Employer's pre-action steps
Employer's pre-action steps

The following Employment guidance 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
  • Disclosure before proceedings start (pre-action disclosure)
  • Non-party disclosure
  • Search orders
  • Disciplinary action
  • Letter before claim
  • more

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 to accept the employer's breach, resign and claim constructive dismissal. The employee will also readily allege constructive dismissal, as it means that the employee is discharged from any further obligation under the contract, and is thus released from any post-termination restrictions.

For further guidance, see Practice Note: Post-termination restrictions—the effect of repudiatory breach.

Response to resignation

The initial steps that an employer should consider in the immediate aftermath of an employee's resignation are considered in more detail in Practice