View the article online at http://citywire.co.uk/wealth-manager/article/a750122
Brewin v Charles Stanley: A leading employment lawyer's verdict
by Elaine Aarons on May 09, 2014 at 10:27
More than 12 pages of the defence are dedicated to the six former employees’ deep dissatisfaction with management strategy at Brewin. They had been in talks with competitors regarding leaving since 2010. Crucially, all six claim they were so unhappy that they would have left Brewin in any event, even if they had not moved to Charles Stanley. Brewin had 10 days’ notice to entice them to stay and failed to do so, save they offered one of the six a 25% pay rise and other bonuses. He still left.
If the six employees can show that they would have left anyway, Brewin’s claim for damages falls away. What’s more, proving the loss was greater because they moved together and not individually would be very difficult. The only issue is one of timing.
To litigate or not to litigate?
The majority of cases settle before reaching court, so it remains to be seen if the case will actually progress that far.
My expectation is that it will not. Brewin will have been embarrassed by the multiple pages detailing the employees’ discontent with its business strategy and the airing of its internal workings. And will Brewin’s senior management really want to be cross-examined?
If Brewin’s aim is to demonstrate to employees they will be sued if they step out of line, this could seriously backfire if it suffers public defeat.
Prevention or cure?
What are the practical implications for teams?
On recruitment, teams should ideally reserve the ability to move as a team if they are not happy. This could be expressly included in the contract when they join, although it is rare to see such provisions.
When individuals are thinking of moving with colleagues, they need to seek advice early, before damaging and discloseable email or text exchanges have taken place and ideally before they have spoken to anybody about their plans. Almost always, by the time they consult a lawyer they have spoken to their closest colleagues and may have breached duties.
They must never send work emails to their personal email addresses.
They should also consider what non-compete clauses will bite both before and after they have left.
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