Employer's pre-action steps

The following Employment practice note provides comprehensive and up to date legal information covering:

  • Employer's pre-action steps
  • Need to avoid repudiatory breach
  • Response to resignation
  • Garden leave
  • Investigation
  • Forensic IT systems analysis
  • Other matters
  • Interview employees
  • Disclosure before proceedings start (pre-action disclosure)
  • Non-party disclosure
  • More...

Employer's pre-action steps

IP COMPLETION DAY: 11pm (GMT) on 31 December 2020 marks the end of the Brexit transition/implementation period entered into following the UK’s withdrawal from the EU. At this point in time (referred to in UK law as ‘IP completion day’), key transitional arrangements come to an end and significant changes begin to take effect across the UK’s legal regime. This document contains guidance on subjects impacted by these changes. Before continuing your research, see Practice Note: Brexit and IP completion day—implications for employment lawyers.

This Practice Note examines the practical steps an employer should consider before issuing substantive court proceedings, when faced with actual, threatened or suspected unlawful competitive activity by a current or former employee.

Need to avoid repudiatory breach

Where the alleged unlawful competitive active activity is being undertaken by one or more of the employer's existing employees, the over-arching issue for the employer to bear in mind at all times when dealing with the employee(s) concerned is to avoid acts (or omissions) which may give the employee grounds to claim constructive dismissal, ie any actual or anticipatory breach of contract by the employer that goes to the root of the contract so as to be sufficiently serious to justify the employee's resignation without notice. For further guidance, see Practice Note: Constructive dismissal.

If such acts or omissions do occur, the employee may opt

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