With the number of UK vacancies exceeding the number of unemployed people for the first time in years, employees looking for opportunities elsewhere are in a fortunate position. The Great Resignation is well underway. But don't let the excitement of a new opportunity get the better of you - it's important to remember your legal responsibilities, to avoid landing yourself (and potentially your new employer) in hot water. This is particularly important for senior staff, especially when joining a competitor.
Some important points to remember:
1. Check your notice period - your contract should specify the minimum period you are required to give and may set out how notice must be given. Although you may be able to negotiate an early release, this will depend on the circumstances and, crucially, whether you are joining a competitor.
2. Don't be surprised if your employer puts you on garden leave - and make sure you comply with the terms if they do. Garden leave terms can be enforced via a High Court injunction (and in any event, failure to comply could result in disciplinary action, including dismissal without notice).
3. Consider any directorships. If you're a statutory director, your employment contract may require you to resign from office when your employment ends, and the company may have the power to remove you. Even if the contract doesn't set this out, it's unlikely that you will want the responsibilities of directorship after you leave employment. You should also ascertain whether you will continue to be covered by directors and officers (D&O) liability insurance after you leave.
4. If you are a director, ensure that you comply with your fiduciary obligations (which are more onerous than the duties of non-director employees); breaching these could enable your former employer to claim damages or any profit you've generated from you.
5. Resist any urge to mine your current employer for useful information and documents - these will likely be covered by confidentiality clauses in your contract (as well as your fiduciary obligations if you're a director) and misappropriating them could result in your ex-employer pursuing a High Court claim against you. Remember that almost any electronic activity leaves a trace - emailing confidential material to your personal address and then deleting the emails is very likely to be discovered.
6. Understand your post-termination restrictions - and make sure your new employer does too. You might be subject to a non-compete or restrictions on dealing with clients, which could scupper your plans. They're not always enforceable, so it's worth taking legal advice if this is likely to cause issues for you. And don't make the mistake of assuming they are unenforceable: well-drafted clauses which are reasonable in scope and duration may well be enforceable and breaching them could result in your former employer obtaining an injunction to prevent further breaches as well as a claim for any losses incurred (or in some cases profits made by you) .
7. Check what impact your departure will have on any non-cash incentives such as shares or options. Unvested options will usually lapse on departure, so if you can factor this into your negotiations with your new employer. Equally your departure may trigger a compulsory sale of shares: and/or your resignation as an employee or director may impact your tax liability and tax relief available on the sale of your shares. And don't forget to check the terms of any share scheme - they often contain non-compete clauses and other post-termination restrictions, in addition to those in your employment contract.
8. Make sure you return any documents and property - failing to do so could result in your former employer getting a High Court order for 'delivery up' to compel you to do so or even a 'search and seizure' order.
9. You may well want to shout from the rooftops about your exciting new opportunity - but be careful how you go about it. Telling your colleagues about your plans before you've handed in your notice, or when you are supposed to be on garden leave, may be construed as an attempt to poach them. Even notifying LinkedIn contacts could amount to solicitation of clients.
10. Don't underestimate the importance of getting legal advice if you think your exit is likely to prove contentious.
Above all, remember that, whatever your reasons for leaving, in most cases it's sensible to stay on good terms with your ex.
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