6.2 Internal Disputes: Settlement Agreements and Loss of Office Flashcards
What kind of M Res when D paid for loss of office, generally
OR
When will OR of HC be required under 217(1)
If compensation being paid to D of HC by sub
What will employer seek to repeat in SA, and why
RCs and confidential clause to lend weight
Two kinds of ‘relevant transfer’ under TUPE
Business sale or service provision change
Three things courts consider for if RC is reasonably necessary
Geographical scope, duration and seniority of employee
When can employee’s C be varied under TUPE
If ETO reason AND employee consents
What will employee seek to do in SA, in terms of settling
Exclude claims for PI, accrued pension and unknown claims
What part of MA provides for D’s vacation from office
MA 18
What happens if no OR obtained for payment for loss of office
Payment held on trust for C + authorising Ds J+S liable to indemnify C
What will employee seek to include in SA figure
Loss of benefits, e.g. car, gym membership
What can employees do if they refuse to transfer under TUPE
Terminate the contract
What must employee show for UD claim
Dismissal w/ 1/2 years continuous employment
What was the issue before TUPE for employees’ contracts
Novation had to be carried out due to doctrine of privity
Where is the definition of loss of office compensation
in 215(1)
Re-engagement is what?
Similar job w/ same or linked employer
What four claims could D bring if removed under 168
BoC under SA, WD, UD and 994 UP claim
203 ERA regulates what
Formal settlement agreement, which then excludes right to apply to ET
How do you show redundancy was a fair reason to rebut UD
Business shut down/need for employees reduced
What is the prima facie position on restraints of trade clauses
Prima facie void and unenforceable
What is the remedy for WD claim
Damages w/ duty on ex-employee to mitigate
What is the effect of a dismissal being automatically unfair under TUPE
Transfers to purchaser
5 far reasons for UD
Incapable, bad conduct, redundancy, statutory illegality or other substantial reason
What are the criteria under 203 ERA for settlement agreements
Written, relate to particular Ps, state employee received independent advice, by adviser covered by PI insurance + clause states all satisfied
How does employer show followed fair procedure for UD
Employer’s disciplinary procedure + ACAS guidelines
What is an example of when WD claim could be brought
Insufficient notice given for dismissal based on contract
Two possible remedies if employee successful for UD claim
Reinstatement/re-engagement, or compensation
Court for UD claim
ET
What kinds of payments in GF do not require OR under 217(1)
Damages for BoC (e.g. due to WD), or to settle a claim
General rule that need OR when D paid for loss of office
217(1)
What will employee seek to negotiate in SA
Reference (attached in Schedule)
Time limit for bringing claim for UD
3 months
What is a PILON clause
pay in lieu of notice
What will employer seek to provide for in SA, and why
Buyback of employee’s shares to avoid 994 claim, and Os of employee during handover period
What is the general max length of RC
12 months
How is a compensatory award for UD made up
Of basic award and compensatory award
Can WD and UD run concurrently?
Yes
When do RCs become unenforceable (action by employer)
If BoC by employer
How is the basic award of UD worked out
Age factor x service years completed x weekly pay
How is the compensatory award part of UD worked out
Loss actually suffered, subject to statutory max
What will employer seek to do in SA, in terms of settling
Settle all claims, made or not
What is the consequence if transferee does not hold proper consultation w/ employees under TUPE
Large penalties for both transferee and transferor - up to 13 weeks’ pay/employee
Are damages for WD covered by 217?
No, per 220
How many fair reasons by employer under UD
5
When is there no need to show continuous employment for UD claim
If dismissed due to e.g. pregnancy or maternity leave
What should a formal settlement agreement fulfil
Criteria in 203 ERA
What happens if WD and UD run concurrently?
Reduce UD compensation by WD damages to prevent double recovery
What happens to RCs if BoC by employer
Unenforceable due to repudiators breach
What is the issue in 220(1) w/ regard to excluding payments to settle claims
May also apply to future claims, BUT it is uncertain so get OR to be safe
What is the effect of TUPE
Automatically transfers employment Cs along w/ rights and liabilities to purchaser
Why is employee excluded from workplace under GL
To protect confidential info, e.g. know how or industry knowledge
Time limit on WD claim
HC + CC 6 years; ET 3 months
What is an ETO reason - what does it stand for
Economic, technical or organisational reason
What is the statutory minimum notice period for termination of D below 2 years’ employment
1 week
When does employee have to show 2 years continuous employment for UD
Dismissed on/after 6th April 2012
When is there no need for 217(1) OR for compensation for loss of office
Payment below £200, payment in GF
What is also required if bringing WD claim in ET
ACAS mandatory conciliation
Two parts of CA excluding 217(1) OR
220 and 221
What must be done before GM to pass OR for 217(1) (compensations for loss of office)
Memo setting out particulars available for 15 days prior to GM
What must the transferee do under TUPE
Hold a proper consultation w/ employees
What kind of claim is UD
Statutory
When are RoTs valid
Protecting legit interest and no more than reasonably necessary
What happens if either employee or employer breaches ACAS guidelines for dismissal
Increase (by employer) or decrease (by employee) award by 25%
Where is an unfair dismissal in statute
Under ERA
What kind of claim is WD
Contractual
What is the limit on damages in ET for WD
£25k
What will courts do if RC unenforceable in C
Strike it out and leave the remainder IF survives blue pencil test
What must employer show if employee makes out UD claim
Fair reason + fair procedure
What clause can be included so that notice clause in contract need not be adhered to, and no WD claim for breaching
PILON
What case shows that it is possible to have SA breach CA provisions
Russell v Northern Bank
What court for WD claim
CC, HC or ET
3 kinds of RC
Non-competition, non-solicitation and non-dealing
What is the tax treatment of compensation for loss of office
First £30k tax free, unless contractual (e.g. for unused holiday)
What is reinstatement
Same job w/ same employer
What is considered to work out compensatory award for UD
Immediate + future loss of wages
How is gardening leave different from PILON
Employee remains employed for notice period in GL, but excluded from workplace
When is a dismissal automatically unfair under TUPE
If dismissed due to TUPE w/o ETO reason
When does employee only have to show 1 year continuous employment for UD
Dismissed before 6th April 2012
When do the TUPE Regulations 2006 apply
If ‘relevant transfer’
What must company do if employee to enter into new RCs in SA
Give consideration - can be nominal sum
What will court consider for if redunancy fair reason for dismissal (UD CLAIM)
Reason, consultation (must hold consultation), selection process, possibility of appeal and offering alternative employment if possible
What must employee prove for statutory redundancy payment
At least 2 years continuous employment
Statutory minimum notice if over 2 years’ employment
1 week for every year service, up to 12 years
