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Changing Terms And Conditions And Negotiating Settlements Notes

LPC Law Notes > Employment Law Notes

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A more recent version of these Changing Terms And Conditions And Negotiating Settlements notes – written by University Of Law students – is available here.

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CHANGING TERMS AND CONDITIONS AND NEGOTIATING SETTLEMENTS TRIBUNAL PROCEDURETIME LIMITS FOR THE APPLICATIO N

EARLY CONCILIATI ON????

The time limit for claims of unfair dismissal, wrongful dismissal and discrimination is three months from the dismissal or the act of discrimination or within such further period as the tribunal considers reasonable where it was not reasonably practicable for the complaint to be presented within three months (s 111 ERA 1996) The time limit for a redundancy payment claim is six months from the termination of the employment Where the statutory dismissal and disciplinary procedure or grievance procedure applies, the time limit for all the claims may be extended by up to three months The time limits above may extended by up to six weeks due to the Early Conciliation process Before applying to the Tribunal, claimant must apply to ACAS for early conciliation If conciliation is impossible within the 'prescribed period' (4-6 weeks) or otherwise if the prescribed period expires, an Early Conciliation Certificate will be issued which contains basic information such as the name of the parties, unique ACAS reference number and date of issue. Clock stops in relation to relevant time limits The claim is started by a claimant presenting a claim form, the ET1, to a regional office of the employment tribunals (Rule 8) The claim must be on the prescribed form available online at www.employmenttribunals.gov.uk When received, a copy of the form will be sent to the respondent and to ACAS Fee of (Level 1 PS160; Level 2 PS250) on issue of claim (Rule 11) The respondent must submit the response form, ET3 (Rule 16), within 28 days of the date when the respondent was sent a copy of the ET1 If the respondent needs more time, the respondent must submit the request to the tribunal within the 28 day period (Rule 20) If the respondent fails to comply with the time limit the respondent is barred from participating in the proceedings. Judge will decide to what extent respondent employer should be allowed to participate in future proceedings.

STARTING A CLAIM - ET1RESPONDIN G TO A CLAIM - ET3INITIAL CONSIDERA TION (RULE 26)

Employment Judge may:
? Make case management order
? List case for preliminary or final hearing
? Propose mediation or some other form of dispute resolution
? Dismiss claim or part of claim if Judge considers that there is NO reasonable prospect of success (Rule 27)
? Where the respondent fails to submit a response or request for an extension of time within the time limit a tribunal chairman may decide the claim without a hearing
? The default judgment can deal with both liability and the remedy
? The parties will be sent a copy of the default judgment and they have the right to have it reviewed

DEFAULT JUDGMENTS

CASE MANAGEME NT (RULE 29)????

Strike out claim (Rule 37) Make unless order (Rule 38) Order a deposit (Rule 39) If there is a hearing, it will be a preliminary hearing (Rule 53)

(a) conduct a preliminary consideration of the claim and make a case management

PRELIMINA RY HEARING (RULE 5356)

THE HEARING (RULE 5759)

TRIBUNAL DECISION (RULE 62(5)

REVIEWS

APPEALS

order; (b) determine preliminary issues (eg an issue as to whether the claim was brought in time, or whether the claimant has sufficient continuity of service or whether the employee was dismissed). The Employment Judge can give judgment at the hearing on preliminary matters, which may result in the proceedings being struck out so that a final hearing is no longer required (see Rule 37 below); (c) consider whether to strike out a claim (see 6.4.7.2 below); (d) order payment of a deposit under Rule 39 (see 6.4.7.4 below); (e) explore the possibility of settlement.
? Fee will have to be paid PS950 (unless the claimant qualifies for remission from fees)
? Most cases are heard by a single judge (except for discrimination cases)
? Case may be heard by a panel of three people, a legally qualified chairman, and two lay members, one from the employer's perspective and one from the employees
? The parties rarely make opening speeches and the main evidence is usually given by submission of the written witness statements
? The examination in chief (witness statements if tribunal directs), crossexamination (to elicit facts favourable to your case - leading questions may be asked) and re-examination (to repair any damage done by cross-examination - no leading questions) are based on the written witness statement
? At the end of the case each party will make a closing speech (recapitulate the evidence presented for your client and address the tribunal on any points of law) with the party who started the proceedings giving the last speech Order

1. Claimant opened

2. Claimant cross-examined

3. Defendant cross examined

4. Defendant re-examined

5. Defendant closing speech

6. Claimant closing speech

7. Liability

8. Quantum Where there has been a hearing, an employment tribunal decision which is a judgment must (Rule 62(5)): (a) identify the issues which the tribunal has determined; (b) state the findings of fact relevant to the issues which have been determined; (c) concisely identify the relevant law; (e) state how that law has been applied to the findings of fact in order to decide the issues; and (f ) where the judgment includes a financial award, include a table or other means of showing how the amount or sum has been calculated. A failure to do this will amount to an error of law (see Balfour Beatty Power Networks Ltd v Wilcox [2007] IRLR 63).
? The tribunal can review its own decision if it feels that the hearing was not fair to one party or because new evidence has become available which was not available at the original hearing
? An application for a review must be made within 14 days of the tribunal's decision being sent to the parties AND must explain why the decision was wrong (ie, because new evidence has become available which was not available at the original hearing)?

An appeal can be made on an error of law only The appeal must be lodged at the Employment Appeal tribunal within 42 days of the tribunal's decision being sent to the parties

HOW CAN A CONTRACT BE VARIED?An existing contract of employment can be varied only with the agreement of both parties. Changes may be agreed on an individual basis or through a collective agreement (ie:

?
HOW?agreement between employer and employee or their representatives (trade unions or workforce representatives)). An employer who is proposing to change an employee's contract of employment should fully consult with that employee or his or her representative(s) and explain and discuss the reasons for the change. Employees are far more likely to accept changes if they can understand the reasons behind them and have an opportunity to express their views. Involving employees makes good business sense, as it drives up levels of employee engagement and motivation. Variations to the contract can be agreed verbally or in writing. It is preferable for any agreed changes to be recorded in writing. Where a variation to the contract has been agreed and the changes concern particulars which must be included in the written statement of terms and conditions, the employer should give written notification of the change to the employee, within a month of the change taking effect.

EMPLOYER PROCEDURE TO IMPLEMENT CHANGE OF CONTRACT IMPOSE NEW TERMS AND CONDITIONS, ISSUE NEW CONTRACTS AND WAIT FOR EMPLOYEES TO REACT

DO NOTHING - DON'T MAKE THE CHANGE

DISMISS ALL EMPLOYEES WITH LESS THAN 1/2 YEARS CONTINUOUS EMPLOYMENT (GIVE CORRECT NOTICE SO NO WD) GIVE ALL EMPLOYEES THE CORRECT NOTICE OF TERMINATION THEN OFFER NEW CONTRACTS OF EMPLOYMENT ON THE NEW HOURS TO START WHEN OLD CONTRACTS EXPIRE (MOST DESIRABLE

ADVANTAGES:
? Gets the employer the result they want
? People may not actually bring a claim DISADVANTAGES
? Risky as you don't know how it will pan out
? People brining claims via constructive dismissal
? People may refuse to work according to the changes ADVANTAGES
? No claims
? No hassle DISADVANTAGES
? Consultant said they need to make the change to stop them losing money
? Could jeopardise the whole business as they need to do something ADVANTAGES
? No claims for UD DISADVANTAGES
? Could be dismissing the people who want to do the hours and are good

ADVANTAGES
? No WD claims
? Keeps employer in control
? Proper procedure means workers have a duty to mitigate so if they have an UD claim they wont get very much DISADVANTAGES
? Some may not accept

OPTION) OFFER UPSET GROUP SEPARATE T&C'SWould create animosity amongst other employees

VARIATION OF TERMS AND CONDITIONS TASK Client:

Robert Graham

Position:

Chief Executive of Weyford Further Education College

Objective: work)

Change to SOME employees terms and conditions (specifically hours of

1. What possible claims could arise out of the proposed variation?
If contract unilaterally imposed: If you impose a new contract unilaterally you will be in breach of contract and your employees may well:
? make legal claims against the company for constructive dismissal if the breach is fundamental and significant (wrongful dismissal and unfair dismissal)
? claim damages for breach of contract at a civil court - wrongful dismissal
? could be discrimination based on sex
? redundancy based on change of hours if reflects lesser need for employees
? indirect discrimination
? claim at an employment tribunal for unlawful deduction from wages if the change affects their pay.
? Imposing a change is also likely to affect the employees' level of engagement, morale and performance
? Is there any breach of Working Time Regulations?
If you can't reach agreement with employees and serve notice to terminate the existing contract and offer employee re-engagement on new terms:This should be considered only after full and thorough consultation with employees and their representatives and treated as a last resort.By doing this you will be dismissing the employee and it is important that you follow a fair dismissal process and offer the employee the right of appeal against their dismissal. Your employee may make a claim to an Employment Tribunal for unfair dismissal. It would be for the Employment Tribunal to decide whether or not the dismissal was fair or unfair.?

Proper notice of the termination of the contract will be as specified (or implied) in the employee's contract, or the minimum statutory notice period, whichever is the longer. Whilst you would not be breaching your employees' contract by doing this your employees could claim unfair dismissal if they have the qualifying length of service to do that.NOTE: If you decide to dismiss and offer re-engagement on the new terms to 20 or more employees then there is a legal obligation for you to collectively consult with any recognised trade unions or workforce representatives. The penalty for failing to collectively consult could be a Protective Award for all affected employees up to a maximum of 90 days pay.

If employees stay and work under protest:?

If the employees work under the new terms and make it clear to you that they do not agree to the change they can take legal action at a civil court to sue you for breach of contract. The court will consider whether the company is in breach of contract and may award the employees for damages suffered as a result of the breach of contract. or the employees can bring a claim for unlawful deduction from wages if the change results in a reduction in wages.

What procedure should employer follow to implement the change?
NEGOTIATE WITH THE EFFECTED EMPLOYEES?

An existing contract of employment can be varied only with the agreement of both parties. Changes may be agreed on an individual basis or through a collective agreement (ie: agreement between employer and employee or their representatives (trade unions or workforce representatives)). An employer who is proposing to change an employee's contract of employment should fully consult with that employee or his or her representative(s) and explain and discuss the reasons for the change.

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