For me, the most important consideration in any piece of legal work is always to get the best possible outcome for the client. If you can do that and ruffle a few feathers on the other side, then so much the better! When I was thinking about a useful recent case to talk about in this profile, I realised that one where I was acting for the employee actually provided some great tips for employers.
My client was a senior executive who had been pushed out in a management restructure. There had been no formal procedure, but she’d been given a redundancy payment and offered consultancy work further down the line. Given the ‘friendly’ nature of the departure (and possibly to discourage her from taking legal advice) no settlement agreement was entered into. Three months down the line, however, the consultancy work failed to materialise. It was only at that point that the employee came to me. Initially she wanted the business to honour the ‘promise’ of work, but I had to advise that the informal assurances she’d received had never had any legal force. However, when I probed the circumstances of the redundancy it became clear she had a very strong case for unfair dismissal, with damages potentially outweighing the value of the consultancy work in any event.
The problem for her, of course, was the time limit for claiming unfair dismissal. She had left work soon after being told she was redundant, and was not required to work her notice period. There was ambiguity in the dismissal letter about whether she had been dismissed on the leaving date, with notice paid in lieu, or whether she remained employed and, in effect, on garden leave. In the first scenario her any claim to the ET would be out of time and therefore liable to be struck out at a preliminary hearing. On the other hand, a later termination date would mean the claim would be accepted, and, without the time limit defence available to the employer, it would be pretty much indefensible by them.
My initial approaches to the employer’s HR department met with an aggressive refusal to negotiate; clearly they were smarting over the error of wording that had left the business vulnerable to a claim at this late stage. We had to go as far issuing the ET claim, while they continued to maintain their belligerent stance. However, once the employer’s external solicitors became involved, a settlement was soon reached which was very favourable to my client.
The obvious lesson for employers is that you can never be too careful about ensuring that the date of termination is crystal clear. It’s always advisable to have legal advice on any letter of dismissal, to avoid this particular pitfall and others. Of course, the date of dismissal would never have become important in this case if it wasn’t for the dispute over the ‘verbal’ consultancy agreement. We’re finding it increasingly common for parties to wish to agree termination deals in advance of the end of employment, or incorporating some further post-termination engagement between the parties. Obtaining legal advice at an early stage in those situations can help both employer and employee ensure that they actually get what they think they are bargaining for.
Speaking about getting what you bargained for, my life outside the law has been turned upside down this summer as my husband and I have just adopted two children, aged 7 and 3. It’s definitely a ‘in the deep end’ introduction to parenting, but so far we’re having a ball. I’m still trying to maintain some sense of normality, and they’ve coped really well with my return to work and also to my running club. As my 7 year old said when I asked if she minded me missing bedtime to do running “it’s okay, mum, you need the exercise.”
Categories: Team News