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    Employment Law (UK)



    If any of our UK members have any employment related issues, will be happy to assist. Please post a thread.

    Abe
    Last edited by Abe; 28-04-2008 at 10:18 AM.



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    Re: Employment Law (UK)

    That is a handy contribution to the forum Abe

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    Re: Employment Law (UK)

    Thanks Mark

    The latest figures from the Tribunals show a marked increase in employment disputes, this as employment laws become even more complicated and mired, together with stiffier health and safety laws and of course the F gas regs.

    Abe

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    Re: Employment Law (UK)

    This is a very generous offer Abe, one I am sure a lot of people will take you up on.

    Thanks Abe.

    Chillin
    IF AT FIRST YOU DON`T SUCCEED.
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    and go get a cuppa

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    Brian_UK is offline Moderator I am starting to push the Mods: of RE Site Moderator : and general nice guy
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    Re: Employment Law (UK)

    Stand back Abe, take your coat off and take a seat - they'll be queuing up directly.

    Nice offer Abe, thanks.
    Brian - Newton Abbot, Devon, UK
    Retired March 2015

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    Re: Employment Law (UK)

    a kind offer abe,i doff my cap to you
    Paul


    "KEEP IT COOL"

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    Re: Employment Law (UK)

    Quote Originally Posted by Abe View Post
    If any of our UK members have any employment related issues, will be happy to assist. Please post a thread.

    Abe
    Well seeing as you have made the kind offer Abe.
    I would like to ask your advise.
    My query may not be strictly Employment Law but it is related.
    I was involved in an Industrial Accident where the company whose premises I was working on has admitted liability.
    Initially I did not intend to claim (I don't like Ambulance chasing).
    But following the accident I met with such a wall of silence and other comments and actions that changed my mind.
    This wasn't a small accident by the way I was Helicoptered from site to hospital.

    The accident will be 3 years ago in June whereas I did not file a claim till the September.
    Basically since my Initial contact with a local solicitor. I have heard nothing and I have not chased it because I was initially advised that it would take 2 or 3 years before it went to court.
    How long should I wait before demanding some action??
    Many thanks Grizzly.
    ps I still work on the site !

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    Re: Employment Law (UK)

    Quote Originally Posted by Grizzly View Post
    Well seeing as you have made the kind offer Abe.
    I would like to ask your advise.
    My query may not be strictly Employment Law but it is related.
    I was involved in an Industrial Accident where the company whose premises I was working on has admitted liability.
    Initially I did not intend to claim (I don't like Ambulance chasing).
    But following the accident I met with such a wall of silence and other comments and actions that changed my mind.
    This wasn't a small accident by the way I was Helicoptered from site to hospital.

    The accident will be 3 years ago in June whereas I did not file a claim till the September.
    Basically since my Initial contact with a local solicitor. I have heard nothing and I have not chased it because I was initially advised that it would take 2 or 3 years before it went to court.
    How long should I wait before demanding some action??
    Many thanks Grizzly.
    ps I still work on the site !
    Hi Grizzly

    First I would like to say is you were very close to the bone. Under the Limitation Act you must bring an action within 3 years of the event/accident.

    Fortunately , you now have an action. I am not sure on what basis you are pursuing this claim, but would feel a "CFA" Conditional Fee Arrangement would be the best as there are no legal fees for you to pay. however the legal fees payable at the end of the case will attract a "success fee"

    Law firms are "notoriously" slow on progressing matters, and you should have been presented with a " client care" letter. This spells out exactly who in the firm is dealing with the matter, who you can complain to, and what their response times should be.

    That aside, this matter should not really go to court, it should be settled out of court, unless you are forced to go to court because you are unhappy with the offer.

    I would say by now the Pre protocol letters should have been served, all the medical reports obtained, the insurance company informed, without knowing how complex the matter is, and how many other parties are involved it is difficult to say how long it will take, but 2 to 3 years seems unreasonable to me.

    I would say, its up to you to push your Solicitors to know where they are with the matter, and keep on top of them. Obtain regular updates. This might just stirrup them into a gallop.

    Regards

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    Re: Employment Law (UK)

    Abe.
    A big help thanks.
    I will get on the phone this afternoon and will post how I get on.
    Cheers Grizzly

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    Re: Employment Law (UK)

    Hi Abe - long time no see (or hear).

    I hope you are keeping well and that your new career is all that you hoped it would be.

    Now my question.

    As an owner/Director of my Company, I am responsible for the well being/safety of my employees, and if anything untoward happens to any of them, I have to take responsibility, no matter what the consequences, or cost..

    Now, as an employee of the Company myself, where do I stand if anything happens to me?

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    Re: Employment Law (UK)

    Quote Originally Posted by frank View Post
    Hi Abe - long time no see (or hear).

    I hope you are keeping well and that your new career is all that you hoped it would be.

    Now my question.

    As an owner/Director of my Company, I am responsible for the well being/safety of my employees, and if anything untoward happens to any of them, I have to take responsibility, no matter what the consequences, or cost..

    Now, as an employee of the Company myself, where do I stand if anything happens to me?
    Hello Frank

    I am fine thank you and I mentioned your name to a former customer who is putting up a brand new pharmacy development this August.

    I told him I know just the man who will take care of the air conditioning installation........

    Anyway, back to your question. Although you own the company , you are after all still an "employee"" only.

    You are a Director who has liabilities as a Director towards your employees.

    The company is a legal entity that stands on its own, it does not belong to you, it belongs to the shareholders.

    As a Director you are also an "employee" and the company owes you a duty of care.

    If you are hurt for instance, the company is liable, and the insurance company will have to fork out damages.

    But..............(always a but) As a Director you will be held responsible for failing to carry out your obligations as a Director as per the Companies Act 2006.

    So, you will be responsible, along with the other Directors for your own injuries!!

    Hope that makes sense

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    Re: Employment Law (UK)

    So that means he can sue himself?

    Do you think he would win?...lol

    Chillin
    IF AT FIRST YOU DON`T SUCCEED.
    DESTROY ALL EVIDENCE THAT YOU TRIED!
    and go get a cuppa

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    Re: Employment Law (UK)

    This is a two edged sword scenario.
    On the one hand Frank could claim he is " merely" an employee

    But dependant upon his role in the company, measured by his "control" ie: ownership of shares, control.......and as a Director, will fall foul of his duties as one.

    Whether he can sue himself???

    Lolllllllll

    He will be suing the company, not himself. His insurance will kick in, but the courts will fine him as a Director for failing to do his duty.


    Directors

    In Item Software (UK) Ltd v Fassihi [2004] EWCA Civ 1244 the Court of Appeal considered whether the defendant, who had been the claimant's sales and marketing director, had a duty to disclose his wrongdoing when he had sought to divert their main contract to a new company of his own. The High Court decision (see Contracts of Employment above) had focused on his role as an employee whereas the Court of Appeal focused on whether this duty extended to his role as a director. The Court of Appeal held that the director had a duty, deriving from his fiduciary obligations, to disclose his misconduct as part of his duty of loyalty.

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    Re: Employment Law (UK)

    Quote Originally Posted by Abe View Post
    In Item Software (UK) Ltd v Fassihi [2004] EWCA Civ 1244 the Court of Appeal considered whether the defendant, who had been the claimant's sales and marketing director, had a duty to disclose his wrongdoing when he had sought to divert their main contract to a new company of his own. The High Court decision (see Contracts of Employment above) had focused on his role as an employee whereas the Court of Appeal focused on whether this duty extended to his role as a director. The Court of Appeal held that the director had a duty, deriving from his fiduciary obligations, to disclose his misconduct as part of his duty of loyalty.
    This is of interest Abe, as I'm about to commence proceedings against one of my former Directors who has resigned and has taken my Company database and is in the process of diverting existing company orders to his new venture.
    There is a lot of paper trail in our system that substantiates this, together with customer statements and supplier evidence.
    Am I wasting my money?

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    Re: Employment Law (UK)

    Quote Originally Posted by frank View Post
    This is of interest Abe, as I'm about to commence proceedings against one of my former Directors who has resigned and has taken my Company database and is in the process of diverting existing company orders to his new venture.
    There is a lot of paper trail in our system that substantiates this, together with customer statements and supplier evidence.
    Am I wasting my money?
    No, you are not wasting your money. Directors have obligations upon them .

    Questions I pose are:

    In his Service Contract did you have any "confidentiality clauses ?

    Do you have any "restrictive covenants? ie: for a period of say one year he cannot trade either near you, or in same business.

    That aside, he is most probably in breach of statutory duties under the Companies Act 2006.

    I will research further case law for you. The case above is fairly recent (2004) and a good precedent I believe.

    Look at his Service Contract as a starting point.

    I think the leading case on this is Facenda Chicken, but that dealt with trade secrets. In your case he has taken away confidential material

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    Re: Employment Law (UK)

    Frank

    Ill have a look into it tomorrow on case law and Directors duties

    A little input from you might help , to assist me focus on the crux of the issue.

    I would be happy to look at the Service Contract for you

    Ill e mail you the transcript of that case as a start

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    Re: Employment Law (UK)

    Item Software (UK) Ltd v Fassihi

    Directors director failing to disclose own misconduct breach of duty of loyalty


    COURT OF APPEAL
    Published 21 October 2004

    Judgment September 30, 2004

    A company director who failed to disclose his own misconduct to the company was in breach of his duty of loyalty to the company because he had tried to divert the company's business to another company established for his own purposes.

    An employee who was paid monthly in arrears and was summarily dismissed was entitled to be paid to the date of his dismissal.

    The Court of Appeal so held, dismissing an appeal by the defendant, Kouroush Fassihi, from a decision of Mr Nicholas Strauss, QC, sitting as a deputy judge of the Chancery Division ([2003] 2 BCLC 1) that he was in breach of a duty to disclose his own misconduct as a director of the claimant, Item Software Ltd, in diverting Item's business to another company that he had established for the purpose, and allowing an appeal from the judge's decision on a counterclaim by the defendant, under section 2 of the Apportionment Act 1870, for the payment of his salary to the date of his dismissal even though the date for payment had not then been reached.

    At the relevant time, a major part of Item's business was the distribution of software products for another company, Isograph Ltd.

    The directors of Item were Mr Fassihi and one other. Mr Fassihi was employed from May 1 1995 under a contract which provided for him to receive a salary of 28,000 a year, payable monthly in arrears on the last working day of each month, terminable on three months' notice.

    The contract expressly provided that Mr Fassihi should not use confidential information belonging to Item for his own purposes.

    In November 1998, Item decided to negotiate more favourable terms with Isograph.

    At the same time Mr Fassihi secretly approached Isograph with his own proposals which involved establishing his own company to take over the contract.

    Negotiations failed because Item insisted on terms that Isograph was not prepared to meet. Isograph terminated the contract by giving 12 months' notice expiring on May 11, 2000.

    Item then discovered Mr Fassihi's misconduct in seeking to divert Item's business to his own company, and he was summarily dismissed on June 26, 2000.

    Item brought proceedings against Mr Fassihi alleging that he was in breach of duty as a director and employee in seeking to divert the contract with Isograph and for pressing his fellow director to take a hard line in negotiations.

    Mr Fassihi counterclaimed for wrongful dismissal and for arrears of salary for the period of 26 days prior to his dismissal on June 26, 2000.

    Item's claims failed in so far as the judge found that the failure of negotiations with Isograph was not caused by Mr Fassihi's misconduct, but succeeded on a further allegation that Mr Fassihi was in breach of duty in failing to disclose to Item his own wrongdoing.

    Mr Fassihi's claim for wrongful dismissal and for payment of salary for the period up to June 26 failed. Mr Fassihi appealed on the issues of disclosure and arrears of salary.


    Mr Nigel Dougherty, instructed by the Bar Pro Bono Unit, for Mr Fassihi; Mr Ben Quiney for Item.

    LADY JUSTICE ARDEN,

    dismissing the appeal in relation to the disclosure issue, said that a director was subject to fiduciary duties and obligations. One of those obligations was the liability to account for secret profits.

    Unlike such authorities as Bell v Lever Brothers ([1932] AC 161), In Re Bhullar Brothers Ltd, Bhullar v Bhullar ([2003] BCLC 241) and Industrial Development Consultants Ltd v Cooley ([1972] 1 WLR 44), this case was concerned not with a duty to account for secret profits, but with a claim for loss resulting from breach of the duty to disclose. That had not been previously considered by the court.

    While it could not be inferred from the cases that a fiduciary owed a separate and independent duty to disclose his own misconduct, there was a fundamental duty to which a director was subject, namely, the duty to act in what he considered in good faith to be generally in the best interests of the company.

    Mr Fassihi could not have fulfilled his duty of loyalty except by telling Item about his setting up a new company to acquire the Isograph contract for himself.

    There were also policy reasons for holding that Mr Fassihi was in breach of his duty of loyalty. If the approach of the law were overly intrusive, legitimate entrpreneurial activity might be discouraged.

    But that would not be the result of holding that a duty of loyalty applied in the present case because on well established principles, Mr Fassihi's setting up of a new company to which the business of Item would be diverted was not a legitimate entrepreneurial activity.

    Moreover, a conclusion that a director owed no obligation to disclose his improper actions would also be inefficient in economic terms. It would mean that the company would have to expend resources in investigating his conduct and that the liability to compensate the company for misconduct would depend on the chance that the company found out about the impropriety.
    The apportionment issue

    On the face of it, the 1870 Act provided that a proportional part of salary might be claimed. Section 5 provided that annuities included salaries.

    Section 2 provided that rents, annuities, dividends and other periodical payments in the nature of income

    "shall ... be considered as accruing from day to day, and shall be apportionable in respect of time accordingly".

    If section 2 applied, Mr Fassihi could claim that part of his June salary which was referable to June 1 to 26, 2000. His employment contract contained no provision expressly excluding the operation of the 1870 Act.

    None of the authorities cited detracted from the interpretation of the 1870 Act that Mr Fassihi could make a time-apportioned claim for his salary from June 1 to 26. Accordingly on that issue Mr Fassihi's appeal should be allowed.

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    Re: Employment Law (UK)

    Ensure you incorporate a Contract covenant this into every employment contract:

    An enforceable non-competition covenant should be included in employment contracts to stop employees who leave taking clients.

    It should also be clear that intellectual property (such as customer databases) remain the property of the company. Contracts should also warn employees that the company regularly monitors individual use of IT equipment, including files accessed, e-mails and internet use.

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    Re: Employment Law (UK)

    Thanks for the effort so far Abe.

    In my particular instance, it may be more appropriate for any further details to be sent to you privately, (washing dirty linen in public) springs to mind.

    I'll PM you

    Thanks

    Frank

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    Re: Employment Law (UK)

    Quote Originally Posted by frank View Post
    Thanks for the effort so far Abe.

    In my particular instance, it may be more appropriate for any further details to be sent to you privately, (washing dirty linen in public) springs to mind.

    I'll PM you

    Thanks

    Frank
    Ive sent you a pm Frank

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