Moving Away from the Green...

Employment Masterclass

David Potter, Freeths

Kim Howell, Geldards

Rhys Wyborn, Geldards

Rachel Hatton, Geldards

Rachel Mills, Geldards

Tim Sheppard, Barrister, No5 Chambers

12 October 2016

www.emlawshare.co.uk

Agenda

Registration

General Employment Law Update & Proposed changes to public sector exit

payments (Geldards)

Practical Tips on absence management (Freeths)

Break

The Removal of the DIP Process (Geldards)

Whistleblowing (Freeths)

Lunch

Employment Tribunal Preparation & Advocacy (Tim Sheppard)

TUPE (Geldards)

Calculating continuity of service and the effect of the Redundancy Modification Order

(Freeths)


Employment Law Update


Legislation


Modern Slavery Act 2015

• Section 52 Modern Slavery Act 2015

‒ Came into force in November 2015

‒ A duty for public authorities to notify the Secretary

of State of suspected victims of slavery or human

trafficking

‒ Requirement to provide specific information


National Living Wage

• Compulsory premium added on to the NMW for all

workers aged 25 and over

• In effect from April 2016

• Initial rate of £7.20 – reviewed annually and

increased in April.


Trade Union Act 2016

• Received Royal Assent on 4 March 2016

• Commencement date currently unknown

• 50% turnout in votes for industrial action

• 40% of support from all eligible members in certain

public services

• 6 month time limit for action

• Clear description of dispute and proposed action on

ballot paper

• Provisions in relation to Trade Union subscriptions


Immigration Act 2016

• 12 July 2016

• New offence of illegal working (section 34)

– Enable earnings to be seized under the

Proceeds of Crime Act 2002

• Extension of existing criminal offence of knowingly

employing an illegal migrant where the employer

has ‘reasonable cause’ to believe that a person

is an illegal worker (section 35)

– Increase period imprisonment from 2 to 5 years


Immigration Act 2016

• English language requirement for customer-facing

roles (section 77 Part 7)

• Code of Practice Published in July 2016

• Not yet in force

Case Law


HR influence in disciplinaries

• Ramphal v Department for Transport

– Employee investigated for issues with his

transport and subsistence claims

– Mr G appointed as investigatory and

disciplinary officer

– Not previously acted in disciplinary

proceedings so met with HR officers

– Mr G submitted draft report to HR



• Ramphal v Department for Transport

– Report was critical but included a number of

points favourable to the claimant

– 6 months of communications between Mr G

and HR

– Amendments suggested by HR

– Complete change of view on Mr G’s factual

findings and recommendations as to sanction –

summary dismissal as opposed to final written

warning



– EAT set aside decision of unfair dismissal

– The report of an Investigating Officer for a

disciplinary enquiry must be the product of their

own investigations

– Inference of improper influence by HR

– HR must limit advice to questions of law and

procedure and process


Contractual provisions in Staff

Handbook • Department for Transport v Sparks and others

• Employees of various agencies of DfT

• Departmental Staff Handbook

– All its terms that were apt for incorporate were to

be incorporated into employees’ contracts of

employment

– Part A expressly stated to be incorporate

– Part B contained guidance and was not incorporate

• Required DfT to undertake consultation before

changes unless they were not detrimental



Handbook • New standardised absence management

procedure (Part A)

• Application for declaratory relief

• High Court

– Provisions for attendance had been

incorporated

– Changes detrimental because employees

could face formal sanctions earlier in the

process



Handbook • Court of Appeal

– Turn upon the precise terms of the documents

– Key question whether provision apt for

incorporation

– Employment documents should be analysed in

accordance with its own terms

• Non-contractual staff handbook preferable


Headscarf ban – conflicting AG

opinions Case No. 1 Achbita and another v G4S Secure

Solutions NV

• Ms A worked as a receptionist for G4S

• Company rule prohibiting the wearing of visible

signs of religious beliefs

• Ms A dismissed for refusing to remove headscarf

• Question to ECJ – whether the headscarf ban

amounted to direct discrimination

• AG recommended ECJ address direct and

indirect discrimination



opinions • Did not amount to Direct Discrimination

• Genuine determining occupational requirement

under Article 4(1) of the Equal Treatment

Directive

• Employees may be expected to moderate the

exercise of their religion in the workplace

• May constitute indirect discrimination but could be

objectively justified



opinions Case No. 2 - Bougnaoui and another v Micropole

SA • Ms B worked as a design engineer for Micropole

• Made clear on recruitment that she would not be able to wear her

headscarf at all times

• Customer complaint

• Ms B refused to comply with request not to wear headscarf in

future

• Dismissed

• Q to ECJ – whether treatment discriminatory or capable of

justification as genuine occupational requirement



opinions • Direct Discrimination

• Dismissed because of a “manifestation” of her religion

• Did not accept that there was a “genuine and

determining occupational requirement”

• Only available in “very limited circumstances”

• Can not justify a blanket exception

• Indirect discrimination

– Employers may have legitimate aim in projecting a

smart or uniform appearance provided any

restriction is proportionate



opinions • AGs opinions not binding

• CJEU judgment expected toward the end of 2016


Whistleblowing protection for

agency workers • McTigue v University Hospital Bristol NHS

Foundation Trust UKEAT/0354/15

• Definition of worker is extended in relation to

whistleblowing section 43K of the ERA 1996

includes: – Workers introduced or supplied to do work by a third person

– The terms of engagement were practice substantially

determined not by him but by the person for whom he works

or worked, by the third person or by both of them



agency workers • Ms McTigue agency worker

• Assigned to work for University Hospital Bristol

NHS Foundation Trust

• Written contract of employment with agency

• Given Trust’s standard form contract

• Removed from assignment brought a detriment

claim based on protected disclosures

• ET concluded that she did not meet the definition

of worker and had no jurisdiction to deal with the

claim



agency workers • EAT held that the tribunal had erred in its

approach, upheld the appeal and remitted the

claim to a fresh tribunal

• Tribunal had incorrectly focused on who

determined the substantial terms

• Should have focused on whether the Trust and

the Agency had substantially determined the

terms

• Not necessary to consider who determined the

majority of/most significant terms


Protecting a disabled employee’s

pay

• G4S Cash Solutions (UK) Ltd v Powell

UKEAT/0243/15

• Mr Powell employed by G4S in a variety of roles

since 1997

• Suffered back pain and by 2012 no longer fit for

work

• Accepted as disabled under the Equality Act 2010

• New role of “key runner” on existing salary

• New role permanent but with a lower rate of pay

• Mr Powell rejected 10% pay reduction and was

dismissed on medical grounds


Protecting a disabled

employee’s pay • Did the reasonable adjustments duty extend to

protecting Mr Powell’s higher rate of pay

indefinitely?

• EAT said:

– It could

– No reason why pay protection could not be a

reasonable adjustment

– Not and “everyday event”

– Part of a package to get an employee back to

work and keep that employee in work


Teacher Dismissals

Pendleton v Derbyshire County Council and The

Governing Body of Glebe Junior School • Ms Pendleton was junior school teacher and a practising

Anglican Christian

• Her husband a head teacher at a local school was convicted and

imprisoned for downloading indecent images of children and

voyeurism

• No evidence Ms P knew about her husband’s activities

• Stood by him – consistent with her marriage vows despite her

head teacher indicating that she struggled to see how the school

could support her if she remained with him

• Dismissed


Teacher Dismissals

• ET dismissed the claim

• EAT allowed the appeal and substituted a finding

of indirect discrimination.

• PCP – policy of dismissing those who chose not

to end a relationship with a person convicted of

making indecent images of children and

voyeurism

• Particular disadvantage for those who held

religious belief in the particular sanctity of

marriage

• Failure to objectively justify


Teacher Dismissals

A v B Local Authority

• Head teacher dismissed for gross misconduct

• Failed to disclose that a man she was in a

relationship with had been convicted of making

indecent images of children

• School felt that her association put the children at

risk

• Head teacher have been advised that she was

under no obligation to disclose

• Dismissed


Teacher Dismissals

• COA held that:

– Head teacher should have realised her association

with the man posed a risk to the children

– She had a duty to inform the school so that

protective steps could be taken

– Not suggested HT could not have continued to

work in the school

– Failure to tell GB of the facts even having been

given an opportunity to reconsider her decision not

to make disclosure

– Dismissal within the band of reasonable responses

Upcoming changes to look

out for


Extending Fair Deal 2013

• Fair Deal requires a new employer to provide staff

transferred from the public sector with continued

access to a public-sector pension scheme

• Expressly excluded local authority transfers affecting

the LGPS

• Consultation proposing to extend the scope of Fair

Deal 2013 to include staff transferred from a local

authority to another service provider

• Include ALMOs

• Draft Local Government Pension Scheme

(Amendment) Regulations 2016


Grandparental leave

• Consultation on extending Shared Parental leave

and Pay to working grandparents

• Consultation also cover:

– Options for streamlining the current system

– Options for simplifying the eligibility

requirements

– Options for simplifying the eligibility

requirements

• After EU referendum


Extending Fair Deal 2013

• Fair Deal requires a new employer to provide staff

transferred from the public sector with continued

access to a public-sector pension scheme

• Expressly excluded local authority transfers affecting

the LGPS

• Consultation proposing to extend the scope of Fair

Deal 2013 to include staff transferred from a local

authority to another service provider

• Include ALMOs

• Draft Local Government Pension Scheme

(Amendment) Regulations 2016


Consultation on extending gender pay

gap reporting to the Public Sector

• Amend Specific Duties Regulations

• Mandatory for public bodies with 250+ employees

to undertake gender pay gap reporting

• England only

• Same provisions as private sector


Consultation on extending gender pay

gap reporting to the Public Sector

• “Snapshot” date of 5 April 2017

• Deadline for responses 30 September 2016

• No date for publication of Government’s response

Changes to public sector

exit payments


The Recovery Provisions

• Recovery provisions

Repayment of Public Sector Exit Payments

Regulations 2016

– Salary of £80,000+

– Return to ANY part of the public sector within

12 months

– Tapered over 12 months

– Cover employer funded pension top-up


The Cap

• Cap (“exit payment threshold”) Public Sector Exit

Payment Regulations 2016 (draft) (latest version 3

March 2016)

• Not before 1 October 2016

– Redundancy and voluntary exit payments

– Payments to reduce or eliminate an actuarial reduction to a

pension on early retirement

– Payments to discharge liability under a fixed-term contract

– Payments by way of shares on loss of employment

– Any other payment (whether or not contractual) made in

consequence of loss of employment (this will include

payments in lieu of notice).

• Waiver


The latest

• Treasury in the process of reviewing and re-

drafting the regulations in relation to the Cap

• Re circulated “in the Autumn”

• Likely to come into force “in the New Year”

• Consultation on exit payment terms due to be

published this month (September)


Limiting exit payment terms

• Limiting public sector exit payment terms

• Consultation launched February 2016 proposing:

– Setting the maximum tariff for calculating exit payments at

three weeks’ pay per year of service

– Capping the maximum number of months’ salary that can be

used when calculating redundancy payments to 15 months

– Setting a maximum salary for the calculation of exit payments

– Enabling the amount of lump sum an individual is entitled to

receive to be tapered as they get close to the normal pension

age or retirement age of the pension scheme to which they

belong, or could belong, in that employment

– Reducing the cost of employer-funded pension top up

payments.


The latest

• Consultation response published 26 September 2016

• No longer a case for fundamental reform

• Terms should continue to be determined at a workforce

level rather than a single exit payment scheme to be

applied across all public sector bodies

• Common framework of upper limits

• Proposals within 3 months

• No meaningful reform then legislation considered


Hidden pit-falls

• Claims for negligent misstatement

– Hagen and ors v ICI Chemicals and Polymers

Ltd and ors (2002)

• Negligent misstatement for failure to

properly explain the full impact and

implications of provisions in relation to TUPE

transfer

• Exit payment negotiated now but will not take

effect until after provisions for recovery and the

cap come into force


Hidden pit-falls

• Contractual and policy issues

– PILON of long standing notice periods

– Review redundancy policies


Hidden pit-falls

• TUPE’d employees

– Cap will not apply where the employee has

entitlement following TUPE transfer

– Differential between employees


Hidden pit-falls

• Impact on low earning but long serving employees

– Limit entitlement to unreduced pension

– Applies even where scheme member is over

55 and eligible to take pension if their

employment ends on the grounds of

redundancy or business efficiency

– Could lead to a choice between employee

funding the reduction themselves or face an

ongoing reduction in pension entitlement


Hidden pit-falls

• Staff planning

– Increase in requests for early retirement or

voluntary redundancy before the provisions

come in


Managing Sickness Absence


• Disability discrimination;

• Unfair dismissal;

• Constructive unfair dismissal;

• Breach of contract (have you complied with your

contractual policies?)

• Personal Injury

Risk Framework


Early Absence Issues

• Employee with less than two years’ service:

– No protection against unfair dismissal;

– May be disabled;

– May be a whistleblower.


Obtaining medical advice

• Medical advice:

– Employee’s GP

– Occupational health

– Consultant

– Fit for Work Service


Fit for Work Service

• Employees referred by GP or employer

• Trigger point – 4 weeks absence

• Telephone assessment

• Return to work plan

• Tax exemption for recommended treatment


Occupational Health Report

• Gallop v Newport City Council

– Employer should not simply “rubber-stamp”

occupational health report that employee is not

disabled.

• Donelien v Liberata

– When will employer “reasonably ought to know” of

disability.


Reasonable adjustments

• Factors to consider:

– Effectiveness

– Practicability

– Financial costs

– Availability of financial assistance

– Employer’s activities and resources


Reasonable adjustments

• Do I need to extend sick pay as a reasonable

adjustment?

• If I move to reduced hours/reduced role, do I need to

maintain pay and benefits?

• Do I need to adjust redundancy selection criteria?

• Do I need to adjust my disciplinary policy/procedure

(and my sanction)?


Dismissing for long-term absence

• Fair procedure

• Fair decision

• Monmouthshire County Council v Harris

– Central question is whether the employer could

reasonably be expected to wait longer before

dismissing;

– Dismissal prior to expiry of sick pay.



• Permanent Health Insurance

• Ill-health retirement

• Frustration of contract

• Do we have to pay notice pay?



• Dealing with an uncommunicative/uncooperative

employee;

• Employee’s failure to assist with obtaining medical

evidence;

• Employee’s failure to attend meetings.


Dismissing for intermittent term absence

• Fair procedure:

- Do we need a policy?

- Clear and reasonable attendance targets

- Reasonable adjustments to targets?


Conduct during sick leave

• According to Facebook, he’s out partying;

• He’s doing a foreigner;

• She’s going on safari


Holidays and sickness absence

• Holidays (under Regulation 13) accrue during long-

term sick leave.

• Employee who has not been able to take holiday

during sick leave should be permitted to carry-over

(but with a limit?)

• Worker falling sick during holiday can reallocate

holiday.


Sickness and disciplinary issues

• Employee too ill to attend a disciplinary hearing;

• Is stress a disability?

• Converting a suspension to sickness absence and

back again.


Abolition of the DIP

Process


• The Local Authorities (Standing Orders)

(England)(Amendment) Regulations 2015

• In force 11 May 2015

• Introduce significant changes regarding the dismissal

of statutory officers of Local Authorities

Abolition of the DIP Process


Relevant Officers

• Chief Finance Officer

– Section 151 Officer

– Financial administration

• Head of the Authority’s Paid Service

– Officer designated under section 4(1) of the Local

Government and Housing Act 1989

– Usually the Chief Executive

• Monitoring Officer

– Designated under section 5(1) Local Government

and Housing Act 1989


Then…

• No disciplinary action in respect of a relevant

officer could be taken by the LA other than in

accordance with the recommendation in a

report made by the Designated Indepedent

Person


The DIP

• No disciplinary action unless:

• Designated Independent Person (‘DIP’) is

appointed

• The DIP had to be agreed between the authority

and the relevant officer (or nominated by the

SOS)

• Incorporate these disciplinary provisions into the

Authority’s Standing Orders


The DIP’s Powers

• Generally tended to be QCs/Solicitors

• Suspension

– LA power to suspend relevant officer for 2 months

– DIP could:

• Direct that the LA terminate any suspension

• Direct that suspension could continue beyond

2months

• Vary terms of suspension

– Direct that no steps toward disciplinary action be

taken unless the DIP agrees until DIP has

reported


The DIP’s Powers

• Evidence

– Inspect any documents relating to the conduct of

the relevant officer

– Require a member of staff to answer questions

concerning the conduct of the relevant officer

• Report

– Make a report to the LA:

• Stating whether evidence support any allegation

of misconduct;

• Recommending disciplinary action which

appears appropriate


Why get rid of the DIP?

• Costly and protracted legal process

• Inflated severance payments

• Put LA at a disadvantage – recommendation of

the DIP had to be followed

• Compare with Wales

– DIP regime maintained

– Extended to cover Head of Democratic

Services


…and now

Local Authorities (Standing Orders) (England)

Amendment Regulations 2015

• Approval of full Council

• Removal of the DIP process

• Introduction of a Panel of Independent Persons in

respect of dismissals

• Requirement to amend Standing Orders in

accordance with these changes


Approval of Full Council

• For the appointment and dismissal of the HPS

& dismissal of MO and CFO

• Take place at a meeting to consider whether

or not to approve a proposal to dismiss a

relevant officer (“relevant meeting”)

• Authority must take into account:

– Any advice, views or recommendation of the Panel

– Any conclusions of any investigation into the

proposed dismissal; and

– Any representations from the Relevant Officer.


Approval of Full Council

• LGA Guidance

– Relevant officer should:

• Be provided with paperwork in advance

• Be allowed to attend and make representations

• Have the right to be accompanied

• Be invited to make written representations in

advance of the meeting


The Independent Panel

• The Panel

– Appointed under section 102(4) Local Government Act 1972

(appointment of committees)

• LA must invite relevant independent persons to be

considered for appointment to the panel

• At least two relevant independent persons should be

appointed

• Five additional local authority elected members?

• Must be appointed at least 20 working days before a

relevant meeting of the authority

• Standing Panel ready to act


Relevant Independent Person

• Person appointed under Section 28(7)Localism

Act 2011

– Not a councillor, officer or their relatives or

friends

– Advertised in a manner which is likely to bring it

to the attention of the public and approved by a

majority


Relevant Independent Person

• Priority for invitations:

– An independent person who has been

appointed by the authority and who is a local

government elector (i.e. a person registered on

the register of electors in the local authority’s

area)

– Any other independent person who has been

appointed by the authority;

– An independent person who has been

appointed by another authority


IDC or Panel System?

IDC

• Investigation

• Meeting to consider the evidence and decide

appropriate action

– Relevant officer would attend to give views

– Right to be accompanied

• Recommendation on disciplinary action

– Short of dismissal IDC can take action itself

– Dismissal recommended refer the matter to the

Panel to advise the authority on the dismissal

proposal


IDC or Panel System?

Panel

• Investigation

• Meeting to consider the evidence and decide

on appropriate action – Protected officer would attend to give views

– Right to be accompanied

• Recommendation on disciplinary action – Dismissal recommended then Panel can put the matter

forward for full Council to consider

– Action short of dismissal proceed in accordance with the

authority’s standard procedures


Additional Considerations

• Investigation

– Necessary?

• Essential part of fair dismissal procedure

• Regulations state that full Council must take into account

conclusions of any investigations before approving a proposal to

dismiss

– Who?

• IDC or Panel?

– Expertise

– Time

– Fees

– Fairness



• IDC or Panel will appoint investigator

– Head of Paid Service (for MO or CFO)?

• Time

• Resourcing

• Can’t investigate themselves

– External person

• ‘DIP like’ investigation!!



Suspension

• No provision in the amended Regulations

Appeal

• Full Council approval no one to overturn the

dismissal decision

• LGA Guidance

– Meeting to consider evidence and decide on

appropriate action – dismissal meeting

– Full Council meeting - appeal


Potential pitfalls

• Policies and Contracts – DIP procedures incorporated into contracts

• Delegated Power?

– Who should action the dismissal and issue notice

• Full Council

• IDC

• Panel

• Executive objections procedure

– Members have a chance to object to dismissal

through mayor/leader


Considerations under the Localism Act

2011

• Section 40 Guidance

– Full Council vote for large salary packages and severance packages

£100,000 +

– Pay policy statements (sections 38 and 39)

• Cover remuneration of “chief officers”:

• Must be approved by a resolution of the authority before it

comes into force.

• Definition of remuneration includes:

– Severance payments

• Not limited to relevant officers – broader definition of “chief officers”

• Accounts and Audit Regulations 2015 – disclosure requirements for

senior employees


Whistleblowing


• Dismissal automatically unfair if the reason, or principal

reason, is that they have made a protected disclosure;

• No qualifying period of service;

• No cap on compensation;

• Detriment – unlawful for employer to subject one of its

workers to a detriment (including threats, disciplinary

action, loss of pay, damage to career prospects) on the

ground that they have made a protected disclosure.

Attractive Head of Claim


Who is protected?

• Workers (Detriment claims)

• Employees (Unfair dismissal and detriment claims

including current and former employees)


Whistleblowing claims

• Has C blown the whistle?

• If C has, has it been done to the right person, in the

right way, for the right reasons?

• If C is a whistleblower is that the cause of the

treatment they are complaining about?


What is a qualifying disclosure?

• A disclosure of information

• Subject matter of disclosure. Information which in the reasonable

belief of the C tends to show that one or more of the following has

taken place or is likely to take place:

– Criminal offences

– Breach of any legal obligation

– Miscarriages of justice

– Danger to the health and safety of any individual

– Damage to the environment

– The deliberate concealing of information about any of the above.


Disclosure of Information

• Distinction between allegation and information

• Cavendish Munro v Geduld

• Kilraine v London Borough of Wandsworth


Is it a protected disclosure?

• Internal - to employer, hotline or third party identified

in whistleblowing policy;

• External disclosures to responsible third party, legal

advisers, prescribed persons, government ministers.

Protected if conditions met.

• Wider disclosure – media, police

– Conditions: reasonable belief in truth of

information, not for gain, prior disclosure to

employer.

– Exceptionally serious cases


The Public Interest Test

• Will only be a qualifying disclosure if the C reasonably

believes that the disclosure is in the public interest;

• No definition of “public interest”.


Chesterton Global Limited v Nurmohamed

• Whistleblowing: the meaning of the public interest test.

• Appealed to COA, hearing expected in October 2016.

• Dealt with the meaning of the public interest test added

into the whistleblowing legislation by the Enterprise and

Regulatory Reform Act 2013, aimed at excluding

complaints about breaches of a worker’s own contract of

employment from whistleblower protection.


Chesterton Global Limited v Nurmohamed

• EAT held it is not necessary to show that a disclosure

was of interest to the public as a whole, as it is

inevitable that only a section of the public will be

directly affected.


Underwood v Wincanton plc

• Written complaint by Claimant and 3 other drivers that

overtime was not being distributed fairly, in breach of

contracts of employment.

• ET: Complaint was not “in the public interest” and

claim struck out.

• EAT: Upheld appeal and claim remitted to Tribunal for

consideration.


Reasonable belief in wrongdoing

• C does not need to prove facts/allegations are true.

• Sufficient if C subjectively believes that the relevant

failure has occurred or is likely to occur and ET

considers that belief is objectively reasonable.

• Babula v Waltham Forest College.

• Must be more than unsubstantiated rumour or opinion.


What about good faith?

• No longer a requirement.

• Can impact on remedy

- If it appears to the ET that the protected disclosure

was not made in good faith, it may, if it considers it

just and equitable to do so, reduce any award by no

more than 25%.


Confidentiality

• s43J renders contractual terms void insofar as they

purport to preclude the making of a protected

disclosure.

• Gagging clauses in settlement agreements

Trial Preparation &

Advocacy Seminar


Structure

• Introduction

• The ET1 and ET3

• Disclosure

• Statements

• Offers and Negotiation

• Hearing bundles


Statements of case

• Different people, different styles

• Use of headings


Statements of case

Purpose of pleadings

• to define with clarity the issues which are in

dispute

• to give each party fair and proper notice of the

case they have to face

• to inform the Tribunal as to the precise matters

which are in dispute

• to provide a summary of the case of each party.


Statements of case

Structure

• some introduction (the parties, definitions, the

nature of the claim)

• the substantive content (the facts in summary

form)

Remember basic rules:

Admit

Deny

Not admit


Statements of case

DO: Separate Particulars of Claim/Response

Keep it short and succinct – no more than 6 sides A4 for Claim and

4 sides for Response

Address each and every legal and factual issue

Use Sub-headings

Tell the story – don’t plead as you go.

Plead only salient fact, don’t draft a witness statement.


Statements of case

DON’T:

Type out claim or response on ET1/ET3 form (not user

friendly or easy to read)

Plead as you go

Let C’s ET1 dictate length or shape of your ET3 Particulars

Omit to address any issue, even if no clear instructions, as

better to “not admit”.

Draft a witness statement


Statements of case

What not to plead

• matters of evidence

• comments, submissions and lines of argument

• a reservation of a right to raise anything else later

• matters of law (?)


PLEADINGS – Further Particulars

Beware of overuse in discrimination claims –

usually leads to new allegations coming to

light.

Focus on key issues framed in the language

of the relevant statute/test.

In whistleblowing and victimisation allegations,

fundamental to pinpoint the protected act

relied on.



E.g. DO ask...

What is the provision, criterion or practice relied on that is

alleged to have caused substantial disadvantage

compared to a non-disabled person, triggering the duty to

implement reasonable adjustments?

What are the alleged specific procedural issues relied

upon in the allegation that dismissal was unfair?



• E.g DON’T ask...

Please set out all matters relied upon in respect of your

allegation of direct race discrimination, stating date, time,

and persons involved.



When responding to Further Particulars of

Claim, try to use the existing ET3 Response,

and amend using tracked changes – using

underlining and strike through.

Put the tracked changed document in as the

Amended Response.


Disclosure and file

management

• Making it easy for yourself.

• Every file (apart from the correspondence pin)

should have sections:-


Disclosure and file

management • Section 1 reserve for case summary, chronology

and brief to counsel etc

• Section 2 ET1, ET3, schedules of Loss and

counter-schedules, applications and orders, etc

• Section 3 statements, reports etc

• Section 4 your client’s documents


Disclosure and file

management • Section 5 anything from opponent that does not

get put in section 4

• Section 6 maybe offers?

• Section 7 rubbish, multiple copies etc ?

• Section 8 early drafts that have been

superseded?


Disclosure and file

management • Educating your client as to the duty of disclosure

• “Document “ includes tapes, e-mails, contents of

computer hard-drives etc

• Extent of the duty - Relevance

• The inclusion of documents (etc) which helps or

harms your own case or that of your opponent

• Consequences of inadequate disclosure


Statements

• Headings

• Own words and (unless stated) from own

knowledge

• Paragraphs apply to witness statements

• Apply test of relevance

• Include margin with references to page numbers

of trial bundle


Experts

• Recognise what is expert evidence, and do not let

a non-expert person give it!

• Try to agree expert appointments at the earliest

time possible

• If no agreement, seek an order in strict terms,


Hearing Bundles

• Bundles should be easy if you have done your file

management properly

• Try to get a case summary and chronology to

your opponent early with a date for a response

• As Respondent make sure that everything you

want is included…it may not be

• Beware the Claimant litigant in person


The Twelve Commandments

as to hearing bundles

1. The bundle should be as small as reasonably

possible and organised into logical sections. Care

should be taken to avoid any document appearing

more than once.




2. A case summary as a single document in a first

section in the bundle will help the employment judge

understand what it is all about, and will be

appreciated. Describe it as Respondent’s case

summary if it cannot be easily agreed




3. After the case summary should come a section

for the questionnaires ET1, ET3 orders etc




4. If a statement of case has been amended

/ re-amended, only put the latest document in the

bundle and ignore the earlier editions


5. Do not reproduce backsheets to pleadings as

they have no purpose in the bundle. If e.g. the ET1

has documents attached to it, consider removing

them so that they may put somewhere more logical,

and note on the index that the attachment has been

removed. (Remember rule one - you will not want

the document to appear twice)




6. Tribunal orders for directions should be included,

but it is not usually necessary for letters of

application to be included (they are usually of

historical interest only). An exception may be where

a statement is inconsistent with the pleaded case or

the statement upon which a party wishes to rely at

trial




7. The next section should be reserved for

documentary evidence in the form of the disclosed

documents. The standard Tribunal order is quite

proscriptive. Periodically, read the instructions and

make sure that you are following them!




8 Witness statements can be at the back of the

hearing bundle of (preferably) in a smaller separate

bundle. Consider whose statements should go first.

Do not include any exhibits to the statements. (If

there are any exhibits, record in the index that they

have been removed, and make sure they get into

the evidence section. Do not forget to remove any

backsheets and exhibit labels to the statements




9. If there are any documents which are hand

written, they should be transcribed. Try to agree the

transcripts and exclude the hand written copies

unless there is a feature of the hand written ones

that may be evidentially informative. If there is no

agreement, put the transcript immediately after the

hand written copy




10. You may want a section for correspondence

between solicitors (excluding w/o prejudice letters).

Do not simply put everything in! There must be a

test of materiality, and less, not more is to be

preferred. If the other side want anything that you

have not included, they can be asked to identify or

provide the copies for incorporation




11. When paginating, unless the bundle is really

enormous, it is better to run the numbering through

the whole of the bundle and not start from one at the

beginning of each section or file. Do not start

paginating until a bundle has been fully agreed.

You can then paginate that copy as a master copy

and use it for all subsequent copies.




12. Try to agree a bundle of w/o prejudice letters or

attendance notes recording privileged discussions.

That must be kept strictly separate from the trail

bundle, but it is useful to have it as a supplementary

bundle. If it is extensive, consider separate

pagination. If you want to make or respond to a

costs application, it will be invaluable.


The Thirteen Commandment

Make sure you let your witnesses see the bundle


WITNESS PREPARATION

Absolutely key to success and failure

Witness training is ok – coaching is not.

If not properly prepared, can lose a case

Explain the law, and why the witness needs to

give evidence.


WITNESS EVIDENCE-Common Failings

Nervousness/confidence

Inconsistency between witnesses

Lack of view of big picture

“Computer says no”

Not knowing relevant documents and policies

Lack of ownership of decision

Speculation and loose language

Lack of understanding as to legal tests (e.g. basics for

a fair dismissal, understanding discrimination law)


WITNESS EVIDENCE – How to avoid

the pitfalls

Good succinct statements – beware lengthy

statements give more exposure to XX

Good references to relevant documents.

Specifics rather than general assertions.

The witness meeting

Mitigate against inconsistency - e.g. Call only

1 person from the disciplinary panel.

Order of witnesses can be key


ADVOCACY-PREPARATION FOR

HEARING

Reverse engineer your prep –

FOCUS ON THE BIG PICTURE

Identify where you need to get to (i.e. what you need to do

to win)

Detailed chronology

Detailed list of issues

Draft closing submissions


PREPARATION FOR HEARING -

Chronology

• For own prep, extreme detail required (particularly

for large bundles)

• Should refer to virtually every document and

location.

• Crib sheet for the entire bundle.


PREPARATION FOR HEARING – List of

Issues

• Identify all legal issues (including sub-issues,

such as burden of proof, comparator)

• Identify all factual issues

• What does C rely on? What do we say in

response?”


PREPARATION FOR HEARING – Draft

Submissions

• “Roadmap to success”

• Don’t make it a factual narrative – make it persuasive.

• Make it easy for the Tribunal to find in your favour – draft it like a

judgment, so that your approach mirrors that of the tribunal.

• Address all issues.

• Remember no judge wants to be appealed – so give enough

substance to find in your favour.


ADVOCACY-AT THE HEARING

• Who is the EJ?

• Time estimates

• Liability and remedy?

• Written Submissions


AT THE HEARING

• Examination-in-chief

• Cross-examination

• ET’s questions

• Re-examination


TUPE


What does it cover?

• Business transfer

– ‘Economic Entity’

• Organised grouping of resources

• With the objective of pursuing economic-activity

(central or ancillary)

– Which ‘retains its identity’

TUPE – Business Transfers


• ‘Service provision change’

– Outsourcing/insourcing/contractor change

– Organised grouping of employees in GB with

principal purpose of carrying out activities on behalf

of client

– Activities must be fundamentally or essentially the

same before and after the service provision change

– Excluding:

• Short-term

• Sale of goods

TUPE – Service Provision Change


What transactions are not covered?

• Transfers of assets only

• Administrative reorganisation of public administrative

authorities

But:

Staff Transfers in the Public Sector

• Presumption that TUPE applies unless exceptional circumstances

What is not covered?


Identifying transfers

• Identifying transfers activity


What transfers?

• Contracts of employment

– Pensions

• Liabilities

• Effect of an employee objection

What transfers?


Transfer-related changes to terms and conditions

• Void if the sole or principal reason is the transfer

• Permitted if: – The sole or principal reason is an economic, technical or organisational

reason entailing changes in the workforce, provided the employer and

employee agree the variation;

– The terms of the contract permit such a variation;

– Terms are incorporated from a collective agreement, provided that the

variation takes effect more than one year after the date of the transfer

and the varied terms, when considered together, are no less favourable;

– The transferor is subject to relevant insolvency proceedings

Contractual Changes


Transfer-related changes to terms of employment

• ‘Economic, technical or organisational reason

entailing changes in the workforce’

– Harmonisation?

– Market forces?

– Shift changes?

– Different equipment?

Changing terms


Transfer-related dismissals

• Reason cannot be transfer itself

• ‘Economic, technical, organisational’ reason entailing

changes in the workforce

• The reason must still be fair

• There must still be a fair procedure

Dismissal


• Substantial changes in working conditions

– Not necessarily contractual

– Relocation

– Pay

– Hours

– Other terms

Constructive dismissal


Notification of employee liability information

• Identity of employees

• Ages

• Statement of terms

• Collective Agreements

• Disciplinary action in last two years

• Grievances in last two years

• Legal action (actual and potential)

Employee Liability Information


Notification of employee information

• Penalties

• £500 per employee

Employee Liability Information


• Employee representatives

– Recognised union

– Employee representatives appointed for another

purpose

– Elected employee representatives

– (if employees are invited to but do not elect

representatives) all employees

Information and Consultation


• Information to be provided

– Fact of transfer

– Proposed date

– Reasons

– Legal, economic and social implications

– Measures (or, if no measures, that fact)

– Information about agency workers



Consultation

• Where ‘measures’ are proposed by an employer in

relation to an affected employee, that employer must

consult with that employee’s representatives



Information and consultation

• Penalties

– 13 weeks’ pay per affected employee



Practical Issues

Transferor • Is there an existing contract in place?

• Assess workforce

– Organised grouping

– Assignment

• Collate information

– Employee liability information

– Additional obligations under existing contract – DPA implications

• Consider invitation to tender documentation and what employee

information needs to be included


Practical Issues

Transferor continued • Consider contractual documentation – what additional protections are

required?

• Employee representatives

– Unions

– Any additional representatives required?

• Request measures information from transferee

• TUPE information for the representatives

• Any need to consult?

– Managing employee relations

• Handover of employment documents on transfer


Practical Issues

Transferee • Assess likely workforce

• Consider employee liability information (or any additional information

available)

• Prepare measures letter

• Any need to consult own workforce?

• Consider contractual documentation

– Who is assuming employment risks?

• Consider practicalities of transfer

– Employment documents, payroll etc.


Practical Issues

Client on change of contractor • Consider existing contractual documentation – are there provisions

which will assist the transferee?

• Do you have any information about how the services are performed

which would assist?

– For example, which employees are carrying out the service, how it is

structured etc.

• Ensure position is protected in any invitation to tender

– Do not warrant the accuracy of information etc.

• Ensure position is protected in any contractual documentation

– Clients can still be named in employment proceedings, even if this is

a mistake on the part of the employee


Continuity of Employment


What is continuous employment?

• Length of unbroken time an employee has worked.

• In some circumstances, it can include work done for

a previous employer.

Why is continuous employment important?

• Key statutory rights

• Certain monetary awards

Continuity of Employment


Different Employers

• Associated employers

– One is a company of which the other (directly

or indirectly) has control; or

– Both are companies of which a third person

(directly or indirectly) has control.

• Transfer of Undertakings (Protection of

Employment) Regulations 2006

• Local Education Authorities


Calculating Continuity

• Which days count?

• Events which do not break continuity and which count

towards it

– Employee’s illness or injury

– A temporary cessation of work

– An arrangement/custom of continuing employment

– Maternity/Paternity/Adoption/Shared

Parental/Parental leave

– Holidays



• Events which do not break continuity but which do not count

towards it

– Service in the armed forces

– Strikes and lock-outs

– Working outside Great Britain (for the purposes of statutory

redundancy pay)

• Events which do break continuity

– Breaks of a complete week ending with a Saturday which do

not fall within the exceptions which do not break continuity

– Illegality



• For the purposes of unfair dismissal

– Effective Date of Termination (EDT) - the later of:

• The last day of employment; and

• The day on which appropriate minimum statutory notice would

have ended

• For the purposes of redundancy payments

– The “relevant date”:

• The EDT; or

• Where the employee seeks to terminate employment before the

employer’s notice would have ended, the date on which the

employee’s notice expires; or

• Where a trial is offered for alternative employment which is not

completed, the date the original contract ended


Re-employment after unfair dismissal

• Employment Protection (Continuity of Employment)

Regulations 1996

– Continuity is preserved where:

• The employee is dismissed

• They present a relevant complaint of dismissal

• In consequence of such relevant complaint, they

are reinstated or re-engaged by their employer

or by a successor or associated employer

– Order of tribunal, ACAS conciliation or

settlement agreement


Special Rules for Redundancies

• Re-employment after redundancy

– Contract renewed or employee re-engaged

under a new contract

– Offer (whether in writing or not) must have

been made before the end of employment

under the previous contract

– Renewal or re-engagement must take effect

within 4 weeks of termination



• Receipt of a statutory redundancy payment

– Will sever continuity but only for the purposes

of statutory redundancy pay

– Must have been a genuine obligation to make

statutory redundancy payment

– Hardly ever used



• Repayment of statutory redundancy payment

– Will maintain continuity if reinstated/re-

employed where:

• They were dismissed on terms requiring the

repayment of the redundancy payment

• The redundancy payment is actually repaid


Modification Order

• Redundancy Payments (Continuity of Employment In Local

Government etc.) (Modification) Order 1999

– Used for calculating statutory redundancy pay for local

government employees

– Continuous service calculated by reference to the whole of

their government service provided that there is not a

significant gap between any two employments

– Re-employment rules following redundancy extends to re-

employment by another local government body

• Repayment provisions?


Test Your Knowledge

• Continuity of Employment Quiz


David Potter

Partner

Freeths

T: 0845 274 6819

david.potter@freeths

.co.uk

Kim Howell

Partner

Geldards

T: 02920 391473

kim.howell@geldards.

com


Check out the website …


EM Lawshare

Conference 2016

Friday 14th October

2016

Holywell Park,

Loughborough

Book now:

www.geldards.com/e

mls

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