Employment law Q+A

Q. Should I put an employee on garden leave?

A. Garden leave prevents exiting employees from poaching staff and customers and gaining access to confidential information. It is important that employers have a garden leave clause in the employee’s contract, along with restrictive covenants. The duration of garden leave must be reasonable, as the courts have granted injunctions for garden leave in excess of six months and most recently 12 months in a city brokers case.

Q. Can I keep in touch with an employee who is off work sick?

A. Employers have to strike a balance between offering support and keeping contact to a minimum. A good rule of thumb would be a telephone call every two weeks. The employee must not feel an onus to offer input in the workplace. Excessive contact which causes distress could amount to harassment.

Q. When will a restrictive covenant be unenforceable?

A. An employer will be unable to enforce a restrictive covenant in an employee’s contract if he cannot show that the business legitimately requires such protection and the level of protection is reasonable given the interests of the parties and the public interest. Factors to consider are the employee’s rank, customer base, area of operation and access to confidential information.

Q. Can I refuse an employee’s holiday request?

A. The employer can refuse a holiday request by issuing a counter notice. Employers must ensure that this does not breach the Working Time Regulations if employees are unable to take their holidays before the leave year ends. Employees are not legally entitled to carry unused leave forward or receive pay in lieu of holiday pay unless their employment is terminated.

Q. Can an Employee bring a claim for Unfair Dismissal?

A. Employees whose employment began before 6 April 2012 must have at least one year’s service. Recent legislation increased this period to two years for those beginning employment on or after that date. There are a number of unfair dismissal claims where an employee does not need to have the requisite qualifying service such as discrimination claims.

Q. Was the redundancy dismissal reasonable?

A. To ensure the dismissal was reasonable, the employer must show that they consulted affected staff; adopted a fair selection process and took steps to avoid/ reduce redundancies by redeployment.