Rules of engagement when axe about to fall
Resigning puts you in a weaker position
When is employment law like a chess match? When you have to think three moves ahead.
That’s typically the advice for executives who, though they have not been terminated, either expect to be or believe they have been constructively dismissed.
How the employee reacts to these situations can make the difference between checkmate and stalemate. If you are still working, you have definite advantages, including access to people and information.
Here are some tips to help you make the right moves:
Don’t jump to conclusions Too many senior employees draw unwarranted conclusions. For example, employees who are transferred or provided new responsibilities often feel shunted aside — their previous contributions and service disregarded. yet, the employer may, instead, be placing great faith in the employee, giving them new or additional responsibilities.
If you are in this situation don’t immediately resign, instead sit down with your employer and discuss the reasons for the changes and what might lie ahead.
If the explanation is acceptable, then the employment relationship has been repaired and any misapprehensions eliminated.
If it turns out it is a demotion, then you know where you stand and you have a stronger constructive dismissal case. At the very least, this dialogue prevents the employer concocting a less culpable explanation later. Retain relevant documents If you are still working but feel your dismissal is pending, use the opportunity to discreetly take home copies of relevant memorandums or financial information to rebut any allegations your employer may make against you.
When I proffer this advice, some say, technically accurately, “If it is relevant, the employer must produce it in the litigation process.”
Without casting aspersions on employers, most of whom obey the rules, evidence can be deleted inadvertently, innocently overwritten, lost through normal business processes or simply not located given the volume of electronic and paper transactions.
If there is a large volume of material, it should be done discreetly over a few days. I don’t recommend emailing such information to your house (or lawyer’s office) because that can easily be detected. And be careful that the information you take home is not used for any other purposes. If it is, for example, used for competitive purposes it constitutes cause for dismissal and would be fatal to any claim for wrongful or constructive dismissal. Record important meetings Although I rarely recommend this, it is not illegal to record a meeting or telephone call in which you participate. It is sometimes useful to record an important call or meeting. With smartphones, the technology is readily available and raises no suspicion. How and when to use such evidence is up to your lawyer. If litigation ensues, the recording must be produced. Put nothing in writing without legal advice Where the employee’s feelings have been hurt, there is an inclination to lash out and write seething denunciations of the employer’s actions. Although cathartic, it may seal the employee’s fate and the judge’s potential sympathy. Harsh words can cause irreparable harm to the relationship and provoke your dismissal when that had not been the employer’s intention.
Above all, do not resign. If you have correctly adduced the employer’s intention, why forfeit the severance pay?