In Crawford v Suffolk Mental Health Partnership NHS Trust, the employer referred a matter of alleged gross misconduct that arose out of the care given to a patient, to the Police. Describing this as "little short of astonishing", Elias LJ noted:

• Hospitals in this situation, although they must be seen to act transparently, owe duties to long-serving staff;
• Being under the cloud of possible criminal proceedings is a very heavy burden;
• Employers should not subject employees to that burden without the most careful consideration and a genuine and reasonable belief that the case, if established, might justify the epithet "criminal" being applied to the conduct.

Elias LJ also doubted whether suspension had been appropriate in this case, and observed that suspension should not be a knee-jerk reaction "if it is, it will be a breach of the duty of trust and confidence. Suspended employees will frequently feel belittled and demoralized".

What does "solicitation" mean in a post termination non solicitation clause?

In Towry EJ Limited v Barry Bennett and others, in a 350 page judgment handed down today Mrs Justice Cox held that it should be generally defined as meaning if an employee "directly or indirectly request[s], persuade[s] or encourage [s] clients of their former employer to transfer their business to their new employer" (para 440)

So far, so straightforward. However, how can an employer actually show that a former employee has solicited former clients in breach of a non solicitation clause? Can this solicitation be inferred only from the fact that a "tidal wave" of clients have moved across to the business where the old employees now work where there is no primary evidence of requesting, persuasion or encouragement by those employees?

In Towry, Mrs Justice Cox's answer was "no". The Claimant was not able to show that those clients had not moved across out of a sense of loyalty towards their former employee rather than due to request/persuasion/ encouragement (para 884).

Mrs Justice Cox did not hold that a wholly inferential case would have been impossible (see para 893-4) just that the burden of proof rests firmly on the employer - who was placed in the unenviable position of cross examining a catalogue of its former clients.

This case demonstrates the key difference in strength between a "non dealing" post termination restriction and a significantly less strong "non solicitation clause". Had the employees had non dealing clauses in their contracts, their conduct would have been straightforwardly unlawful.

Harry Potter, Bat Phones, Fantasy Football and Three bells on the fruit machine; unlikely facts for a team move case but all feature in QBE Management Services (UK) Ltd v Dymoke and others. The Claimant succeeded in obtaining, after an expedited trial, 'springboard' relief to restrain three former employees and their financial backer from commencing a competing business. The case is believed to be the first example of springboard relief being granted as final relief on the basis of breach of fiduciary duty and breaches of an employee's duty of fidelity. In addition to injunctive relief, QBE also recovered damages and indemnity costs.

The Judgment is a useful 'one stop shop' for the legal principles which apply in team move cases. Mr Justice Haddon-Cave undertakes an extensive review of the case law in particular on the duty to self report or to report the misconduct of others (see paras 169-216). He additionally considers the extent of the relief that may be granted to neutralise a springboard advantage. Eight principles of springboard relief are distilled at paras 239-247; these are analysed at 248-294.

Mr Justice Haddon-Cave found that two employees, one of whom owed fiduciary duties, had solicited a third and planned a competing business which would "rip the heart" of out of part of QBE's marine insurance business. Confidential information was used in order to garner financial support for an external backer. The eventual plan involved the use of an external recruitment agent which the court found to have been a sham to conceal the solicitation of fellow employees.

Were 'Leaders' engaged to conduct Weight Watchers meetings employees of Weight Watchers Ltd for the purposes of PAYE and NI contributions?

Yes, says the Upper Tribunal (Tax and Chancery Chamber) in the case of Weight Watchers (UK) Ltd v HMRC.

In this case, Leaders engaged by WWUK signed contracts describing themselves as independent contractors and not the servant of Weight Watchers. They were required to pay their own tax and national insurance. The Leaders were only paid if they personally conducted their own meetings and they were required to obtain WWUK's specific approval in relation to time, date and place of any meetings. Although the contract contained an express substitution clause, the Leaders were obliged to find a suitably qualified replacement if they did not want to lead a meeting.

The Upper Tribunal dismissed WWUK's appeal and concluded that the Leaders were employees of WWUK rather than self employed contractors. The Upper Tribunal held that the Leaders were required to provide their services personally and that WWUK imposed a high degree of control as they were required to follow WWUK's programme and expected to turn up and conduct the meetings at a certain time and place each week.

Whilst WWUK had written a 'substitution clause' into the contracts, the Upper Tribunal adopted a purposive interpretation of the contracts in accordance with the decision of the Supreme Court in the case of Autoclenz v Belcher and concluded that in reality, the right to substitute was "fettered" because the Leaders were required to find a suitably qualified replacement and show good reason for proposing not to take a meeting.