Hello, sorry I was offline earlier. Please remind me if you are currently off sick or suspended, or still attending work?
still on suspension on full pay
As I said though, I did resign today.
are you still there?
Hello Ben, sorry to ask but are you able to answer my question today? Only I need to e-mail my (ex) boss tonight about this Disciplinary Hearing tomorrow.
Hi, I am here, sorry just in between meetings. If you do not attend the meeting, even if you have resigned, then the employer can proceed in your absence and make a decision, up to and including dismissal. So the fact you have resigned now and are not going to attend does not mean this could not end up in a dismissal. A postponement can only occur if your chosen companion s unavailable to attend and you can show that is the case or if you are signed off sick, although with the latter if the employer believes this was done just with the purpose of avoiding the hearing they could still proceed.
HI Ben, my ONLY concern is him coming after me for money that he says I've earned by diverting business from the company.
Speaking to my family the consensus seems to be that I should go and at least make clear to him that I have never approached any clients of my employer, and the few that have been booked with the company and subsequently by me are either family members or close friends of mine/my husbands so there is no loyalty there to XXX Travel, just to me as my friends/family.
There's things I expect he will ask me such as "how much money have you made from doing this" and "how many bookings have you made" that I just won't want to answer and I don't know if replying "I can't answer that" will make things worse.
I considered e-mailing him today to ask that in light of my resignation what is really the point of holding a Disciplinary Hearing? I haven't done this yet though as I wanted some advice,
as discussed previous he cannot just sue you fore money you have earned - this is not about penalising you, it is only about him being able to recoup genuine losses incurred from your alleged breach. So if you have not cost the company any money then he simply cannot sue you (well he can but it does not mean he will win)
What about this Ben:
In some cases, dismissal may seem an insufficient sanction, particularly where the scope of the employee’s moonlighting activities has been extensive and the employee has been diverting business away from his or her employer. So can the employer seek financial recompense for the employee’s breach of obligations?
If the employee has breached his or her contract, then the employer may be able to bring a claim. However, any damages awarded are typically calculated to put the employer in the position that it would have been in had the contract been properly performed.
In many cases, it can be difficult to establish that the employer has suffered any sort of financial loss if the employee is carrying out other work that has no direct financial impact on his or her employer. Analyse whether or not you can show that the scope of the employee’s competing activities has gone so far as to take business away from your company before embarking on litigation.
If the employee’s activities have not caused direct impact, then a claim for breach of contract may be of limited use. However, where an employer can establish that one of its employees owes fiduciary duties, then there is greater scope for remedial action.
Where an employee has set up a business in breach of fiduciary obligations to his or her employer and that business has made profits, then he or she could be required to account for those profits to the employer. That is a powerful remedy for an employer to have when dealing with unlawful activities by its senior employees.
I looked that up from an employer's point of view and it's scared the life out of me! Does me doing private work away from my employer count as "causing a direct impact"? This seems to say that if a civil court agreed with him that it has, then I'd have to pay him back all the commission I've earned from private sales.
The fact that he still wants me to go to this hearing, makes me think he's serious about some sort of action against me. In which case am I better off attending to try and find out what he knows?
it is certainly not as simple as it sounds, he will have to show that you had actually diverted away business from him and that he has suffered losses as a result. It could come down to the people you helped confirming that they would have never used that company anyway, regardless of whether they went through you personally or not
Could he make me do that as part of a defence? I don't really know what civil cases involve and how an aggrieved party (my boss) would go about building a case against me. It doesn't help that I don't know how he's got the information he's got, or if he's got more than the two bookings he mentioned in the letter last week.
Do you think I should go, and just say "I can't answer that" at any tricky questions. I suspect he'll say to me that he's going to proceed with a civil case and I'm just so worried.
If he is making a claim it would generally be for him to prove that he had a valid claim, rather than for you to prove you did not. I cannot personally tell you whether to attend or not - I can tell you what may happen if you do and what may happen if you don't, but the final decision rests with you
if you were his solicitor, would you advise him to sue?
In other words, do you think that what I do counts as diverting business from his company?
That depends entirely on what evidence he has and what information he has gathered about this - it would change a lot depending on that. From what I can see it does not really look like diverting business away but then as mentioned we simply do not know what information he is going by
but just going back to this civil case thing. What powers does somebody have, if any, to dig up information to build a case. Would I be compelled legally to provide records of all my bookings? Or can I not be forced to do anything like that?
Also Ben, let's assume he has ALL the information. Knows about every single bkg I've made and knows that only approx 5 of those customers were my personal friends and family that I had previously booked through my employer. None of the others have booked, or even enquired to book with my employer, and are all personally known to myself and/or my husband. With all that information, would you say it looks like diverting business from him?
I could see you were typing, but now it says "initialising"..?
you will have a duty to disclose any relevant documents you have about the case, whether it helps you or not, so you would be expected to provide details if necessary. The issue here is that you are asking me to give you a decision which I can't because it would depend on the actual circumstances of the case and how the judge see it - I cannot say for certain, yes you were diverting business or no you were not because the court could find something completely different. So it is not possible to give you reassurances to that extent, or to say you will get stung if he pursues this - so many factors can influence the outcome, many of which can come about on the day, that we are really going into a territory that no one can predict, regardless of how much evidence they have
Okay, thank you. Disclosing documents, i.e. admitting to all of my bookings - is that something I have to do now at this disciplinary, or only if he pursues a civil case?
If I don't have to disclose now, is the "I can't answer that" reply okay to use tomorrow for any awkward questions?
No, not now - now you could disclose them if you had to defend the case and you believed that these were relevant documents that would provide such a defence. You can refuse to answer any specific questions but it means the employer can draw its own inferences from that based on what other evidence is available
Thank you - revealing more certainly wouldn't be a defence! I just don't know what to say if he asks specifics such as "how much money have you made doing this?"
Sorry, but just to ask this again - let's assume he has ALL the information. Knows about every single bkg I've made and knows that only approx 5 of those customers were my personal friends and family that I had previously booked through my employer. None of the others have booked, or even enquired to book with my employer, and are all personally known to myself and/or my husband. With all that information, would you advise him to sue?
that depends on whether it is worth suing taking into account the potential losses that could be incurred and the costs of the claim itself, but again we are going into Mystic Meg land here - trying to predict the future and what may happen, which is not a good way to go about it, because you simply do not know what the othjer side are thinking, what they are being advised and so on. After all what I may advise him would not necessarily be what another lawyer would, because after all there is a degree of subjectivity involved
Okay Ben, thank you very much
you are most welcome, all the best with the meeting (if you attend)