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The end of the affair – dealing with the termination of the employment relationship
30 May 2007
Shazia Ali- Webber – Mills & Reeve
Arzu Ozel – Mills & Reeve
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Implementing Dismissals
Overview
Unfair dismissal
Employments Right Act 1996 – six reasons for dismissal
General Reasonableness
Substantive Fairness – Was it reasonable to dismiss
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Unfair Dismissal
Statutory Procedure
• Letter-Basis of the Decision
• Meeting
• Appeal
Gibbons Report
Contractual Procedure (no less favourable)
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Unfair Dismissal
General Fairness
• Section 98 ERA 1996 o Did the employer act reasonably in dismissing o In all the circumstances o Including the employer’s size and administrative resourceso To be determined in accordance with ‘equity and the substantial
merits of the case’
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Requirements of procedural fairness
Conduct
• Full investigation
• Staged warnings unless gross misconduct
• British Home Stores
Redundancy
• Warning in good time
• Objective selection criteria
• Consultation
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Requirements of procedural fairness
Capability• Performance
o Set reasonable targets o Over a reasonable periodo Monitor o Give staged warnings
• Sicknesso Long term or short term (DDA) o Medical evidence o Balance between needs of the organisation and effect of
dismissal on employee
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Requirements of procedural fairness
Identifying the reason for dismissal
Right to be accompanied
Appeals
Trust and confidence
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Consequences of being ‘unfair’
Does following a fair procedure matter?
Provision for uplifting awards where there has been non-
compliance between 10 – 50%
Automatic unfair dismissal
Company procedures
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But Must We Follow The Process?
• The ‘without prejudice’ meeting
• When to hold ito At an early stage?o After procedure implemented?o After procedure completed?
• The ‘doing a deal’ problem o Valuation of settlement o Referenceso Announcemento Dignity
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Valuing a settlement and compromise agreements
30 May 2007
Shazia Ali- Webber
Mills & Reeve
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Introduction-Compromise Agreements
Valuing a settlement, the need for and essential
terms of a compromise agreement
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Valuing the settlement
How much will it cost?
Value of benefits under contract of employment
Potential awards in tribunal
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Valuing contractual claims
Consider all terms Loss of salary and benefits for notice period Is there a PILON? Bonuses Share options Contractual disciplinary and dismissal procedures Contractual redundancy pay Holiday entitlement, outstanding salary, expenses etc
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Valuing statutory claims (1)
Complex and imprecise science;
Overlapping claims?
Consider both:
• Value of claim; and
• Chance of success.
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Valuing statutory claims (2)
Loss of earnings:• Expressed in terms of a number of weeks’ or months’ pay;
• Assessment depends on type of claim;
• Depends on industry and job market and likelihood of getting another job.
Cap on unfair dismissal compensation:
Compensatory award currently capped at £60,600
Basic award currently capped at £9,300
Uplifts for failure to comply with statutory minimum procedures.Cont…
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Valuing statutory claims (3)
Uncapped compensation for discrimination
Injury to feelings, aggravated, exemplary damages
Other common claims might include:
• Equal pay;
• Statutory redundancy compensation;
• Personal injury damages;
• Protective awards.
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Other considerations
Non-monetary benefits:
• Agreed reference;
• Outplacement counselling or training.
Saving management time
Saving legal expense
Preserving confidentiality
Maintaining restrictive covenants.
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COT3
Usually used once a claim has been filed Fixed conciliation periods for most claims ACAS aims to assist parties reach agreement before an ET
hearing No need for employee to have legal advice Wording relatively straightforward Can extinguish statutory claims
Cont…
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COT3 continued…
Only for ACAS conciliated settlements – not rubber-
stamping
Usually only used where proceedings have begun or
notice has been given, or employee forced to resign
Not often appropriate for complex settlements.
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Requirements of a compromise agreement
Must be in writing It must relate to particular proceedings The individual must have received advice from an independent adviser
about the terms and effect of the agreement The adviser must be covered by either a contract of insurance or an
indemnity for members of a professional body It must identify the adviser It must state that the conditions regulating compromise agreements
have been satisfied.
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“Particular proceedings”
Hinton v University of East London (2005)
General waiver can dispose of contractual claims.
Statutory claims whether actual or potential must be clearly
identified – general waiver not enough.
Generic description - “unfair dismissal” or reference to the
section of the statute is required.
If claim already started – give brief factual and legal description
of claim.
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Claims the employee is not aware of?
Hilton Hotels v McNaughton [2005]
Equal Pay Act referred to but employee not aware of possible
claim.
Compromise agreement only said it settled claims the
employee believed she had. She could bring the equal pay
claim.
Words must be absolute and unequivocal in order to
compromise a claim of which the employee was unaware.
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Common clauses
Settlement amounts Tax Compromised claims Confidentiality and restrictions No “bad-mouthing” clauses Agreed references Warranty that there are no other claims Employer’s contribution to legal costs “Clawback”
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Practical tips
Consider whether necessary
Do your homework – check the contract
Set your parameters
Timing
Without prejudice
Keep the upper hand
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Discretionary bonuses
Arzu Ozel – Mills & Reeve
30 May 2007
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Discretionary bonuses: How discretionary are they?
Depends on clause within the employee’s contract of
employment
Custom and Practice
Employee may not receive the amount they expect
Employer may refuse to pay
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Discretionary bonuses continued…
Gross misconduct – no requirement to pay a discretionary
bonus
Payment in lieu of notice (PILON)
If employer elects to pay employee PILON
No PILON in employee’s contract
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Recent case law
Horkulak –v- Cantor Fitzgerald International [2004] EWCA
Employee entitled to “fair and rational assessment of his
entitlement”
Employer is obliged to exercise its discretion in good faith
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Recent case law continued…
Commerzbank AG –v- Keen [2006]
Burden of proof is on employee to show that employer’s
decision is “irrational” or “perverse”
Employee entitled to know reasons behind discretionary bonus
award
Employee is not dealing with his employers “as a consumer”
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Final thoughts
Employer cannot unreasonably withhold payment of a
discretionary bonus
Employee entitled to know reasons behind their
discretionary bonus award
Employers should ensure that any reasons given are
market based
Aim to have frank and open discussions with employees
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Discrimination case law
30 May 2007
Shazia Ali-Webber – Mills & Reeve
Arzu Ozel – Mills & Reeve
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Extension to goods and services: April 2007
Widening of definition of religion or belief: agnostics and
atheists covered
Will political extremists – eg the BNP – now be covered?
Religion or Belief: legislation
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Religion or Belief: cases
Azmi v Kirkless Metropolitan Borough Council 2007
Mrs Azmi told to remove veil whilst teaching
Is clothing ban direct or indirect discrimination?
Is it justified?
What steps to take before imposing a clothing ban?
The Sunday observance and Sikh turban cases
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Sexual Orientation
Extension to goods and services: April 2007
Recent cases
Ditton v CP Publishing Limited 2007
Other recent claims
More education and training needed?
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Sex Discrimination
Sex Discrimination Act 1975
The burden of proof
Claimant has to prove:
• They were treated differently by employer
• Treatment could have been as result of sex discrimination
Burden of proof shifts to employer
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Sex Discrimination: case law
Madrassy –v- Nomura International Plc [2007]
Ms Madrassy employed as senior banker
Went on maternity leave
Restructuring at Nomura led to redundancies
She was dismissed in November 2001 on grounds of
redundancy
Did she succeed in shifting the burden of proof?
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Age Discrimination
Employment Equality (Age) Regulations 2006
Came into force October 2006
No decided cases in UK yet
Irish case: Cunningham –v- BMS Sales Ltd [2007]
ACAS’ advice to employers
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Wake up – it’s over!
Well, not quite – any questions?
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