IBB Solicitors' employment lawyers, based in West London, delivered a seminar to HR executives. The seminar covered: Negotiating an exit- the situation prior to July 29 2013 Pre-termination negotiations after 29 July 2013 “Any offer made or discussions held before the termination of the employment in question, with a view to it being terminated on terms agreed” • Cannot be used as evidence in ordinary unfair dismissal cases • Unless improper behaviour • Non-monetary offers • Even if no eventual settlement • Still have WP principles (Portnykh -v- Nomura) Limitations • Only ordinary unfair dismissal cases • Not automatic unfair dismissal, not discrimination, not breach of contract • Increase in multiple claims • Everyone has a protected characteristic • Risk assess Acas code of practice and guidance • Guidance broad and general • Useful examples, but not all the answers • Need case law, although doesn’t always help • Trying to formalise an informal process Some issues • Chronology – letter, meeting, agreement? • Should allow employee to be accompanied • Militates to letter first • Allow time to consider offer (10 calendar days to consider proposed formal written terms of a settlement agreement) • Template letters – useful, current caution around amending • Create precedent letter Improper behaviour • Harrassment, bullying, intimidation, offensive words, aggressive behaviour, physical assault (or threat), criminal behaviour, victimisation, discrimination • Undue pressure, e.g. not giving reasonable time for consideration of proposed written terms. 10 calendar days recommended (unless agreed otherwise) • Stating (before disciplinary process) that employee will be dismissed if offer rejected (as opposed to stating that disciplinary process will commence) Unfair dismissal compensatory award • Basic award - £464 • Compensatory award – lesser of £76,574 or 52 weeks’ actual gross pay • Law firm challenge – judicial review - R (on the application of Compromise Agreements Ltd) v Secretary of State for Business, Innovation and Skills Case law update: calculation of holiday pay- commission • EU Law- at Least four weeks' paid Leave" • Working Time Regs- a week's pay' • WiLliams and others v 8ritish Airways Plc [2011] - normaL remuneration" includes any payment intrinsically Linked" to the performance of tasks • Lock v British Gas Trading Limited [2012] - AG opinion: commission was intrinsically Linked to his role as a salesman - Suggested that is averaged over the Last twelve months Early conciliation Mandatory for claims presented after 6 May 2014

1. Employment law
breakfast seminar
Thursday 5 June 2014
Justin Govier, Partner
Jonathan Bruck, Senior Solicitor
Erica Humphrey, Solicitor

2. Negotiating an exit
Justin Govier
Partner

3. Negotiating an exit prior
to 29 July 2013
• Where to start? (Before 2 years !)
• Without prejudice rules - genuine attempt to settle a dispute
and no “unambiguous impropriety”
• Often needed earlier than that, exploratory conversations
• Artificial scripted conversations, manufacturing of
disputes and wrong labelling of WP
• “Cloak and dagger”

4. Pre-termination negotiations
after 29 July 2013
• “Any offer made or discussions held before the termination
of the employment in question, with a view to it being
terminated on terms agreed”
• Cannot be used as evidence in ordinary unfair dismissal cases
• Unless improper behaviour
• Non-monetary offers
• Even if no eventual settlement
• Still have WP principles (Portnykh -v- Nomura)

5. Limitations
• Only ordinary unfair dismissal cases
• Not automatic unfair dismissal, not discrimination, not breach
of contract
• Increase in multiple claims
• Everyone has a protected characteristic
• Risk assess

6. Acas code of practice and guidance
• Guidance broad and general
• Useful examples, but not all the answers
• Need case law, although doesn’t always help
• Trying to formalise an informal process

7. Some issues
• Chronology – letter, meeting, agreement?
• Should allow employee to be accompanied
• Militates to letter first
• Allow time to consider offer (10 calendar days to consider
proposed formal written terms of a settlement agreement)
• Template letters – useful, current caution around amending
• Create precedent letter

8. Improper behaviour
• Harrassment, bullying, intimidation, offensive words,
aggressive behaviour, physical assault (or threat), criminal
behaviour, victimisation, discrimination
• Undue pressure, e.g. not giving reasonable time for
consideration of proposed written terms. 10 calendar days
recommended (unless agreed otherwise)
• Stating (before disciplinary process) that employee will
be dismissed if offer rejected (as opposed to stating that
disciplinary process will commence)

9. Not improper behaviour
• Stating that the terms of a procedural termination will be less
favourable
• Not agreeing to provide a reference
• Not paying for independent advice
• Encouraging employee, in a non-threatening way, to
re-consider rejection of offer
• Often it’s not what you say, but how you say it
• More pitfalls for SMEs

10. Has it been a success so far?
• Legally – more clarity
• Practically:
- It is a process, less “cloak and dagger”, statutory seal of
approval, nothing wrong with it
- transparent, frank communication
- Reduction in two-pronged approach
- Internal procedures
- Benefits outweigh problems
- Employees use as well

11. Getting the package right
• Knowing your employee
• Part HR professional / part psychologist
• Non-financial issues
• Tactics (room to move)
• Non-financial deal breakers?

12. Factors
• Management time going through process
• Certainty
• Immediacy
• Confidentiality
• Non-derogatory clause
• Announcement (customers, suppliers, employees)
• Restrictive covenants
• Legal fees
• Avoiding test case for others
• Public dispute
• Recruiting replacement (e.g. “redundancy”)

13. Factors
• Lump sum (accelerated receipt)
• Dismissal in any event
• Contributory conduct
• Loss of earnings
• One year cap
• Job market
• Reference
• Tribunal fees
• Punitive
• Advice – legal and non-legal
• Employee expectations (as opposed to realities)
• Merits of the case

14. Employment law update
Erica Humphrey
Solicitor

15. Employment tribunal statistics 2012/13
• Fees introduced for claims filed on or after 29 July 2013
• Up to £1,200 (£250 filing and £950 hearing)
• 79% fewer claims received:
- Oct-Dec 2012 – 45,710 claims received
- Oct-Dec 2013 - 9,801 claims received
• 75% fewer than in the last quarter
• Unison challenge – judicial review
- (R (Unison) v Lord Chancellor and another [2014] EWHC
218 (Admin)

16. Unfair dismissal compensatory award
• Basic award - £464
• Compensatory award – lesser of £76,574 or 52 weeks’ actual
gross pay
• Law firm challenge – judicial review
- R (on the application of Compromise Agreements Ltd) v
Secretary of State for Business, Innovation and Skills

17. Case law update:
calculation of holiday pay - commission
• EU law – “at least four weeks’ paid leave”
• Working Time Regs - a ‘week’s pay’
• Williams and others v British Airways Plc [2011] – “normal
remuneration” includes any payment “intrinsically linked”
to the performance of tasks
• Lock v British Gas Trading Limited [2012]
- AG opinion: commission was intrinsically linked to his role
as a salesman
- Suggested that is averaged over the last twelve months

18. Case law update:
calculation of holiday pay - overtime
• Neal v Freightliner Ltd [2012] – EAT
• Faulton and another v Bear Scotland Ltd [2012] – EAT
• Watch this space…

19. Case law update:
collective redundancy
• The Woolworths case (USDAW v Ethel Austin Ltd (in
administration) and another case UKEAT/0547/12)
• Collective consultation when:
- Proposing to make redundant 20 or more employees
- “at one establishment”
- Within a period of 90 days or less
- 100+ employees = 45 days’ consultation
- Fewer than 100 employees = 30 days’ consultation
• EAT: the words “at one establishment” should be disregarded
• Referred to the ECJ

20. Case law update:
disciplinary and grievance
• Blackburn v Aldi Stores Ltd (2013) (EAT)
- Failure to provide impartial grievance could amount to a
fundamental breach of contract
• Miller v William Hill Organisation Ltd (2013) (EAT)
- Reasonable belief in the employee’s guilt
- Where an employee dismissed for criminal or serious
misconduct, level of investigation must be “careful and
conscientious”
- Should focus no less on any potential evidence that may…
at least point towards innocence…as he should on the
evidence directed towards proving the charges against
him

21. Case law update:
disciplinary and grievance
• Stuart v London City Airport (2013) (CA)
- Employee fairly dismissed for theft even though acquitted
in a criminal trial
• Brito Babapulle v Ealing NHS Hospital (2013) (EAT)
- A finding of gross misconduct will not inevitably make
dismissal a reasonable response

22. Early conciliation
Jonathan Bruck
Senior Solicitor

23. Early conciliation
• Mandatory for claims presented after
6 May 2014

24. The issues
• Claimant (C) must notify Acas of intention to make a claim
• “stop the clock” on limitation
• Up to one calendar month (extension for further 14 days by
agreement)
• Claims for relevant proceedings cannot be presented before
early conciliation complete and early conciliation certificate

25. Acas notification
• Early conciliation notification form
• Names, addresses and contact details
• Group claim form
• More than one Respondent (R) – different time limits!
• On-line, phone, post
• Acas records receipt (Day A)
• Email receipt / date stamped

26. Upon notification
• Early Conciliation Support Officer attempts to contact C within
24 hours
• Obtains details (using checklist)
• Allocates conciliator

27. Options for claimant
• Demand Certificate from ECSO (who will presumably try to
persuade otherwise?)
• If certificate issued, clock restarts
• Agree that Acas can contact R (Acas database for large
employers)

28. Options for Respondent
• Contact usually within 48 hours
• Refuse involvement
• Discuss settlement with conciliator

29. Certificate
• Issued at any time that conciliator concludes settlement is not
possible (or 2 weeks if ECSO cannot contact C)
• Same conciliator if claim issued - helpful

30. Expectations
• Acas will not advise on timing
• Acas obliged to accept, even if out of time
• Certificate is not a validation of claim

31. Early conciliation
Effect on time limits
• Day A = day Acas receives EC form/phone-call from C
• Day B = day C is deemed to receive EC certificate (or actual receipt date if
earlier)
• Deemed receipt:
- date certificate emailed by Acas
- 2 working days after Acas posts certificate (assuming 1st class used)
• Time limit for claiming extended to 1 month after Day B if time would
otherwise expire between Day A and Day B + 1 month

32. Early conciliation
Example
• C dismissed with effect from 8 May 2014 & wants to claim UD
• Normal time limit would expire 7 August 2014
• C emails EC form to Acas on 5 June 2014 (Day A)
• Acas makes contact with C on 9 June 2014. C agrees to Acas contacting
R but R is not willing to agree a settlement
• Acas issues EC certificate and emails it to C on 13 June 2014 (Day B)
• When does the UD time limit expire?
- ERA 1996: ‘In working out when a time limit set by a relevant
provision expires, the period beginning with the day after Day A
and ending with Day B is not to be counted’
- therefore the 8 days between (and including) 6 June 2014 and 13 June
2014 do not count
- time limit extended by 8 days to 15 August 2014

33. Early conciliation
Another example
• C dismissed with effect from 8 May 2014; wants to claim UD
• Normal time limit would expire 7 August 2014
• C emails EC form to Acas on 5 August 2014 (Day A)
• Acas makes contact with C on 8 August 2014
• C agrees to Acas contacting R
• Acas makes contact with R on 12 August 2014
• R is not willing to agree a settlement
• Acas issues EC certificate and emails it to C on 13 August 2014
(Day B)
• Time limit for UD claim expires 13 September 2014 (one month
after Day B)

34. Settlement
• If COT3 to settle all claims then no certificate
• If COT3 to settle some claims then certificate for rest
• New ET1

35. Issues for Respondents
• Checklist
• Jurisdiction
• Exemptions
• Timing
• Name of Respondent

36. Relevant proceedings
• Most claims
• Can go through EC but then add new claims
• C has mix (e.g. unfair dismissal and right to be accompanied),
therefore exempt, goes through EC anyway and seeks to rely on
clock stop?

37. Other Exceptions
• Joint claims, someone else complied
• If R contacted Acas first (no clock stopping unless C presents
form)
• Mixed proceedings
• Unfair Dismissal Interim Relief

38. Conclusion
• Timing issues might present headaches for C and litigation
• Will C’s try it on anyway?
• Will Rs conciliate in fees regime?
• Individual cases will depend on the parties and conciliator
• Concern over Acas resources (new conciliators appointed)
• 10 days delay already experienced
• Longer period of uncertainty for Rs
• R may still not receive advance notice of claims