Employees who leave their employment under a cloud can cause considerable problems for the employer. If an employer is faced with a departing employee whom it believes has a grudge there are various options which are available to limit the damage which the employee can do.
Dealing with departing employee risks
Remind the employee of their contractual obligations
Prior to the employee leaving, an employer should remind them of their contractual obligations towards the business and more specifically the employee’s ongoing duty of mutual trust and confidence. If the employee has a clause within their employment contract which extends their confidentiality beyond the duration of the employment contract then this should be highlighted as the duty will remain post termination.
Many contracts of employment contain restrictive covenants which will prevent the employee from undertaking certain actions post termination. An example of a restrictive covenant is for an employee not to contact any individual associated with the employer which includes clients, customers, and third party connections such as suppliers for a certain period of time , often for six months. The employer should therefore remind the employee of any restrictive covenants which are contained within the contract of employment.
Restricting the employees access to systems and changing employees duties
If an employee has access to their employer’s systems, which include details relating to customers, clients etc., then the employee’s access should be restricted.
An employer could also reallocate certain duties of the employee during their notice period. However, before taking such action an employer needs to be careful as such a step can only be taken if there is a clause contained within the employee’s contract permitting this.
If such a clause is contained within the employee’s employment contract it would reduce the risk of the departing employee causing damage to the employer’s business. It could also help to avoid any negative impact from employees under-performing or lacking motivation in the final weeks of their employment.
Garden leave
An employer can also place the employee on ‘garden leave’, but again, only if there is a clause contained within the employment contract permitting this. If an employee is placed on garden leave, the employee remains employed and bound by their contractual obligations until their termination date and they will also continue to receive their normal remuneration and benefits. However, they will not be permitted to attend their place of work, contact any customers or clients or perform any duties unless their employer permits them to do so. This will prevent the employee from gaining access to valuable information.
Garden leave should extend no further than is reasonably necessary to protect an employer’s legitimate business interest. For example, if an employee is placed on garden leave for a time period of 12 months but 6 months would be sufficient to protect the employer’s legitimate interests, the additional garden leave would be unreasonable.
Payment in lieu of notice
Payment in lieu of notice is available for an employer to use if a clause permitting payment is included within the employee’s employment contract. If the option is available the employer can pay the employee their notice without the need for them to work during it. This option may not be appropriate however, if the employer does not have the benefit of restrictive covenants as mentioned above and it does not wish the employee to leave to join a competitor immediately.
For more employee legal advice or to comment on this article, please contact us on 0800 024 1976 or via our online form and a member of our Employment Law team will be happy to help.