Are we open to wrongful dismissal claim?

We recently dismissed an employee after a second misconduct incident. We followed the disciplinary procedures we have in place, but I have now found out that she is seeking legal advice on the basis that we have not dealt with other employees so severely. It is true that one of her colleagues was caught up in the second misconduct incident and has not been disciplined, but he has a great record and we were quite sure it was the dismissed employee who instigated the incident. Have we left ourselves open to a claim?

This situation highlights the concerns faced by many employers who, despite following their disciplinary procedure, are left questioning whether there was some aspect of a dismissal which may leave them vulnerable to a costly tribunal claim. Difficulties often arise where two employees have been involved in similar incidents but are treated differently and only one is found to be guilty of misconduct.

I advise employers to identify a fair reason for the dismissal and show that they have followed a fair procedure. To demonstrate fairness when dismissing an employee for conduct reasons, an employer must establish that it believed the employee to be guilty of misconduct, had reasonable grounds for that belief and carried out a reasonable investigation.

All staff should be treated consistently. However, that is not to say that any difference in outcome renders a dismissal unfair.

Factors such as the employee’s previous disciplinary record, the extent to which they are culpable for the conduct, their seniority and other mitigating or aggravating factors can be taken into account when deciding whether disciplinary action is appropriate or the penalty that should be imposed. Employers faced with such situations should explain their decision in the disciplinary outcome letter clearly and set out the factors that have been taken into account and why. It is important to review employment policies and procedures regularly and to seek legal advice when disciplinary issues are complex.

Fiona McAnaw is a partner and head of employment at BTMK Solicitors, a law firm

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Finding a buyer

Due to personal circumstances I want to sell my business which I set up in 2007 and which is now turning a handsome profit. However, time is of the essence. What can I do to push through a quick sale? Obviously I still want to maximise the value.

Be clear about what you want to achieve from the sale, the price at which you would like to sell the business and whether you want to be involved in the business in future. Even if not an owner, you may want to stay involved or the business may need you to be.

You should also consider external factors including discussing your plans with the company’s bank. You will most likely need to obtain its consent or repay under any facilities that the company has. At an early stage you should instruct experienced professional advisers to assist in structuring the deal to achieve maximum consideration and the most efficient transaction and tax structure.

Having advisers on board with experience of corporate transactions will help the process to run smoothly. If you don’t already have a buyer in place, they may also be a good channel through which to identify potential purchasers.

Virtually all buyers will want to undertake legal, financial and other due diligence on your company – carrying out your own prior review of your business will help to identify and rectify potential issues which could lead to the buyer seeking to renegotiate. For example, ensure that intellectual property is protected; the employment contracts and handbook are up to date; and your terms and conditions and supply chain are secure.

Early preparation and understanding of the process, along with solid professional support, is vital to achieving as smooth a sale as possible.

Paul King is a partner in the corporate team of Clarion, a law firm

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Putting the digital record straight

What are the practical implications for businesses with regard to the recent EU decision on digital rights? We operate sales offices across the UK and have been concerned with numerous sensitive information about us that has been appearing online that we feel is detrimental to our image. How can we regulate this access and can we erase traces of this digital inaccuracy from the internet?

Following the recent ruling by the European Court of Justice, citizens are now able to request the removal of objectionable links from internet search results (not from the internet all together). This right applies only to personal data – not to information about a company and the sensitive information you refer to in your query would almost certainly not fall within the parameters of this right.

The benefit of this right for companies is limited to occasions in which a search for a company name yields results about an individual (a director or executive, for example) which relate negatively in some way to the company. In such cases the relevant individual will need to apply to the search engine provider to have the information removed.

At the end of May, Google published an online form for EU nationals to request their removal from search results. Other internet search providers are understood to be considering their options.

Completing such a request form is in no way a guarantee that the information will be removed – if it is in the public interest to know about the information any right to have the link removed will be overridden. The ruling has put Google in a difficult position as it attempts to interpret the criteria for “inadequate, irrelevant or no longer relevant” information and it is, as yet, unclear exactly what this will constitute. The basic question seems to be whether the impact of the information on the privacy of an individual is greater than the public’s right to find it and only time will tell the impact that this ruling will have for individuals and businesses alike.

Vanessa Barnett is a partner at Charles Russell, a law firm