8035 CMM_Little Book SENIOR EXEC_INVESTIGATIONS_2019

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8035 CMM_Little Book SENIOR EXEC_INVESTIGATIONS_2019_FINAL WEB

the little book of senior executives disciplinary investigations and exits

are you sure this will make me a good leaver?

welcome legal protections facing allegations of wrongdoing 2 3 5 what happens when things go wrong 6 investigations what to expect possible sanctions appeals tactical considerations 8 11 13 14 16 settlement discussions and agreement 17 key points to remember… about the team 20 22

welcome being involved in an investigation into alleged wrongdoing can be very stressful for a senior executive, as can any subsequent disciplinary process and potential exit. this little book focuses on the key legal and practical issues to help you through the process. it features the work of talented illustrator, david orme. very best wishes the team at cm murray llp info@cm-murray.com | +44 (0) 207 933 9133 this booklet is only a brief overview of relevant english employment law and is for general purposes only. specific legal advice should be taken on particular circumstances – please do contact us and we would be pleased to help you. information is correct as of february 2019. 2

legal protections if the disciplinary investigation is malicious, or in retaliation because you made complaints about discrimination or other wrongdoing, you may have a legal claim. 3

this must be a dog whistle! breach of legal obligation? miscarriage of justice? health and safety? woof ? 4

facing allegations of wrongdoing what are the key areas of risk for a senior executive? typical concerns raised by an employer can include the following:- • misconduct, including bullying and or harassment allegations • performance • regulatory or criminal issues sometimes these are triggered when employers investigate reports made by whistleblowers. 5

what happens when things go wrong your employer may commence an investigation and then a disciplinary process, usually set out in the employment contract or staff handbook. your employer should also act in accordance with the acas code of practice on disciplinary and grievance procedures and the acas guide ‘discipline and grievances at work’. these documents contain useful, practical information about what the process should be and what you can ask for, including witnesses, information and documents. 6

are you from acas? yes i’m from the against - copious acronyms - syndicate 7

investigations your employer may invite you to attend an investigation meeting. there is no statutory right to be accompanied by a work colleague or trade union representative at an investigation meeting (although this is not uncommon in practice). your companion can present your case, ask questions and make representations on your behalf, but cannot answer questions for you. a companion is often also helpful as a note-taker, a witness, and moral support. you can ask to be accompanied by a legal representative but there is no right to insist on this. 8

disciplinary action you may be invited to a disciplinary meeting. there is a statutory right to be accompanied by a work colleague or a trade union official at a disciplinary meeting, but no absolute right to be accompanied by your lawyer. criminal or regulatory consequences flowing from the disciplinary may be a good reason to insist on bringing a lawyer to the meeting and it is sensible to take legal advice first. 9

i like what you’ve done to this room, it’s very ‘oppressive’. 10

what to expect you should be advised the nature of the allegation you are being investigated for, and have the opportunity to properly present your defence at any disciplinary hearing. ask your employer for any documents you require for this. you are also entitled to call relevant witnesses and ask them questions, although this process is frequently done in writing rather than in person. 11

you asked me once winston what was in room 101.... is this my new office? 12

possible sanctions there are a number of possible outcomes to a disciplinary process which may include (but not be limited to): • no sanction; • an informal sanction; • a written or final written warning with related penalties, e.g. a possible demotion or a reduction in bonus; • dismissal with notice; or • in cases of gross misconduct, dismissal without notice. 13

appeals if any sanction is imposed, you should be advised of your right of appeal and the process for doing so. the appeal should be conducted by someone sufficiently senior to review the original disciplinary decision, and could be someone external to your organisation. 14

tactical considerations when an investigation or disciplinary process is announced or pending, you should consider the following:- • whether to raise a grievance • whether to submit a data subject access request • other tactical or strategic steps to maximise potential leverage • whether to engage in statutory pre-termination discussions or without prejudice negotiations • possible settlement • potential related legal claims and future employability 16

settlement discussions and agreement if settlement is an option, a negotiated, agreed exit recorded in a settlement agreement can include the following: • an agreed settlement sum (consider outstanding equity and bonus entitlements) • non-derogatory comments clause • confidentiality provisions • agreed internal and external announcements • reference • notice and garden leave 17

will you choose mystery settlement agreement a, b or c? eh?! 18

• waiver of restrictions on exit • legal costs contribution • outplacement support and • a waiver of claims you will need to seek independent legal advice to finalise a settlement agreement. 19

key points to remember… in any investigation or disciplinary process:- • consider the potential outcomes and how these may impact your future career and employability • consider pr advice and reputational issues and how best to manage these • consider potential legal claims and negotiating position as well as what terms you are seeking • consider applicable restrictive covenants, garden leave and any release • take advice early to minimise risk, and guide you through the process 20

do you like your leaving gift? this is a tracking device, isn’t it? 21

about the team clare murray managing partner clare.murray@cm-murray.com +44 (0) 207 933 9134 sarah chilton partner sarah.chilton@cm-murray.com +44 (0) 207 933 9125 anna birtwistle partner anna.birtwistle@cm-murray.com +44 (0) 207 933 9121 david fisher partner david.ﬁsher@cm-murray.com +44 (0) 207 933 9133 samantha mangwana partner samantha.mangwana@cm-murray.com +44 (0) 207 933 9139 22

zulon begum partner zulon.begum@cm-murray.com +44 (0) 207 933 9123 beth hale partner and general counsel beth.hale@cm-murray.com +44 (0) 207 933 9131 nick hawkins associate nick.hawkins@cm-murray.com +44 (0) 207 933 9122 wonu sanda associate and solicitor advocate wonu.sanda@cm-murray.com +44 (0) 207 933 9124 zeinab harb associate zeinab.harb@cm-murray.com +44 (0) 207 933 9126 naomi latham trainee solicitor naomi.latham@cm-murray.com +44 (0) 207 933 9137 23

cm murray llp is a specialist uk employment & partnership law firm. chambers and partners: ranked band 1 for employment: senior executives “ leading senior executives-focused firm, with notable expertise in whistle-blowing, discrimination claims, and restrictive covenants and their enforcement. acts for clients from a range of sectors including technology and the financial services.”

legal 500: ranked tier 1 for employment: senior executives “ cm murray llp’s ‘first-rate’ practice provides ‘prompt, to-the-point and professional’ advice for senior executives, often handling mandates with cross-border elements.”

cm murray llp first floor, 36–38 cornhill, london, uk ec3v 3ng www.cm-murray.com t: +44 (0) 207 933 9133 out of hours: +44 (0) 7957 383079 twitter: @cmmurrayllp 9 1 0 2 p l l illustrations by david orme dorme@hotmail.co.uk design by toucari.live y a r r u m m c ©