements for replacement care, and does not give a right for employees to take time off in order to provide the care themselves. Plus, there is no statutory obligation for this leave to be paid. This is something to watch out for if you have employees with caring responsibilities for young children or elderly relatives.

If you have any queries in relation to this problem or a question that you would like to ask the team and share with our other readers, please send it to us and we would be delighted to use it in a future edition of Employ!