A Legacy Intact: safeguarding your family business in the event of divorce - Book - Page 46
“
One practical issue the directors may
wish to consider is what would happen
to the employment of the spouse should
the relationship break down. This is
partly an employment law issue and
therefore beyond the scope of this guide
but worth some careful thought. From
a family law perspective, if a spouse is
prevented from working in the business
on the breakdown of the relationship,
their
earning
capacity
would
IN OUR RECENT REPORT
FA M I LY B U S I N E S S : T H E
THIRD PILLAR OF THE
U K E C O N O M Y, W E F O U N D
THAT BRITAIN’S TOP
1 0 0 FA M I LY B U S I N E S S E S
EMPLOY OVER 750,000
PEOPLE
be
impacted which the Court would need
to consider very carefully; if they need
to find alternative employment they may
need interim financial support until they
are able to secure this.
DECIDING WHETHER
OR NOT TO BRING THE
EMPLOYMENT
REL ATIONSHIP TO
AN END IS NOT
STRAIGHTFORWARD.
H AV I N G A FA I R R E A S O N
FOR DISMISSAL AND
F O L LO W I N G A FA I R
DISMISSAL PROCESS
W ILL HELP MITIGATE
AGAINST SUCH RISKS.
IF THE EMPLOYEE
SPOUSE HAS BEEN
EMPLOYED FOR AT LEAST
TWO YEARS THEY WILL
HAVE THE RIGHT TO
BRING A CLAIM FOR
U N FA I R D I S M I S S A L
AND, THEREFORE, TO
MITIGATE THIS RISK
O F A C L A I M A FA I R R E A SON WILL BE REQUIRED
A N D A FA I R D I S M I S S A L
PROCESS WILL NEED
TO BE FOLLOWED.
AGAINST THE
BACKGROUND OF THE
W I D E R FA M I LY L A W
ISSUES, DECIDING
WHETHER OR NOT TO
BRING THE EMPLOYMENT
REL ATIONSHIP TO AN
END REQUIRES CAREFUL
PLANNING AND
P R E PA R AT I O N, A N D
SHOULD BE HANDLED
S E N S I T I V E LY.
C ONSIDERATION SHOULD
BE GIVEN TO DISPUTE
R E S O LU T I O N A S PA RT O F
T H E P R E PA R AT I O N A N D
PLANNING, INCLUDING
THE POSSIBILITY OF
SETTLEMENT AND/OR
MEDIATION, AS
R E S O LV I N G T H E
ONGOING EMPLOYMENT
REL ATIONSHIP IN A
DIGNIFIED AND ELEGANT
M A N N E R I S L I K E LY T O
CONTAIN COSTS AND
LIMIT DISRUPTION TO
THE BUSINESS.
ON A PRACTICAL
LEVEL, A SAFER
APPROACH WOULD BE
TO CONSIDER USING AN
EXTERNAL HR
PROFESSIONAL TO
CONDUCT THE PROCESS.
THIS APPROACH WOULD
A S S I S T T H E FA I R N E S S O F
THE PROCESS AND, FOR
EXAMPLE, MITIGATE THE
RISK OF ANY CONFLICTS
OF INTEREST ARISING.
A D D I T I O N A L LY, T H E
EMPLOYEE SPOUSE WILL
HAVE OTHER “DAY ONE”
RIGHTS (I.E. RIGHTS
TH AT ARE NOT SUBJECT
TO A TWO YEARS’
SERVICE REQUIREMENT)
AND, THEREFORE,
A LEGACY INTACT - EXPOSURE
SIMON GORHAM
EMPLOYMENT
PA RT N E R
47
”
