1. Terminations in the US and the UK: The Same Thing, Only Different*
presented by
Jonathan A. Segal and Jon Heuvel
*No statements made in this seminar or in the PowerPoint or other materials should be construed as legal advice or as pertaining to specific factual situations. Further, participation in this seminar or any question and answer (during or after the seminar) does not establish an attorney-client relationship between, on the one hand Duane Morris LLP or Penningtons Manches LLP, and, on the other hand any participant (or his or her employer).
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3. 1. Is “cause” required to terminate?

4. Jon Huevel Jonathan Segal Jon.Heuvel@penningtons.co.uk

5. US Is “cause” required to terminate? General rule-no Exceptions
Employment Agreement
Collective Bargaining Agreement
Inadvertent Agreement
Consequences of absence of cause
More likely to get a claim
Impossible to defend claim if no “cause”

6. UK Is “cause” required to terminate? General rule - yes Exceptions
Less than 2 years’ service
Consequences of absence of cause
Termination is still effective
Will trigger an unfair dismissal claim
Potential other claims, even if less than 2 years’ service

7. Is prior notice or (a warning) required prior to termination?

8. US Is prior notice or (a warning) required prior to termination?
General rule-no
Exceptions
Agreements (careful on reciprocal obligation)
Plant Closing or Mass Layoff (federal, state or local)
Warnings
Benefit: notice reduces surprise and anger
Risk: window of opportunity for preemptive strikes—retaliation

9. UK Is prior notice or (a warning) required prior to termination?
General rule – yes
Exceptions
(for contract claims) PILON clause
(for statutory claims) None
Warnings
Benefit: eliminates unfair dismissal claim (potentially)
Risk: triggers an adverse reaction by employee

10. 3. Is sexual orientation a protected status?

11. US Is sexual orientation a protected status? Federal States and local
Statute-no
EEOC enforcement position
States and local
22 states
100 plus local jurisdictions
Backlash
North Carolina
Houston
Multi-state dilemma

12. UK Is sexual orientation a protected status? General rule - yes
Risk of conflict with other forms of protected status (religion)

13. When is leave “protected” in terms of taking care of 3rd party?

14. US When is leave “protected” in terms of taking care of 3rd party?
Federal FMLA: spouse, child and parent
Some states go further: domestic partners in California and New Jersey, for example

15. UK When is leave “protected” in terms of taking care of 3rd party?
Family friendly rights
Maternity/Paternity/Adoption leave
Parental Leave
Shared Parental Leave
Emergency time off for family and dependents
Flexible working

16. 5. Is written notice of termination required?

17. US Is written notice of termination required? General rule: no
Exceptions
States, such as New York and California
Agreements
Business reasons (risk-benefit analysis)

18. UK Is written notice of termination required? General rule - no
Exceptions
Request for written statement of reasons
When employee is pregnant
When termination brings maternity leave to an end

19. 6. How much time do you have to give employee to sign a severance agreement?

20. US
How much time do you have to give employee to sign a severance agreement?
Age claims under ADEA
Individual termination: 21 days
Group termination: 45 days
Other claims
General rule: knowing and voluntary—no per se time frame
Warning: employee signing on spot
Do employees have to be given opportunity to revoke?
General rule: No
Exceptions
ADEA-7 days to revoke
State laws—Minnesota—14 days for all claims under state anti-discrimination law?

21. UK
How much time do you have to give employee to sign a severance agreement?
General rule – no set amount of time
Do employees have to be given opportunity to revoke?
General rule – no (but with good reason…)

22. Can you prohibit disparagement in severance agreement?

23. US Can you prohibit disparagement in severance agreement?
Common sense: yes
Legal attacks
NLRB
EEOC
Alternatives
Defamation
Silence, but respond

24. UK Can you prohibit disparagement in severance agreement?
Common sense - yes
General rule - yes
Exceptions
Whistleblowing

25. Role of lawyer in severance agreement

26. US Role of lawyer in severance agreement
ADEA: employee must be encouraged to consult
Non-ADEA: recommended that employee be encouraged to consult
No duty to identity lawyer or for lawyer to sign

27. UK Role of lawyer in severance agreement
Contractual claims – no necessity for lawyer to be involved at all
Statutory claims – mandatory (agreement is otherwise not legally binding)
Note: signature by employee’s counsel never required

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