Employment law 
breakfast seminar 
Thursday 5 June 2014 
Justin Govier, Partner 
Jonathan Bruck, Senior Solicitor 
Erica H...
Negotiating an exit 
Justin Govier 
Partner
Negotiating an exit prior 
to 29 July 2013 
• Where to start? (Before 2 years !) 
• Without prejudice rules - genuine atte...
Pre-termination negotiations 
after 29 July 2013 
• “Any offer made or discussions held before the termination 
of the emp...
Limitations 
• Only ordinary unfair dismissal cases 
• Not automatic unfair dismissal, not discrimination, not breach 
of ...
Acas code of practice and guidance 
• Guidance broad and general 
• Useful examples, but not all the answers 
• Need case ...
Some issues 
• Chronology – letter, meeting, agreement? 
• Should allow employee to be accompanied 
• Militates to letter ...
Improper behaviour 
• Harrassment, bullying, intimidation, offensive words, 
aggressive behaviour, physical assault (or th...
Not improper behaviour 
• Stating that the terms of a procedural termination will be less 
favourable 
• Not agreeing to p...
Has it been a success so far? 
• Legally – more clarity 
• Practically: 
- It is a process, less “cloak and dagger”, statu...
Getting the package right 
• Knowing your employee 
• Part HR professional / part psychologist 
• Non-financial issues 
• ...
Factors 
• Management time going through process 
• Certainty 
• Immediacy 
• Confidentiality 
• Non-derogatory clause 
• ...
Factors 
• Lump sum (accelerated receipt) 
• Dismissal in any event 
• Contributory conduct 
• Loss of earnings 
• One yea...
Employment law update 
Erica Humphrey 
Solicitor
Employment tribunal statistics 2012/13 
• Fees introduced for claims filed on or after 29 July 2013 
• Up to £1,200 (£250 ...
Unfair dismissal compensatory award 
• Basic award - £464 
• Compensatory award – lesser of £76,574 or 52 weeks’ actual 
g...
Case law update: 
calculation of holiday pay - commission 
• EU law – “at least four weeks’ paid leave” 
• Working Time Re...
Case law update: 
calculation of holiday pay - overtime 
• Neal v Freightliner Ltd [2012] – EAT 
• Faulton and another v B...
Case law update: 
collective redundancy 
• The Woolworths case (USDAW v Ethel Austin Ltd (in 
administration) and another ...
Case law update: 
disciplinary and grievance 
• Blackburn v Aldi Stores Ltd (2013) (EAT) 
- Failure to provide impartial g...
Case law update: 
disciplinary and grievance 
• Stuart v London City Airport (2013) (CA) 
- Employee fairly dismissed for ...
Early conciliation 
Jonathan Bruck 
Senior Solicitor
Early conciliation 
• Mandatory for claims presented after 
6 May 2014
The issues 
• Claimant (C) must notify Acas of intention to make a claim 
• “stop the clock” on limitation 
• Up to one ca...
Acas notification 
• Early conciliation notification form 
• Names, addresses and contact details 
• Group claim form 
• M...
Upon notification 
• Early Conciliation Support Officer attempts to contact C within 
24 hours 
• Obtains details (using c...
Options for claimant 
• Demand Certificate from ECSO (who will presumably try to 
persuade otherwise?) 
• If certificate i...
Options for Respondent 
• Contact usually within 48 hours 
• Refuse involvement 
• Discuss settlement with conciliator
Certificate 
• Issued at any time that conciliator concludes settlement is not 
possible (or 2 weeks if ECSO cannot contac...
Expectations 
• Acas will not advise on timing 
• Acas obliged to accept, even if out of time 
• Certificate is not a vali...
Early conciliation 
Effect on time limits 
• Day A = day Acas receives EC form/phone-call from C 
• Day B = day C is deeme...
Early conciliation 
Example 
• C dismissed with effect from 8 May 2014 & wants to claim UD 
• Normal time limit would expi...
Early conciliation 
Another example 
• C dismissed with effect from 8 May 2014; wants to claim UD 
• Normal time limit wou...
Settlement 
• If COT3 to settle all claims then no certificate 
• If COT3 to settle some claims then certificate for rest ...
Issues for Respondents 
• Checklist 
• Jurisdiction 
• Exemptions 
• Timing 
• Name of Respondent
Relevant proceedings 
• Most claims 
• Can go through EC but then add new claims 
• C has mix (e.g. unfair dismissal and r...
Other Exceptions 
• Joint claims, someone else complied 
• If R contacted Acas first (no clock stopping unless C presents ...
Conclusion 
• Timing issues might present headaches for C and litigation 
• Will C’s try it on anyway? 
• Will Rs concilia...
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Employment Law Seminar: Disputes, Settlements and Employment Law Updates 2014

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IBB Solicitors' employment lawyers, based in West London, delivered a seminar to HR executives. The seminar covered:

Negotiating an exit- the situation prior to July 29 2013
Pre-termination negotiations after 29 July 2013

“Any offer made or discussions held before the termination
of the employment in question, with a view to it being
terminated on terms agreed”
• Cannot be used as evidence in ordinary unfair dismissal cases
• Unless improper behaviour
• Non-monetary offers
• Even if no eventual settlement
• Still have WP principles (Portnykh -v- Nomura)

Limitations
• Only ordinary unfair dismissal cases
• Not automatic unfair dismissal, not discrimination, not breach
of contract
• Increase in multiple claims
• Everyone has a protected characteristic
• Risk assess

Acas code of practice and guidance
• Guidance broad and general
• Useful examples, but not all the answers
• Need case law, although doesn’t always help
• Trying to formalise an informal process

Some issues
• Chronology – letter, meeting, agreement?
• Should allow employee to be accompanied
• Militates to letter first
• Allow time to consider offer (10 calendar days to consider
proposed formal written terms of a settlement agreement)
• Template letters – useful, current caution around amending
• Create precedent letter

Improper behaviour
• Harrassment, bullying, intimidation, offensive words, aggressive behaviour, physical assault (or
threat), criminal behaviour, victimisation, discrimination

• Undue pressure, e.g. not giving reasonable time for consideration of proposed written terms. 10
calendar days recommended (unless agreed otherwise)

• Stating (before disciplinary process) that employee will be dismissed if offer rejected (as
opposed to stating that disciplinary process will commence)

Unfair dismissal compensatory award
• Basic award - £464
• Compensatory award – lesser of £76,574 or 52 weeks’ actual gross pay
• Law firm challenge – judicial review
- R (on the application of Compromise Agreements Ltd) v
Secretary of State for Business, Innovation and Skills


Case law update:
calculation of holiday pay- commission



• EU Law- at Least four weeks' paid Leave"
• Working Time Regs- a week's pay'
• WiLliams and others v 8ritish Airways Plc [2011] - normaL remuneration" includes any payment
intrinsically Linked" to the performance of tasks
• Lock v British Gas Trading Limited [2012]
- AG opinion: commission was intrinsically Linked to his role as a salesman
- Suggested that is averaged over the Last twelve months


Early conciliation

Mandatory for claims presented after 6 May 2014

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Employment Law Seminar: Disputes, Settlements and Employment Law Updates 2014

  1. 1. Employment law breakfast seminar Thursday 5 June 2014 Justin Govier, Partner Jonathan Bruck, Senior Solicitor Erica Humphrey, Solicitor
  2. 2. Negotiating an exit Justin Govier Partner
  3. 3. Negotiating an exit prior to 29 July 2013 • Where to start? (Before 2 years !) • Without prejudice rules - genuine attempt to settle a dispute and no “unambiguous impropriety” • Often needed earlier than that, exploratory conversations • Artificial scripted conversations, manufacturing of disputes and wrong labelling of WP • “Cloak and dagger”
  4. 4. Pre-termination negotiations after 29 July 2013 • “Any offer made or discussions held before the termination of the employment in question, with a view to it being terminated on terms agreed” • Cannot be used as evidence in ordinary unfair dismissal cases • Unless improper behaviour • Non-monetary offers • Even if no eventual settlement • Still have WP principles (Portnykh -v- Nomura)
  5. 5. Limitations • Only ordinary unfair dismissal cases • Not automatic unfair dismissal, not discrimination, not breach of contract • Increase in multiple claims • Everyone has a protected characteristic • Risk assess
  6. 6. Acas code of practice and guidance • Guidance broad and general • Useful examples, but not all the answers • Need case law, although doesn’t always help • Trying to formalise an informal process
  7. 7. Some issues • Chronology – letter, meeting, agreement? • Should allow employee to be accompanied • Militates to letter first • Allow time to consider offer (10 calendar days to consider proposed formal written terms of a settlement agreement) • Template letters – useful, current caution around amending • Create precedent letter
  8. 8. Improper behaviour • Harrassment, bullying, intimidation, offensive words, aggressive behaviour, physical assault (or threat), criminal behaviour, victimisation, discrimination • Undue pressure, e.g. not giving reasonable time for consideration of proposed written terms. 10 calendar days recommended (unless agreed otherwise) • Stating (before disciplinary process) that employee will be dismissed if offer rejected (as opposed to stating that disciplinary process will commence)
  9. 9. Not improper behaviour • Stating that the terms of a procedural termination will be less favourable • Not agreeing to provide a reference • Not paying for independent advice • Encouraging employee, in a non-threatening way, to re-consider rejection of offer • Often it’s not what you say, but how you say it • More pitfalls for SMEs
  10. 10. Has it been a success so far? • Legally – more clarity • Practically: - It is a process, less “cloak and dagger”, statutory seal of approval, nothing wrong with it - transparent, frank communication - Reduction in two-pronged approach - Internal procedures - Benefits outweigh problems - Employees use as well
  11. 11. Getting the package right • Knowing your employee • Part HR professional / part psychologist • Non-financial issues • Tactics (room to move) • Non-financial deal breakers?
  12. 12. Factors • Management time going through process • Certainty • Immediacy • Confidentiality • Non-derogatory clause • Announcement (customers, suppliers, employees) • Restrictive covenants • Legal fees • Avoiding test case for others • Public dispute • Recruiting replacement (e.g. “redundancy”)
  13. 13. Factors • Lump sum (accelerated receipt) • Dismissal in any event • Contributory conduct • Loss of earnings • One year cap • Job market • Reference • Tribunal fees • Punitive • Advice – legal and non-legal • Employee expectations (as opposed to realities) • Merits of the case
  14. 14. Employment law update Erica Humphrey Solicitor
  15. 15. Employment tribunal statistics 2012/13 • Fees introduced for claims filed on or after 29 July 2013 • Up to £1,200 (£250 filing and £950 hearing) • 79% fewer claims received: - Oct-Dec 2012 – 45,710 claims received - Oct-Dec 2013 - 9,801 claims received • 75% fewer than in the last quarter • Unison challenge – judicial review - (R (Unison) v Lord Chancellor and another [2014] EWHC 218 (Admin)
  16. 16. Unfair dismissal compensatory award • Basic award - £464 • Compensatory award – lesser of £76,574 or 52 weeks’ actual gross pay • Law firm challenge – judicial review - R (on the application of Compromise Agreements Ltd) v Secretary of State for Business, Innovation and Skills
  17. 17. Case law update: calculation of holiday pay - commission • EU law – “at least four weeks’ paid leave” • Working Time Regs - a ‘week’s pay’ • Williams and others v British Airways Plc [2011] – “normal remuneration” includes any payment “intrinsically linked” to the performance of tasks • Lock v British Gas Trading Limited [2012] - AG opinion: commission was intrinsically linked to his role as a salesman - Suggested that is averaged over the last twelve months
  18. 18. Case law update: calculation of holiday pay - overtime • Neal v Freightliner Ltd [2012] – EAT • Faulton and another v Bear Scotland Ltd [2012] – EAT • Watch this space…
  19. 19. Case law update: collective redundancy • The Woolworths case (USDAW v Ethel Austin Ltd (in administration) and another case UKEAT/0547/12) • Collective consultation when: - Proposing to make redundant 20 or more employees - “at one establishment” - Within a period of 90 days or less - 100+ employees = 45 days’ consultation - Fewer than 100 employees = 30 days’ consultation • EAT: the words “at one establishment” should be disregarded • Referred to the ECJ
  20. 20. Case law update: disciplinary and grievance • Blackburn v Aldi Stores Ltd (2013) (EAT) - Failure to provide impartial grievance could amount to a fundamental breach of contract • Miller v William Hill Organisation Ltd (2013) (EAT) - Reasonable belief in the employee’s guilt - Where an employee dismissed for criminal or serious misconduct, level of investigation must be “careful and conscientious” - Should focus no less on any potential evidence that may… at least point towards innocence…as he should on the evidence directed towards proving the charges against him
  21. 21. Case law update: disciplinary and grievance • Stuart v London City Airport (2013) (CA) - Employee fairly dismissed for theft even though acquitted in a criminal trial • Brito Babapulle v Ealing NHS Hospital (2013) (EAT) - A finding of gross misconduct will not inevitably make dismissal a reasonable response
  22. 22. Early conciliation Jonathan Bruck Senior Solicitor
  23. 23. Early conciliation • Mandatory for claims presented after 6 May 2014
  24. 24. The issues • Claimant (C) must notify Acas of intention to make a claim • “stop the clock” on limitation • Up to one calendar month (extension for further 14 days by agreement) • Claims for relevant proceedings cannot be presented before early conciliation complete and early conciliation certificate
  25. 25. Acas notification • Early conciliation notification form • Names, addresses and contact details • Group claim form • More than one Respondent (R) – different time limits! • On-line, phone, post • Acas records receipt (Day A) • Email receipt / date stamped
  26. 26. Upon notification • Early Conciliation Support Officer attempts to contact C within 24 hours • Obtains details (using checklist) • Allocates conciliator
  27. 27. Options for claimant • Demand Certificate from ECSO (who will presumably try to persuade otherwise?) • If certificate issued, clock restarts • Agree that Acas can contact R (Acas database for large employers)
  28. 28. Options for Respondent • Contact usually within 48 hours • Refuse involvement • Discuss settlement with conciliator
  29. 29. Certificate • Issued at any time that conciliator concludes settlement is not possible (or 2 weeks if ECSO cannot contact C) • Same conciliator if claim issued - helpful
  30. 30. Expectations • Acas will not advise on timing • Acas obliged to accept, even if out of time • Certificate is not a validation of claim
  31. 31. Early conciliation Effect on time limits • Day A = day Acas receives EC form/phone-call from C • Day B = day C is deemed to receive EC certificate (or actual receipt date if earlier) • Deemed receipt: - date certificate emailed by Acas - 2 working days after Acas posts certificate (assuming 1st class used) • Time limit for claiming extended to 1 month after Day B if time would otherwise expire between Day A and Day B + 1 month
  32. 32. Early conciliation Example • C dismissed with effect from 8 May 2014 & wants to claim UD • Normal time limit would expire 7 August 2014 • C emails EC form to Acas on 5 June 2014 (Day A) • Acas makes contact with C on 9 June 2014. C agrees to Acas contacting R but R is not willing to agree a settlement • Acas issues EC certificate and emails it to C on 13 June 2014 (Day B) • When does the UD time limit expire? - ERA 1996: ‘In working out when a time limit set by a relevant provision expires, the period beginning with the day after Day A and ending with Day B is not to be counted’ - therefore the 8 days between (and including) 6 June 2014 and 13 June 2014 do not count - time limit extended by 8 days to 15 August 2014
  33. 33. Early conciliation Another example • C dismissed with effect from 8 May 2014; wants to claim UD • Normal time limit would expire 7 August 2014 • C emails EC form to Acas on 5 August 2014 (Day A) • Acas makes contact with C on 8 August 2014 • C agrees to Acas contacting R • Acas makes contact with R on 12 August 2014 • R is not willing to agree a settlement • Acas issues EC certificate and emails it to C on 13 August 2014 (Day B) • Time limit for UD claim expires 13 September 2014 (one month after Day B)
  34. 34. Settlement • If COT3 to settle all claims then no certificate • If COT3 to settle some claims then certificate for rest • New ET1
  35. 35. Issues for Respondents • Checklist • Jurisdiction • Exemptions • Timing • Name of Respondent
  36. 36. Relevant proceedings • Most claims • Can go through EC but then add new claims • C has mix (e.g. unfair dismissal and right to be accompanied), therefore exempt, goes through EC anyway and seeks to rely on clock stop?
  37. 37. Other Exceptions • Joint claims, someone else complied • If R contacted Acas first (no clock stopping unless C presents form) • Mixed proceedings • Unfair Dismissal Interim Relief
  38. 38. Conclusion • Timing issues might present headaches for C and litigation • Will C’s try it on anyway? • Will Rs conciliate in fees regime? • Individual cases will depend on the parties and conciliator • Concern over Acas resources (new conciliators appointed) • 10 days delay already experienced • Longer period of uncertainty for Rs • R may still not receive advance notice of claims

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