I am sure, we have all, during the course of our Employment considered setting up on our own, in competition with our employer or promoted ourselves on the skills we have accumulated when seeking employment with a competitor. This is particularly resonant now, within the current economic climate, where entrepreneurial skills and the ability to generate business are taking precedence over other previously prioritised skills.
It is in the nature of things, that we would seek to utilise skills and knowledge that we have acquired, to ensure that we are more formidable both in business or in the job market. However, when does creative thinking and utilising knowledge we have accumulated, become a breach of trust that can lead to a career threatening termination of your current employment?
These issues were clarified and highlighted in a recent case, Khan and Another v Landsker Child Care Ltd. This case involved a Mr Khan and a Mr Hemming who had been employed by Landsker, a company which owned and operated children's care homes. Mr Khan, had allowed a private email account to be left open on his work computer and his employers opened an attachment which revealed a business plan from Mr Hemming, pitching for investment in a business for care homes. This would have been in direct competition with their employers.
The employers contended that planning to set up in business in competition with them and using company resources to do so, meant they had breached the fundamental trust and confidence essential to their contractual relations. They dismissed both employees for gross misconduct.
Both Mr Khan and Mr Hemming proceeded with claims for Unfair Dismissal claiming that the business plan was merely an idea.
The Judgment made it clear that an intention to set up in business or to compete with your employer (in the absence of any contractual provisions which are not in restraint of trade) , is not enough to justify a fair Dismissal unless the employer genuinely believed that the employee was compiling information, e.g. client lists or disclosing trade secrets in order to abuse their confidential position.
The judgment provides a useful insight into how an Employment Tribunal reacts to an employer attempting to restrict the employee's activities even where they may conflict with the employer's business in the future, by emphasising that "….additional skill and knowledge belonging to an employee and their exercise of that cannot be lawfully restrained by the employer."
Contact us today to talk about your dismissal issues with one of our specialist employment solicitors.
Please call 0800 916 9060 or email firstname.lastname@example.org. Our Dismissal Employment Solicitors operate from offices across the country and can offer immediate and accessible representation anywhere in the UK.