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). DM2/6676043.1

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1. Is “cause” required to terminate?

Jon Huevel Jonathan Segal Jon.Heuvel@penningtons.co.uk JSegal@duanemorris.com

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”

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

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

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

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

3. Is sexual orientation a protected status?

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

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

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

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

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

5. Is written notice of termination required?

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

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

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

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?

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…)

Can you prohibit disparagement in severance agreement?

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

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

Role of lawyer in severance agreement

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

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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