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the restraint. The employee had established a
shares in a competitor, and outlined whether it was necessary to consider the position of an employee as someone at her level of seniority would frequently be subjected to conditions that she needed to hold shares in the organisation that employed her. Therefore, this prohibition would have restricted her ability to work following termination, which was too wide a restriction. Although the respondent argued that prohibiting the employee from maintaining minor shareholdings was not the case, the court held that the phrase “engaged or be concerned or interested in” represented a standard precedent in drafting non-competition clauses and included a prohibition on maintaining shareholdings.
(HR) representative. The initial version of the report found “no evidence to suggest” that the claimant’s conduct amounted to ISD; however, the final version removed this conclusion following advice from external solicitors who stated that an investigation report should not set out its own evaluative conclusions. The claimant was later dismissed for gross misconduct but appealed. Although the external barrister who heard his appeal read the initial report in its entirety and considered the omissions, he upheld the decision to dismiss. As a result, the claimant proceeded to claim unfair dismissal but the ET, although concerned by the redaction to the initial investigation report, ultimately accepted the investigating manager’s findings. However, on appeal the EAT overturned this decision and remitted the case to a fresh tribunal. The EAT found that the report had been heavily influenced and amended by the university’s HR and in-house legal departments, meaning the standards of objective fairness had been compromised. Additionally, the ET had failed to consider why the investigating manager had seemingly changed his view to the claimant’s detriment. Once remitted, the new ET once again ruled that it had been a fair decision to dismiss the claimant. The ET held that the investigation manager had changed his view on advice from solicitors and, on the balance of facts, the university had been correct to leave conclusions on the claimant’s conduct to the disciplinary tribunal. Despite this, the claimant once again appealed on the ground that the ET had not adequately addressed the arguments he’d put forward nor provided adequate reasons as to why they had been rejected. However, the EAT disagreed and held that there was no suggestion that any evidence had been withheld from the investigation report, nor that any of this evidence had not been put before the disciplinary panel that had made the decision to dismiss the claimant. This decision highlights that if an investigation report is altered in any way following input from HR or legal advisors, tribunals will always look to ascertain if these changes were necessary and why they were made. Organisations will also need to be able to provide clear justification for any alterations, as the respondent was able to do here. n
successful career as an investment banker. She was seen as a “considerable prize” by the respondent which had offered her a higher salary than consultants at her level would usually earn and had promoted her several times. Following her resignation, the respondent terminated the employment with immediate effect as she had disclosed that she wished to go and work for a competitor based in New York. The respondent issued proceedings seeking an injunction, arguing that she would be in breach of her six-month non-compete clause within the contract of employment. Her contract instructed that she could not, directly or indirectly, “engage, or be concerned or interested in” any business that was in competition with the respondent for a period of six months. An additional clause stated that if any of the restrictions or obligations outlined were held to not be reasonable for the protection of the “goodwill and interest of the Company”, but would be valid if part of the wording was deleted, then the restriction would apply following the modifications. Tillman argued at the High Court that the clause was not enforceable as it was wider than reasonably required for the protection of the respondent’s legitimate business interests. A particular point of contention was not being able to be ‘interested in’ a competing business. However, the court held that it was not wider than reasonably necessary, as it did not prevent her having a minor shareholding in a competing organisation. Upon appeal the Court of Appeal overturned the decision finding that the non-compete restriction was too wide as it was not possible for a shareholder within a company to be not ‘interested in’ that company. Severing the words ‘interested in’ was also not possible as the clause represented a single covenant; it had to be read in its entirety in order for it not to be changed beyond what was intended. This was appealed to the Supreme Court which held that though the words ‘interested in’ did prevent the employee from having a minor shareholding in a competing company, they could be severed. However, the court considered whether it was reasonable for a restrictive covenant to prevent an individual holding
...able to provide clear
justification for any alterations...
Dronsfield v University of Reading
In this case, the EAT decided that an employee was fairly dismissed for misconduct, despite content being removed from an investigation report that expressed views in their favour. The claimant worked as an associate professor for the University of Reading. His appointment was subject to a governing statute, which stated that he would only be dismissed for behaviour of “immoral, scandalous or disgraceful (ISD) nature” that was incompatible with the duties of the office or employment. As part of their employment, all university staff were provided with guidance which explained that if they entered into a relationship with a student, they must not be “professionally involved with assessing or examining that student” and inform their head of department. Allegations were later made against the claimant, that he’d been involved in a sexual relationship with a student without reporting it and had, therefore, abused his position of power and breached his duty of care. An investigation report into these allegations was produced by a manager in conjunction with a human resources
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| Professional in Payroll, Pensions and Reward |
Issue 57 | February 2020
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