Look before you leap - Thoughts from the employment law front line

LOOK BEFORE YOU LEAP

Thoughts from the employment law front line

As employment lawyers our role involves supporting senior executives who are joining or leaving their employers. It is quite surprising how many intelligent senior people do not bother to negotiate or even read their contracts on their way in, considering them to be 'standard'. They are then shocked at how sticky an exit can be. So here are some things to look out for on the way into a job and when leaving a role.

CHECK THE NOTICE PERIOD Consider asking for an asymmetrical notice, whereby the employer has to give you say six months' notice, but you only have to give three months. That way you can exit early if you don't like it there, but if the employer wants to fire you, then you will have more time to find a new role. If the role feels like a bit of a leap of faith, consider asking for an initial fixed term of say 12- 24 months after which rolling notice would apply. That way you have some real job security. In each case, check that a shorter notice period doesn't apply during any probation period. Remember with absent discrimination and whistleblowing claims (and a few other rare claims), you do not benefit from unfair dismissal or other protection during your first two years of employment. This means that your new employer canusually simply dismiss you on notice during your first two years.

TAKE PENSIONS ADVICE With a new role comes a potentially higher salary and a new pension scheme that may operate in a different way (e.g. it may be salary sacrifice). If you leave this advice too late you could end up paying sums into a pension scheme that attract additional tax.

CHECK IF YOUR EMPLOYER CAN 'LAYER' YOU This means checking whether your employer can bring in a manager above your head. Try and ensure that you can only be moved to another role which is consistent with your seniority and that you report to a specific senior position, which cannot be changed without your consent.

RESTRICT ANY MOBILITY CLAUSE Unless you are happy to be moved at short notice around the world, try and restrict any mobility clause so it can only operate with your consent. Conversely, if you want to spend part of the year working outside the UK, check whether this is acceptable to your employer and whether it is feasible for you from a tax and immigration perspective.

UNDERSTAND YOUR NEW EMPLOYER'S APPROACH TO HOME WORKING Whilst many employers are yet to crystalise their policies, there are differences in approaches appearing. If you prefer home working but your potential new employer prefers employees to be in the office more frequently (or vice versa), consider how this could work out long term.

SCRUTINISE BONUSES AND OTHER AWARDS AND BENEFITS Aside from checking the salary level make sure bonuses etc. match what you have been told at interview, also check when the next salary review will take place. If bonuses are target related make sure you understand and negotiate any Key Performance Indicators on the way in. Awards of options or equity can be very valuable and if this is a significant reason for taking the role, make sure you understand how these awards work and in what circumstances they will pay out, or when you may lose them.

PAY CAREFUL ATTENTION TO POST TERMINATION RESTRICTIONS It is a common misconception that non-compete and other such restrictions are unenforceable. This is incorrect. The courts regularly enforce restrictions - even ones that are longer than the contractual notice. The employer has to show that they have an interest to protect and that the restriction is reasonable between the parties and not contrary to public policy. Employers are entitled to protect their confidential information and the stability of their work force and their client base. Provided the employer has not been too greedy in drafting the restriction, it may well be enforceable. If you are, for example, going to bring many new clients to your new employer it may well be worth negotiating that any post termination restrictions would not apply to such new clients during your first two years of employment. Think about your existing restrictions as well – it is worth notifying your new employer of these restrictions so that a strategy can be worked out. If you fail to do so a job offer can be withdrawn.

REMEMBER EVERYTHING AN EXECUTIVE CREATES DURING THEIR EMPLOYMENT BELONGS TO THEIR EMPLOYER It is often tempting to take copies of word product or client lists or other confidential information with you. Many employers have software that can detect the export of information. This makes such misdemeanors easy to trace and gives the employer an opportunity to dismiss for gross misconduct during any notice period. Arriving at a new employer under threat of an injunction from an ex-employer is not a good look on your first day.

LEAVE YOUR OLD EMPLOYER ON GOOD TERMS Try to agree language for announcements and to clients. Complete any required handover and any bits of stray admin. By leaving well you improve your chances of landing well with your new employer.

Meriel Schindler and Libby Payne Withers LLP www.withersworldwide.com/en-gb