A Compromise Agreement is exactly that - a mechanism through which an employee and employer reach a compromise with regards to the terms of employment. It is the only way in which an employee can settle their statutory employment rights, including any claim for unfair dismissal.

Without such an agreement the employee can still commence a claim in the Employment Tribunal, even if they have promised not to do so.

For a compromise agreement to be valid the employee must receive advice on it from a solicitor acting on their behalf and rhw have a wealth of experience dealing with such cases.

Employment law is constantly evolving with new legislation being introduced regularly and precedents being set on almost a weekly basis.

In an attempt to help all of us keep up to date with employment law, the main changes to employment legislation generally take place in April and October each year. It is part of our job to keep on top of these changes to employment law and to provide commercial advice based on the latest legislation and case law.

Understanding and advising on your rights as an employee is one of the fundamental services that the employment law team at rhw provide, and we stand ready to offer clear and sympathetic advice.

The revised Transfer of Undertakings (Protection of Employment) regulations came into effect in 2006 and are a process that is automatically triggered when the assets of a business are bought or sold and responsibility for employees, both direct and contracted, are inherited by a new employer.

The processes are designed to ensure continuity of the terms of employment from one employer to another, or to provide a forum through which negotiations of terms or disputes can be mediated and resolved.

The TUPE regulations are complex, however rhw have vast experience in this area and the employment law team stand ready to advise and assist you on this matter.

If you have a grievance at work you should raise them informally with your line manager. Many issues can be sorted out with better communication; however, if they remain unresolved you have the right to lodge a formal grievance.

Your employer should have a written grievance procedure but, in the absence of this, your employer should be prepared to follow the recommended ACAS grievance procedure, which should include a right of appeal.

If there are still problems after a grievance has been raised, or if there is a problem with the way in which the grievance procedure has been handled, this might give you the right to resign and claim constructive dismissal and you should seek urgent advice before doing so.

Employment legislation makes it a legal obligation to provide an employee with a written statement of their main terms of employment. Without a written contract the terms of employment are whatever has been agreed verbally or through unenforceable correspondence.

As with any verbal contract, they are entered into in good faith but can often lead to uncertainty and sometimes expensive litigation so It is far better to have all contractual terms contained in a clearly expressed and comprehensive agreement.

The layout and contents of a good contract of employment are constantly evolving and it can be dangerous to rely upon an old precedent. rhw solicitors have vast experience in this area and the employment law team stand ready to advise and assist you on this matter.

When an employee moves on they have the potential to take with them the combined knowledge and experience that they have gained during their time in your employment.

Restrictive covenants restrict what they can do after the end of their contract of employment. They may restrict the employee's ability to contact or do business with former clients, to employ fellow employees or even the type of business the employee can set up or be engaged in.

We have many years of experience in advising on these important clauses, which must be drafted extremely carefully if they are to be valid. We can provide guidance on what restrictions are likely to be reasonable, and when the limits may have been pushed too far, leaving the employer unprotected.

If you have to take a case to an Employment Tribunal, having an experienced team of lawyers working with you can make all the difference.

Although Employment Tribunal's were originally intended to be used without the need to instruct lawyers, over the years employment law and the rules of procedure have become so complicated that the unrepresented party can be at a real disadvantage.

Preparation can often mean the difference between winning and losing and so it is best to come to us as soon as you are considering bringing a claim, rather than just before the tribunal hearing.

As an employee you are entitled to certain rights and protection covering a range of areas. The list of issues that can be taken to an employment tribunal is evolving all the time as new cases come to light and precedents are established and many of these claims do not need a minimum period of employment before they apply.

Some of the more common are:

• Unfair dismissal
• Constructive dismissal
• Redundancy
• Victimisation
• Sex discrimination
• Racial discrimination
• Disability discrimination
• Discrimination on the grounds of sexual orientation
• Age discrimination
• Discrimination for asserting a statutory right
• Re-engagement
• Re-instatement
• Certain personal injury claims arising from employment
• Breach of employment contract
• Less favourable treatment on the grounds of part-time status

Is your confidential information safe with staff?

Due to advances in technology, it can be very easy for your employees to copy and remove confidential information from the workplace.  In addition, many employees have less loyalty to their employers than ever before and, in an information age, it is very true that ‘knowledge is power’.  These factors have combined to create the perfect conditions for employees or former employees to steal information that may be very valuable, not just to you but also your competitors.  As an employer, taking steps to prevent the theft of information from the outset is sensible.

 

When information theft happens 

In a recent survey by IronMountain, a third of European office workers admitted that they had taken or forwarded confidential information out of the office and one in seven had taken confidential information with them to a new job.  It can therefore happen either when someone is employed or when they leave.  However, most employers only become aware that their confidential information is being used after an employee has left and joined a competing business.

 

The different types of information 

There are four different types of business information.  The extent to which you can protect it depends on which category it comes within.  The categories are: 

• trade secrets – this is highly confidential information such as manufacturing processes, designs, secret formulae, information about customer requirements and plans for new products.  These are protected during and after employment, even where the employee is not subject to a confidentiality clause;
• confidential information – this includes information about customers and prices.  Employees cannot use or disclose it during employment but it is only protected after the employment ends if the employee has agreed a confidentiality clause;
• an employee’s skill and knowledge – this includes experience and know-how.  If it belongs to the employee, they can use it as they wish and the employer cannot protect it; and
• public information – this is information that is in the public domain.  It cannot be protected.

 

The importance of a confidentiality clause 

All employees are subject to an implied duty of confidentiality during their employment, which protects trade secrets and confidential information.  After their employment ends, this implied duty only covers trade secrets.  You should therefore ensure that you have an express confidentiality clause.  Normally this will be included in contracts of employment so that it forms part of the contract.  Such a clause can be included in a staff handbook or employment policy but these documents do not usually form part of the contract, which means that they are difficult to enforce.  In addition, employees are less likely to be aware of the clause if it is not in their contracts. 

You should also include restrictive covenants in contracts of employment, which will back up the confidentiality clause.  These will prevent the employee from competing with your business, soliciting your customers or potential customers, dealing with your customers and poaching your employees for a period after their employment ends.  It is also useful to include a ‘garden leave’ clause, which will keep the employee out of the market during their notice period.

 

What a confidentiality clause should cover 

A confidentiality clause needs to be precise and should clearly define what you mean by confidential information.  It needs to be tailored to your organisation and be relevant to your business sector.  It should prevent the employee from using or disclosing information, both during and after employment, and from keeping information or copies when their employment ends.  You can require the employee to inform you if they become aware of other employees breaching confidentiality and you can state that the employee must bring the clause to the attention of their new employer so that they are aware of it. The clause should state the consequences of a breach.

 

Breaches of confidentiality 

If you become aware that an employee is misusing confidential information during their employment, you should suspend them while you investigate the matter and take disciplinary action, which could lead to their dismissal without notice. 

If it happens after termination of employment, you should take legal advice quickly.  The main steps are to gather evidence, put the ex-employee (and their new employer, if relevant) on notice of a claim then seek undertakings from them that they will not use the confidential information.  If they will not agree undertakings, the next stage is to apply to court for an injunction to stop them using the information, and make a claim for compensation or return of the profits they have made from the information.  You also have rights as the owner of a database; if the employee has downloaded your database, you can seek an injunction and compensation or return of any profits.

 

Practical steps

As well as having confidentiality clauses in your contracts of employment, there are various practical steps you can take to protect your confidential information and to ensure that employees know which information is confidential.  They include: 

• marking documents clearly if they are confidential;
• printing confidential documents on coloured paper;
• circulating confidential information in envelopes, files or emails marked ‘confidential’;
• sending key information to a limited number of people;
• keeping confidential information secure, either by locking it away or by using passwords;
• monitoring employees’ use of email and photocopiers;
• watching out for suspicious behaviour, such as an employee sending a large amount of information to a personal email address; and
• inserting personal contacts – such as friends and relatives - in your database and asking them to tell you if they receive information from a competitor.  This will alert you to the fact that your information has been disclosed and will give you evidence for possible court action. 

By taking precautions you are less likely to be the victim of misuse or misappropriation of your confidential information.  If you have any queries on confidential information or restrictive covenants, or you suspect a breach of confidentiality and need to know what to do, please contact us for advice. 

If you have any questions about the matters discussed in this article or would like to discuss any other employment law matter, please call David Denovan Smith or Richard Brown at rhw solicitors on 01483 302000 or e-mail them on