6.2 Internal Disputes: Settlement Agreements and Loss of Office

Question 1

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

Answer 1

OR

Question 2

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

Answer 2

If compensation being paid to D of HC by sub

Question 3

What will employer seek to repeat in SA, and why

Answer 3

RCs and confidential clause to lend weight

Question 4

Two kinds of ‘relevant transfer’ under TUPE

Answer 4

Business sale or service provision change

Question 5

Three things courts consider for if RC is reasonably necessary

Answer 5

Geographical scope, duration and seniority of employee

Question 6

When can employee’s C be varied under TUPE

Answer 6

If ETO reason AND employee consents

Question 7

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

Answer 7

Exclude claims for PI, accrued pension and unknown claims

Question 8

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

Answer 8

MA 18

Question 9

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

Answer 9

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

Question 10

What will employee seek to include in SA figure

Answer 10

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

Question 11

What can employees do if they refuse to transfer under TUPE

Answer 11

Terminate the contract

Question 12

What must employee show for UD claim

Answer 12

Dismissal w/ 1/2 years continuous employment

Question 13

What was the issue before TUPE for employees’ contracts

Answer 13

Novation had to be carried out due to doctrine of privity

Question 14

Where is the definition of loss of office compensation

Answer 14

in 215(1)

Question 15

Re-engagement is what?

Answer 15

Similar job w/ same or linked employer

Question 16

What four claims could D bring if removed under 168

Answer 16

BoC under SA, WD, UD and 994 UP claim

Question 17

203 ERA regulates what

Answer 17

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

Question 18

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

Answer 18

Business shut down/need for employees reduced

Question 19

What is the prima facie position on restraints of trade clauses

Answer 19

Prima facie void and unenforceable

Question 20

What is the remedy for WD claim

Answer 20

Damages w/ duty on ex-employee to mitigate

Question 21

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

Answer 21

Transfers to purchaser

Question 22

5 far reasons for UD

Answer 22

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

Question 23

What are the criteria under 203 ERA for settlement agreements

Answer 23

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

Question 24

How does employer show followed fair procedure for UD

Answer 24

Employer’s disciplinary procedure + ACAS guidelines

Question 25

What is an example of when WD claim could be brought

Answer 25

Insufficient notice given for dismissal based on contract

Question 26

Two possible remedies if employee successful for UD claim

Answer 26

Reinstatement/re-engagement, or compensation

Question 27

Court for UD claim

Answer 27

ET

Question 28

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

Answer 28

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

Question 29

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

Answer 29

217(1)

Question 30

What will employee seek to negotiate in SA

Answer 30

Reference (attached in Schedule)

Question 31

Time limit for bringing claim for UD

Answer 31

3 months

Question 32

What is a PILON clause

Answer 32

pay in lieu of notice

Question 33

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

Answer 33

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

Question 34

What is the general max length of RC

Answer 34

12 months

Question 35

How is a compensatory award for UD made up

Answer 35

Of basic award and compensatory award

Question 36

Can WD and UD run concurrently?

Answer 36

Yes

Question 37

When do RCs become unenforceable (action by employer)

Answer 37

If BoC by employer

Question 38

How is the basic award of UD worked out

Answer 38

Age factor x service years completed x weekly pay

Question 39

How is the compensatory award part of UD worked out

Answer 39

Loss actually suffered, subject to statutory max

Question 40

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

Answer 40

Settle all claims, made or not

Question 41

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

Answer 41

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

Question 42

Are damages for WD covered by 217?

Answer 42

No, per 220

Question 43

How many fair reasons by employer under UD

Answer 43

5

Question 44

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

Answer 44

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

Question 45

What should a formal settlement agreement fulfil

Answer 45

Criteria in 203 ERA

Question 46

What happens if WD and UD run concurrently?

Answer 46

Reduce UD compensation by WD damages to prevent double recovery

Question 47

What happens to RCs if BoC by employer

Answer 47

Unenforceable due to repudiators breach

Question 48

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

Answer 48

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

Question 49

What is the effect of TUPE

Answer 49

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

Question 50

Why is employee excluded from workplace under GL

Answer 50

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

Question 51

Time limit on WD claim

Answer 51

HC + CC 6 years; ET 3 months

Question 52

What is an ETO reason - what does it stand for

Answer 52

Economic, technical or organisational reason

Question 53

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

Answer 53

1 week

Question 54

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

Answer 54

Dismissed on/after 6th April 2012

Question 55

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

Answer 55

Payment below £200, payment in GF

Question 56

What is also required if bringing WD claim in ET

Answer 56

ACAS mandatory conciliation

Question 57

Two parts of CA excluding 217(1) OR

Answer 57

220 and 221

Question 58

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

Answer 58

Memo setting out particulars available for 15 days prior to GM

Question 59

What must the transferee do under TUPE

Answer 59

Hold a proper consultation w/ employees

Question 60

What kind of claim is UD

Answer 60

Statutory

Question 61

When are RoTs valid

Answer 61

Protecting legit interest and no more than reasonably necessary

Question 62

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

Answer 62

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

Question 63

Where is an unfair dismissal in statute

Answer 63

Under ERA

Question 64

What kind of claim is WD

Answer 64

Contractual

Question 65

What is the limit on damages in ET for WD

Answer 65

£25k

Question 66

What will courts do if RC unenforceable in C

Answer 66

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

Question 67

What must employer show if employee makes out UD claim

Answer 67

Fair reason + fair procedure

Question 68

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

Answer 68

PILON

Question 69

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

Answer 69

Russell v Northern Bank

Question 70

What court for WD claim

Answer 70

CC, HC or ET

Question 71

3 kinds of RC

Answer 71

Non-competition, non-solicitation and non-dealing

Question 72

What is the tax treatment of compensation for loss of office

Answer 72

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

Question 73

What is reinstatement

Answer 73

Same job w/ same employer

Question 74

What is considered to work out compensatory award for UD

Answer 74

Immediate + future loss of wages

Question 75

How is gardening leave different from PILON

Answer 75

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

Question 76

When is a dismissal automatically unfair under TUPE

Answer 76

If dismissed due to TUPE w/o ETO reason

Question 77

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

Answer 77

Dismissed before 6th April 2012

Question 78

When do the TUPE Regulations 2006 apply

Answer 78

If 'relevant transfer'

Question 79

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

Answer 79

Give consideration - can be nominal sum

Question 80

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

Answer 80

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

Question 81

What must employee prove for statutory redundancy payment

Answer 81

At least 2 years continuous employment

Question 82

Statutory minimum notice if over 2 years' employment

Answer 82

1 week for every year service, up to 12 years