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BLP > 6.2 Internal Disputes: Settlement Agreements and Loss of Office > Flashcards

6.2 Internal Disputes: Settlement Agreements and Loss of Office Flashcards

1
Q

What kind of M Res when D paid for loss of office, generally

A

OR

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2
Q

When will OR of HC be required under 217(1)

A

If compensation being paid to D of HC by sub

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3
Q

What will employer seek to repeat in SA, and why

A

RCs and confidential clause to lend weight

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4
Q

Two kinds of ‘relevant transfer’ under TUPE

A

Business sale or service provision change

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5
Q

Three things courts consider for if RC is reasonably necessary

A

Geographical scope, duration and seniority of employee

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6
Q

When can employee’s C be varied under TUPE

A

If ETO reason AND employee consents

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7
Q

What will employee seek to do in SA, in terms of settling

A

Exclude claims for PI, accrued pension and unknown claims

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8
Q

What part of MA provides for D’s vacation from office

A

MA 18

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9
Q

What happens if no OR obtained for payment for loss of office

A

Payment held on trust for C + authorising Ds J+S liable to indemnify C

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10
Q

What will employee seek to include in SA figure

A

Loss of benefits, e.g. car, gym membership

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11
Q

What can employees do if they refuse to transfer under TUPE

A

Terminate the contract

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12
Q

What must employee show for UD claim

A

Dismissal w/ 1/2 years continuous employment

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13
Q

What was the issue before TUPE for employees’ contracts

A

Novation had to be carried out due to doctrine of privity

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14
Q

Where is the definition of loss of office compensation

A

in 215(1)

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15
Q

Re-engagement is what?

A

Similar job w/ same or linked employer

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16
Q

What four claims could D bring if removed under 168

A

BoC under SA, WD, UD and 994 UP claim

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17
Q

203 ERA regulates what

A

Formal settlement agreement, which then excludes right to apply to ET

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18
Q

How do you show redundancy was a fair reason to rebut UD

A

Business shut down/need for employees reduced

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19
Q

What is the prima facie position on restraints of trade clauses

A

Prima facie void and unenforceable

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20
Q

What is the remedy for WD claim

A

Damages w/ duty on ex-employee to mitigate

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21
Q

What is the effect of a dismissal being automatically unfair under TUPE

A

Transfers to purchaser

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22
Q

5 far reasons for UD

A

Incapable, bad conduct, redundancy, statutory illegality or other substantial reason

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23
Q

What are the criteria under 203 ERA for settlement agreements

A

Written, relate to particular Ps, state employee received independent advice, by adviser covered by PI insurance + clause states all satisfied

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24
Q

How does employer show followed fair procedure for UD

A

Employer’s disciplinary procedure + ACAS guidelines

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25
Q

What is an example of when WD claim could be brought

A

Insufficient notice given for dismissal based on contract

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26
Q

Two possible remedies if employee successful for UD claim

A

Reinstatement/re-engagement, or compensation

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27
Q

Court for UD claim

A

ET

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28
Q

What kinds of payments in GF do not require OR under 217(1)

A

Damages for BoC (e.g. due to WD), or to settle a claim

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29
Q

General rule that need OR when D paid for loss of office

A

217(1)

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30
Q

What will employee seek to negotiate in SA

A

Reference (attached in Schedule)

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31
Q

Time limit for bringing claim for UD

A

3 months

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32
Q

What is a PILON clause

A

pay in lieu of notice

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33
Q

What will employer seek to provide for in SA, and why

A

Buyback of employee’s shares to avoid 994 claim, and Os of employee during handover period

34
Q

What is the general max length of RC

A

12 months

35
Q

How is a compensatory award for UD made up

A

Of basic award and compensatory award

36
Q

Can WD and UD run concurrently?

A

Yes

37
Q

When do RCs become unenforceable (action by employer)

A

If BoC by employer

38
Q

How is the basic award of UD worked out

A

Age factor x service years completed x weekly pay

39
Q

How is the compensatory award part of UD worked out

A

Loss actually suffered, subject to statutory max

40
Q

What will employer seek to do in SA, in terms of settling

A

Settle all claims, made or not

41
Q

What is the consequence if transferee does not hold proper consultation w/ employees under TUPE

A

Large penalties for both transferee and transferor - up to 13 weeks’ pay/employee

42
Q

Are damages for WD covered by 217?

A

No, per 220

43
Q

How many fair reasons by employer under UD

A

5

44
Q

When is there no need to show continuous employment for UD claim

A

If dismissed due to e.g. pregnancy or maternity leave

45
Q

What should a formal settlement agreement fulfil

A

Criteria in 203 ERA

46
Q

What happens if WD and UD run concurrently?

A

Reduce UD compensation by WD damages to prevent double recovery

47
Q

What happens to RCs if BoC by employer

A

Unenforceable due to repudiators breach

48
Q

What is the issue in 220(1) w/ regard to excluding payments to settle claims

A

May also apply to future claims, BUT it is uncertain so get OR to be safe

49
Q

What is the effect of TUPE

A

Automatically transfers employment Cs along w/ rights and liabilities to purchaser

50
Q

Why is employee excluded from workplace under GL

A

To protect confidential info, e.g. know how or industry knowledge

51
Q

Time limit on WD claim

A

HC + CC 6 years; ET 3 months

52
Q

What is an ETO reason - what does it stand for

A

Economic, technical or organisational reason

53
Q

What is the statutory minimum notice period for termination of D below 2 years’ employment

A

1 week

54
Q

When does employee have to show 2 years continuous employment for UD

A

Dismissed on/after 6th April 2012

55
Q

When is there no need for 217(1) OR for compensation for loss of office

A

Payment below £200, payment in GF

56
Q

What is also required if bringing WD claim in ET

A

ACAS mandatory conciliation

57
Q

Two parts of CA excluding 217(1) OR

A

220 and 221

58
Q

What must be done before GM to pass OR for 217(1) (compensations for loss of office)

A

Memo setting out particulars available for 15 days prior to GM

59
Q

What must the transferee do under TUPE

A

Hold a proper consultation w/ employees

60
Q

What kind of claim is UD

A

Statutory

61
Q

When are RoTs valid

A

Protecting legit interest and no more than reasonably necessary

62
Q

What happens if either employee or employer breaches ACAS guidelines for dismissal

A

Increase (by employer) or decrease (by employee) award by 25%

63
Q

Where is an unfair dismissal in statute

A

Under ERA

64
Q

What kind of claim is WD

A

Contractual

65
Q

What is the limit on damages in ET for WD

A

£25k

66
Q

What will courts do if RC unenforceable in C

A

Strike it out and leave the remainder IF survives blue pencil test

67
Q

What must employer show if employee makes out UD claim

A

Fair reason + fair procedure

68
Q

What clause can be included so that notice clause in contract need not be adhered to, and no WD claim for breaching

A

PILON

69
Q

What case shows that it is possible to have SA breach CA provisions

A

Russell v Northern Bank

70
Q

What court for WD claim

A

CC, HC or ET

71
Q

3 kinds of RC

A

Non-competition, non-solicitation and non-dealing

72
Q

What is the tax treatment of compensation for loss of office

A

First £30k tax free, unless contractual (e.g. for unused holiday)

73
Q

What is reinstatement

A

Same job w/ same employer

74
Q

What is considered to work out compensatory award for UD

A

Immediate + future loss of wages

75
Q

How is gardening leave different from PILON

A

Employee remains employed for notice period in GL, but excluded from workplace

76
Q

When is a dismissal automatically unfair under TUPE

A

If dismissed due to TUPE w/o ETO reason

77
Q

When does employee only have to show 1 year continuous employment for UD

A

Dismissed before 6th April 2012

78
Q

When do the TUPE Regulations 2006 apply

A

If ‘relevant transfer’

79
Q

What must company do if employee to enter into new RCs in SA

A

Give consideration - can be nominal sum

80
Q

What will court consider for if redunancy fair reason for dismissal (UD CLAIM)

A

Reason, consultation (must hold consultation), selection process, possibility of appeal and offering alternative employment if possible

81
Q

What must employee prove for statutory redundancy payment

A

At least 2 years continuous employment

82
Q

Statutory minimum notice if over 2 years’ employment

A

1 week for every year service, up to 12 years

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