MW - am I right in thinking your thing is HR / employment? Can I ask you about a hypothetical scenario?
Someone’s been an employee of a company for over a decade. Originally started as a privately owned set up but there have been a number of takeovers / management buybacks / new takeovers over the years. Currently the company is a division of an overseas international megacorp. On each occasion AFAIK all staff have been TUPE’d across.
Now, said employee has a significant client base who are coming to the company for her in particular, not the company. As you might imagine, her contract has all manner of extremely stroppy clauses related to not contacting clients / ex-clients for a number of years after leaving. There may be a sniff of another sale / takeover on the breeze.
What I’m wondering is, at the point of takeover if it happens, this person would be able to say ‘I don’t want to be TUPE’d’ and could then at that point walk out and not be contractually constrained by the restrictions on client contact?
It would depend on the circumstances of both the takeover and the basis of the restrictive covenants.
As always this answer is given on the basis of generalisation & could change dependent on the specifics. In other words, typical lawyers answer - probably not but don't hold me to it.
She can object to the transfer, which would effectively mean that the contract would not transfer to the new ownership (presuming of course the company is bought wholesale and not simply by means of a share purchase - in which scenario it won’t be deemed to have been a change of employer and, by extension, a TUPE). She will of course be unemployed as a result of this action.
That would then suggest that any restrictive covenant would be with the old company, rather than the new, as the latter never acquired her employment rights. If the old employer is ‘out the game’ it would certainly lessen any chance of them seeking to enforce the covenant.
My knowledge of restrictive covenants isn’t the greatest as they’re mostly enforced through civil courts and my job only really deals with employment tribunal matters, but it’s well known that said civil courts are very reticent to enforce RCs unless there’s clear danger to the company’s profitability.
I don't suppose anyone can recommend any cheap [i suppose yorkshire, not london], sensible, employment lawyers out there?
I wanted a quick [say 30 minute] phone call with someone, i'd expect to pay their full hourly rate since I wouldn't expect the chat to lead to any fee-earning opportunities for the lawyer.
Asking on behalf of a family member - basically they're now in the last few days of their notice period [have another job to go to, in both cases we're talking about a fairly casual, not super-well remunerated, part time gig] working for a [very] small business that as of the last few days seems to have ceased trading, their employer IMO has serious MH problems, very unstable [both a cause of & caused by the business failure], has asked my relative to attend a discplinary hearing on their penultimate day of notice to discuss 'charges' that the description 'trumped up' would flatter terribly. i suppose i wanted to ask on my relative's behalf whether the best thing to do would be to simply say 'poke it' & refuse to attend the hearing, which i'd assume can achieve nothing.
Well what’s the danger of getting sacked? Is there redundancy on the table? Or is it more concerns over reference?
If there’s little consequences then I’d say it’s up to her - turn up and play the game or not turn up and tell them she’s not going to give it credence
MightyWhite wrote: Well what’s the danger of getting sacked? Is there redundancy on the table? Or is it more concerns over reference?
no question of redundancy since the person has quit, with an agreed leave date [middle of next week] etc.
i think the concern is that the meeting will be deeply unpleasant, probably plenty of drama, bad language, & general cuntery flying around.
what is the employer trying to achieve? i really don't know. options are i suppose, pure speculation on my part:
(a) ultimately get out of having to cough up the last few days' worth of pay that are due for October [September already paid];
(b) either out of malice or 'public spirit' [not wanting such a supposedly dreadful person to remain in the UK workforce] sour things so badly with new employers that they'll change their mind about the hiring decision
(c) as per (b) but only threatening to do it, hoping that the employee will: (i) have a change of heart & stay [this makes no sense so far into the notice period & with the business looking like it's gone under]; or (ii) i guess hand over some hush money in a brown envelope [this kind of thing regrettably can't be ruled out, we're talking Grade A cunts here]
(d) tee up some kind of civil action for some kind damages - this can't be ruled out since AFAIK they're quite litigious [in a naive way, often on the phone to 'no win no fee' ambulance chaser types], & are currently both the subject and, er, object of at least one each of such cases; and
(f) somehow get the police involved [make it a dishonesty type thing], again either out of malice or public spirit;
(h) there's no clear plan/reasoning at all. can't be ruled out, we're talking about a joker who very recently bought the business & is way out of his depth.
Crikey, sounds a bit dramatic. My ‘knowledge’ falls short of civil/criminal matter but if it’s evidently trumped up you’ve got to suspect that it’s a fishing exercise that’ll very quickly go away once she calls his bluff.
I tend to take the view that attending the meeting is probably for the best. Yes it could be a shitfest but at least you’ll know what you’re up against. Worth remembering also the right to bring a colleague/trade union rep in with her if she is worried about the behaviour.
Is there likely to be a knock on effect with new employer? Eg do references still need to be exchanged or is it a incestuous kind of industry where word would get round?
So on the basis that your relative has quit then my take would be that the employer feels let down (narcissistic personality disorder) and needs retribution - in other words they're fucking nuts!
Everything related to this should be in writing - if it's emails, then make sure they forward them to their home account, otherwise they'll be lost once they leave. Important if it becomes a shit storm down the line and evidence is needed for a legal claim. (been there, done it, it's easy)
Tell the employer that they will be accompanied by an independent person who will observe and take notes. Anybody will do, better if they're not connected to the firm. They don't have to say anything other than a polite introduction and have the ability to counsel or advise as required. Basically your relative needs to control of her side of things.
The last point will spook them and is only likely to make them more nuts/angry but your relative needs to take control of the situation and not lose their cool (which should further spook the cunt). I'd suggest a listen and not contribute approach. Cunts like that want you to agree with them and feel they've won.
Basically they want to bully your relative, feel they are back in control and pour shit on your relative - again nuts!
There's a strong chance they'll not want to pay the October salary based on the 'charges'. If that is an issue and the money is important then the only question I would ask at the end is that the October salary will be paid and if not why. If it's not an issue then sit there and inwardly laugh at the cunt as they bluster about the 'charges'.
i think/hope that this'll blow over, the ower seems to be kicking off with everyone, from suppliers to former owners to landlords, hopefully doing the same with staff is a purely speculative punt that he'll drop if it starts to look tricky. hard not to be at least a little worried though when one's livelihood is involved.