Early Reconcilliation advice

gm0

You don't have a legally watertight place to stand and just unilaterally assert that you don't (now) like the employment contract as a crimp on what happens next.  They likely don't have a legally watertight restrictive contract either.  But they have something.  And the anchor is likely that - and not zero - for a negotiation. Nobody wants lawyers involved on the clock.

If your daughter is going to work at a client (of the old company) as contractor/perm - then this is unfortunate for a *very* small company supplier with few clients - bigger corporates just have to shrug this off.  And you may have to sensibly navigate this clause with new employer and old.  Ultimately (usually) everyone wants to work in this town again next year.  Not  helpful fighting expensively about it.  Clients also don't tend to rehire companies that recently sued them.  The hypothetical client looking to employ your daughter direct vs from old company has some leverage your daughter lacks to make a request to "release" the legal jeopardy (absence of objections to what is happening) - if the clause even applies to the scenario which it may well not.  Just business.  Move on.  Existing contract restaffed, but runs off, ends naturally or eventually terminated.  Daughter hired.  Old boss a bit grumpy (with the client for doing it).  And life goes on.  All behaved professionally.  Nobody stropped or wasted tens of thousands on lawyers.

By contrast if the plan is to setup her own supply business in direct competition with the other one and her old boss - then it would be wise to be demonstrably squeaky clean (and signed off upon departure) as to the return of all intellectual property and confidential records.  Lists of customers, potential customers and their contact info, prices, contract terms, prices, strategies etc. etc.  Anything not in your head. The more woven personal and business - phones, clouds etc. were - the messier this often is.  If the first client is an existing live contracted client of the old business - then this is *provocative* behaviour.  A scenario that more than staff moving around - provokes legal action for violation of non-compete.  Usually with corporate slander / bad mouthing and IP theft added to the attack.  Many people planning to do this exact thing.  Run off their non-compete via the first scenario for a bit first which provides a fire break as well.

Asymmetry of resources is how this process usually achieves its deterrrent effect - not legal certainty a priori.

So talking to them rather than about them (and their paperwork) is likely to be more productive for all (bar lawyers)

My 2p anyway

Hoenir

Undervalued said:

Mr_Benn said:

Merry Xmas guys, and thank you for the help. 

In the contract it says :  " Non-Solicitation and Non-Compete : for 12 months following the termination of the agreement ,may not solicit, accept, or or deal with, in competition with the Company, the custom or business of any Customer with whom you have had substantial personal contact or dealings on behalf of the Company during this Agreement.
You may not directly or indirectly compete with the business of the Company during the period of your employment and for a period of 12 months following termination of your employment. To this end, you may not set up a business within a 5-mile radius 8 of the Company’s registered address during this period without prior written consent from the Company’s owner. "

From what I have read the Government have agreed to set a maximum of 3-months non-compete, but they havent got round to make it law yet. 

As a separate note, her employer (there was only her and my daughter in the company) has now contacted her to say an appeal meeting has been arranged, where her boss will chair the meeting and her Mum will take minutes. No mention of apologising for not offering a chance to appeal (beep beep, company reversing !) . As we have informed her employer that she does not want to return, we will advise her we wont be attending, but as no compensation offer has been given we will be progressing it legally. (Acas).
Im going to see if I can get some legal advice this week, and either way then apply for to Acas for Early Reconciliation .

Be very careful. Take proper advice before proceeding along the lines you are proposing.

Generally it would be best to follow the appeal process. What you are planning could easily be interpreted as a resignation. The argument would be that the appeal may have been successful in which case she would still be employed.

Have we heard the full story ?  From the opening post seems that due process hasn't been followed at all. At the moment seems more akin to making (legal) threats to achieve a favourable outcome. Rather than negotiate a mutually acceptable settlement. I'd expect the employer to have already sought advice on the matter. 

Undervalued

Hoenir said:

Undervalued said:

Mr_Benn said:

Merry Xmas guys, and thank you for the help. 

In the contract it says :  " Non-Solicitation and Non-Compete : for 12 months following the termination of the agreement ,may not solicit, accept, or or deal with, in competition with the Company, the custom or business of any Customer with whom you have had substantial personal contact or dealings on behalf of the Company during this Agreement.
You may not directly or indirectly compete with the business of the Company during the period of your employment and for a period of 12 months following termination of your employment. To this end, you may not set up a business within a 5-mile radius 8 of the Company’s registered address during this period without prior written consent from the Company’s owner. "

From what I have read the Government have agreed to set a maximum of 3-months non-compete, but they havent got round to make it law yet. 

As a separate note, her employer (there was only her and my daughter in the company) has now contacted her to say an appeal meeting has been arranged, where her boss will chair the meeting and her Mum will take minutes. No mention of apologising for not offering a chance to appeal (beep beep, company reversing !) . As we have informed her employer that she does not want to return, we will advise her we wont be attending, but as no compensation offer has been given we will be progressing it legally. (Acas).
Im going to see if I can get some legal advice this week, and either way then apply for to Acas for Early Reconciliation .

Be very careful. Take proper advice before proceeding along the lines you are proposing.

Generally it would be best to follow the appeal process. What you are planning could easily be interpreted as a resignation. The argument would be that the appeal may have been successful in which case she would still be employed.

Have we heard the full story ?  From the opening post seems that due process hasn't been followed at all. At the moment seems more akin to making (legal) threats to achieve a favourable outcome. Rather than negotiate a mutually acceptable settlement. I'd expect the employer to have already sought advice on the matter. 

No but then we never do in these threads. There are two sides to every story!

As I indicated in an earlier post, the days of having to follow a precise procedure or the dismissal would be automatically unfair are gone.

Yes a tribunal would still expect the employer to make a reasonable layman's attempt at conducting a fair process but these days the rights or wrongs of the matter itself are paramount. Winning on a technicality but being awarded zero compensation can and does happen far more frequently than was once the case.

Most likely (based on a limited third hand account of one side of the story) an adequate process hasn't been followed. However, was dismissal legally justified? To dismiss fairly (in law) an employer needs a "reasonable belief" that the misconduct took place and if so dismissal needs to be within the range of sanctions a "reasonable employer" might choose. That is all.

Mr_Benn

Just an update as nothing has been settled yet. Cutting to the kill, the employer has suddenly (but not surprisingly) got a solicitor involved. A July date has been set for the Employment Tribunal.  A week ago, we were sent an offer of £2,000 to settle. I was chuffed, but daughter was swayed by Mrs Benn, and went back for more money and for the contract to be voided.  We were then forwarded an email from ACAS,(but no call to advise us)  to say they wont pay anything more than £2k, and wont void  the contract. The email from their solicitor said we have 2 hours to decide !   
Two days later we get an email directly from the Employers solicitor, basically trying to intimidate us, and quoting possible costs of £20,000 when we lose.  
I know we need to get a solicitor to help, but where small figures are involved (compensation probably £6k max) , we have tried to manage it ourselves until now.  Without somebody recommending one, and knowing their charges, is difficult. It appears that the Employment Tribunal is designed to help people who cant/ dont get a solicitor. 

My quick question is should the employers solicitor contact us direct , or should it all go through ACAS ?
I am happy to put most of their emails details on here if it helps (obviously no names etc). 

Happy Easter all. 

thebrexitunicorn

A costs warning letter must be sent to you directly, it can’t come through Acas.  You can discuss the letter with your conciliator though, they may even have been sent a copy.  

Mr_Benn

So, we finally had an offer from the Employer, which we are happy to accept. However, I thought ACAS then draw up the contract for both sides to sign, but we have had one from the Employer which ACAS are happy to just forward to us.  We have to get someone Legal to have also read through the contract.  As we have not used a solicitor yet, my question is does the Emploer have to legally pay for our costs to get someone Legal to check it for us ?  Most google results say 'usually' , but we want to know exactly where we stand with this .    Thanks.

thebrexitunicorn

An Acas COT3 agreement does not require legal advice in order to be legally binding.  It’s unusual for employers to pay for advice (unlike a settlement agreement where legal advice is obligatory in order for the agreement to be binding ). 

It’s also quite normal for draft wording to be proposed by one side (usually the employer).  If you want to propose changes to the wording  or have questions talk to your conciliator. 

Undervalued

Mr_Benn said:

So, we finally had an offer from the Employer, which we are happy to accept. However, I thought ACAS then draw up the contract for both sides to sign, but we have had one from the Employer which ACAS are happy to just forward to us.  We have to get someone Legal to have also read through the contract.  As we have not used a solicitor yet, my question is does the Emploer have to legally pay for our costs to get someone Legal to check it for us ?  Most google results say 'usually' , but we want to know exactly where we stand with this .    Thanks.

If it is a settlement agreement (i.e. not a COT3 via ACAS) then the Google results you mention are correct!

As said above, for a formal settlement agreement you must have received legal advice and it is usual (although not obligatory) for the employer to pay an agreed sum towards this.

Ultimately it is the bottom line that counts and if they pay, say, £500 legal costs then this is part of their total bill so their offer has probably been reduced to allow for this!

The solicitor must ensure that the document is correctly worded and that you understand it and the consequences of signing. If you want the solicitor to negotiate on your behalf that will cost extra and very few employers will pay that bit.

To repeat, if it is a COT 3 then legal advice is not required as ACAS (who are supposed to be a neutral party) are responsible for ensuring that both sides understand what is being agreed.

Mr_Benn

Thanks Undervalued.  It is a COT3. Acas didnt make it clear the difference between the two.

Im still nervous about signing the COT3 without legal assistance. ie not just telephone assistance which is all my home insurance are offering,  in case the Employer comes back at us afterwards (we dont trust them), especially as they have drafted the COT3 which ACAS have just forwaded to us.  The problem is , on a payout of £1,500 paying a solicitor several hundred pounds seems unfair, but  I guess we have to make the call. 

If anybody can recommend a low cost workplace Solicitor firm that would be ideal !

Undervalued

Mr_Benn said:

Thanks Undervalued.  It is a COT3. Acas didnt make it clear the difference between the two.

Im still nervous about signing the COT3 without legal assistance. ie not just telephone assistance which is all my home insurance are offering,  in case the Employer comes back at us afterwards (we dont trust them), especially as they have drafted the COT3 which ACAS have just forwaded to us.  The problem is , on a payout of £1,500 paying a solicitor several hundred pounds seems unfair, but  I guess we have to make the call. 

If anybody can recommend a low cost workplace Solicitor firm that would be ideal !

Low cost and Solicitor don't really go together I'm afraid!

Will your telephone advice service not let you email them the document so that you can then discuss it with them on the phone?

ACAS should provide neutral advice about the technicalities of the document and clarify any points you don't understand. What they can't do is act for you or advise you if the amount on offer is the best you are likely to get. 

Generally COT3 and settlement agreements are largely off the shelf documents with fairly standard terms. Obviously, in theory at least, everything is negotiable but this only really happens at the very high end. There are normally clauses regarding confidentiality (both parties) and it will seek to rule out all further claims (as far as the law allows).