Employment 9 - Lecture notes 9 PDF

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EMPLOYMENT LAW AND PRACTICE Unit 9 Guide Varying Terms and Conditions and Negotiating Settlements

Context In this unit, we consider the issues which arise when attempting to vary employees’ terms and conditions of employment. We also conclude the Hilary Baker Case Study by negotiating a settlement. With regard to varying terms and conditions, employment lawyers can be involved in a range of activities: •

Advising employers on the implications of their plans and the claims which can arise including claims of breach of contract, unfair dismissal, wrongful dismissal, redundancy payment, discrimination and claims under TUPE 2006;

•

Advising employers on the practical steps they should take when attempting to implement contract variations;

•

Assisting employers or employees in negotiating the implementation of contract variations;

•

Advising employees of their rights; and

•

Assisting employers or employees in the conduct of claims before an employment tribunal.

Outcomes By the end of this unit you should be able to: 1.

Advise an employer on the implications of varying employees’ contracts of employment and devise a strategy for dealing with variations.

2.

Assess the strengths and weaknesses of a client’s case in preparation for negotiation of a settlement.

3.

Conduct a negotiation on behalf of a client and advise as to the most appropriate method of recording a settlement.

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Legal Practice Course

Unit Workshop Tasks In this unit workshop you will: 1.

Review your answer to the Preparatory Task.

2.

Advise your employer client on the steps to be taken to implement a variation of employees’ contracts of employment.

3.

Represent a party in the Hilary Baker Case Study and prepare for and attempt to negotiate a settlement of the claim. You will present a report to the class regarding the outcome of the negotiation. If a settlement has been achieved, you will decide upon the most appropriate method of recording the settlement.

Preparation To prepare for this unit workshop you should: 1.

Read Chapter 6.5 Employment Law (Scott and Phillips)

2.

Remind yourself of the law regarding contracts of employment and of the claims which can arise on termination.

3.

Complete Employment Law Test and Feedback – unit workshop 9 (Preparation).

4.

Obtain from the ACAS website a copy of the ACAS Advice Leaflet: Varying a contract of employment; and a copy of the ACAS Code of Practice 4: Settlement Agreements dated July 2013.

5.

Complete Preparatory Tasks 1 and 2.

6.

Read Skills for Lawyers Chapter 12: Negotiation and Alternative Dispute Resolution.

7.

Review your notes from Lecture 4.

8.

If you have not already done so watch the recording of lecture 4.

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Materials required for the Unit Workshop 1.

Your answer to the attached Preparatory Tasks.

2.

ACAS Advice Leaflet – Varying a contract of employment; and Code of Practice 4: Settlement Agreements.

3.

Your file relating to Hilary Baker.

4.

Employment Law (Phillips and Scott).

5.

Skills for Lawyers.

Consolidation after the Unit Workshop It is important that you consolidate your learning, but in addition to general consolidation, you must complete the Employment Law Test and Feedback – unit workshop 9 (Consolidation). You should also watch the recording of lecture 6 if you have not already done so.

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PREPARATORY TASK 1 Variation of Terms and Conditions Your supervising solicitor, Shaheen Khan, has been contacted by Robert Graham, the Chief Executive of the Weyford Further Education College. The College wants to make some changes to some of its employees’ terms and conditions and Robert is coming to see Shaheen later this week to discuss the matter. All Shaheen knows at the moment is that it is something to do with changing their hours of work. Shaheen has asked you to prepare a note for the file setting out: 

the possible claims which could arise out of the proposed variation, and 1. breach of contract 2. unfair dismissal



the procedure the employer should follow in order to implement the change.

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PREPARATORY TASK 2 Negotiating Settlements – Claimant’s and Respondent’s Instructions Hilary Baker v Deanes Kitchens Ltd (Deanes) Deanes and PCL both accept that there was a relevant TUPE transfer. PCL have been added as a respondent to the claimant’s discrimination claim. They were then served with the ET1, and have filed an ET3 stating they have no knowledge of her claim and are not liable Document A. The Tribunal has refused Mrs Baker’s request for permission to amend her claim to add the claims arising on dismissal (Unit 8) on the basis that the claims were not in any way connected to the direct discrimination claim issued. Deanes have now paid Hilary a full redundancy payment. Hilary has now been offered another job on a better salary than she had at Deanes. As a consequence, she has decided against issuing a further claim for unfair dismissal. The only claim to be determined is therefore her direct discrimination claim. The parties have exchanged witness statements, there was no statement from PCL as they are relying on the argument that Deanes are liable for the claimant’s claim. You can assume that Hilary’s statement sets out the details provided in WS 5. Mark Phillips’ witness statement for Deanes is attached as Document B. The parties are considering the possibility of negotiating a settlement. Before unit workshop 9 you must prepare for the negotiation. At this stage you do not know which of the parties you will be representing so you must prepare the case for all sides, (Hilary or Deanes/PCL). Use your reading for this unit workshop, the case study documents you have received in unit workshops 5, 6, 7 and 8, together with Document A to help you prepare. In the unit workshop your tutor will tell you which of the parties you are representing. You will negotiate with a representative of the other side with a view to reaching a settlement. After the negotiation you will report back to the class on:  

the outcome of the negotiation, and the method chosen to record the settlement.

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DOCUMENT A Baker v

6

(1) Deanes Kitchens Ltd (2) Pauls Ceramics Limited

Response

6.1 Do you defend the claim?

Yes

X

No

If ‘No’, please now go to section 7. If ‘Yes’, please set out the facts which you rely on to defend the claim. (See Guidance-If needed, please use the blank sheet at the end of the form.) 1.

This ET3 is presented on behalf of Pauls Ceramics Limited (PCL), the Second Respondent in this claim.

2.

PCL at no time employed the Claimant, and had no direct contact with the Claimant.

3.

PCL purchased the bathrooms part of the First Respondent’s business in late August 2020. The purchase was a relevant transfer for the purposes of the Transfer of Undertakings (Protection of Employment) regulations (TUPE).

4.

The Claimant was not employed by the First Respondent at the date of the purchase. The Claimant’s employment did not transfer to PCL.

5.

PCL does not admit that liability for the Claimant’s discrimination claim has transferred to them, by operation of TUPE or otherwise.

6.

If it is found that PCL have acquired liability for the Claimant’s claims, PCL reserves the right to submit a further response to the claim at that time.

7.

Save as is set out above, no part of the Claimant’s claim is admitted.

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DOCUMENT B IN THE EMPLOYMENT TRIBUNAL Case No. ET/40012/18. B E T W E E N :Hilary Baker

CLAIMANT

- AND – Deanes Kitchens Ltd RESPONDENT __________________________________________ WITNESS STATEMENT ON BEHALF OF RESPONDENT __________________________________________ I, Mark Haydn Phillips, Managing Director of Deanes Kitchens Ltd. of 59 Castle View, Chester CH6 5TR will say as follows: 1.

I am the Respondent’s Managing Director and I make this witness statement on the Respondent’s behalf.

2.

The Respondent is a family company. It was established by my father-in-law, Henry Jones in 1987. There are four Directors namely me, my wife Sheila Phillips, my father-in-law Len Grimes and Henry Jones. We are also the only shareholders of the company.

3.

The Respondent employs 60 people and specialises in the design, supply and installation of luxury kitchens. At the time of the Claimant’s employment we also had a bathroom design and installation business, in which the Claimant worked. This was sold in late August 20XX. I am the only Director involved in the day to day running of the company.

4.

Prior to the sale of the bathroom business, the Respondent operated the kitchens and bathrooms sides of the business as distinct operations. Staff generally worked in one or the other, but not both. The Claimant worked as part of the finance team in the bathrooms side of the business. The finance team was headed by the Finance Manager. There was also an Assistant Finance Manager, who was the Claimant, and eight finance assistants. The Claimant was in charge of the four finance assistants that dealt with the bathroom business.

5.

The Claimant was initially recruited by the Finance Manager, Stuart Hollis, in September 2013 as an administrative assistant. She was then promoted twice, most recently, to her final post of Assistant Finance Manager, in May 2020. The Claimant’s duties involved supervision of four finance assistants who dealt with the bathrooms business. The Claimant was also responsible for dealing with customer queries and for the day to day accounts related to the bathrooms business.

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6.

Initially, I knew little of the Claimant’s work. Mr Hollis ran the finance team and was responsible for conducting staff appraisals and so on within his team. However, since January 2020, Mr Hollis has been absent from work on several occasions due to ill health. On two occasions the Claimant deputised for him, the first in June 2020 for a period of two days and the second in November 2020 for three days. On both those occasions the Claimant’s work appeared satisfactory but the Claimant seemed to need a lot of reassurance and gave the impression that she was reluctant to take the initiative and deal with tasks independently.

7.

The post of Finance Manager is an important one. It involves reporting to the Board of Directors, dealing with the Respondent’s auditors and contributing to the Respondent’s financial planning. Mr Hollis’ absences increased in late 2020 and I decided to deal with his work myself when he was away as I was not sure that the Claimant had the confidence, experience or current knowledge of our kitchens business that was necessary.

8.

In December 2020 Mr Hollis informed me that he wanted to retire. I discussed the situation with Betty Gardener who is the Respondent’s Human Resources Manager and we decided to see if we could recruit internally. We thought it would involve considerable expense and time to advertise externally so, in January 2021, we sent an e-mail to all staff notifying them of the position.

9.

Two applications were received, one from the Claimant and one from Mr Gerry Oldfield. Both applicants were invited for interview.

10. On 23 February 2021 the applicants were interviewed by me and Mrs Gardener. We interviewed Mr Oldfield first. I was very impressed by his experience. He has previous experience of working in the finance department of a large company. Mr Oldfield has worked for the Respondent since July 2020. At the time of the interview, he was employed in the marketing team as manager. He performed very well at the interview and appeared to be a very able candidate. I thought he would make an excellent Finance Manager but I agreed with Mrs Gardener that we should fairly interview the Claimant before making a decision. 11.

When the Claimant entered the interview room she seemed very nervous. I was anxious to put her at ease and so I began by making small talk about her children. I know she is very proud of them because there are pictures all over her office. I asked the Claimant how they were getting on and where her son went to school. My intention was to try to help her relax but the Claimant’s manner became very frosty and she seemed to be reluctant to discuss her family.

12. I therefore moved on with the interview. I wanted to discuss the Claimant’s recent performance at work so I asked her to evaluate her performance over the past 12 months. She said she had performed very well. I mentioned that there had been a few times since September or October 2020 when she had not been at work in the late afternoon. I asked her to explain her absences. She seemed reluctant to give any explanation but looked very angry. I was concerned about the Claimant’s commitment to the job and I asked her to explain how she would meet the challenges of the post of Finance Manager. © The University of Law Limited

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The same question had been put to Mr Oldfield but when the Claimant was asked, she seemed to lose her temper and told me very forcibly that her family circumstances did not and would not interfere with her work. I was a little taken aback as I had not linked her family circumstances to my questions. 13. Mrs Gardener then took over the questioning of the Claimant. She asked the Claimant to explain her current responsibilities as Assistant Finance Manager and what skills she could bring to the post of Finance Manager. At this stage, the Claimant seemed to calm down and gave a full account of her current role and her abilities, qualifications and experience. 14. After the Claimant had left the interview, I informed Mrs Gardener that my preferred choice was Mr Oldfield. He seemed much better suited to the post. I confirmed that we would make the appointment immediately. 15. I arranged for a memo to be sent to the Claimant. I thanked her for her interest in the post and advised her that she had been unsuccessful. On 26 February 2021 an e-mail was sent to all staff notifying them of Mr Oldfield’s appointment. 16. I did not see the Claimant at work for a week or so. When I did see her, she seemed a little distant but she did not mention the post of Finance Manager. However, a few weeks later, I received a letter from the Claimant (dated the 31 March) advising me that she had sought legal advice and wished to instigate the grievance procedure. 17. I arranged a meeting between Henry Jones, one of our directors and the Claimant on 9 April 2021. I thought it was better that I did not deal with the grievance myself so that the Claimant would be reassured that her concerns were being taken seriously. I told her that she could bring a friend or representative with her but I understand from Henry Jones that she attended the meeting alone. Henry Jones told me that the Claimant had accused me of discriminating against her because she was a woman. I am told by Henry that the Claimant said that I saw her as a “little housewife who should be chained to the kitchen sink”. Apparently, she became rather hysterical and shouted that she had worked hard for her qualifications and that she was not going to be downtrodden “by the likes of him”, which Henry took to be a reference to me. Henry tells me that he explained why Mr Oldfield got the job and told the Claimant that he could see no reason to interfere with the appointment that had been made. After the meeting, Henry wrote to the Claimant, by letter of 9 April 2021, confirming his decision that her grievance was not upheld. The letter offered the opportunity to appeal the decision but no appeal was received by the Respondent. 18. I deny that the Respondent discriminated against the Claimant as alleged or at all. She simply was not the best person for the job. Signed: ……Mark Hayden Phillips…… Dated: ………………15 May 2021……

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UNIT WORKSHOP TASK 1 Variation of Terms and Conditions The meeting between Robert Graham and Shaheen Khan has now taken place. The Weyford Further Education College has been operating at a loss for some considerable time. A few months ago the College appointed management consultants to advise them on the best way forward. The consultant’s report highlighted two problem areas: First, the College needs to reduce its expenditure, in particular the expenditure on teaching staff. At the present time the College employs 230 teaching staff but, to cover all the classes, it also uses the services of 100 visiting tutors who work on a self-employed basis. Second, the College needs to expand its adult education provision, which is extremely lucrative. The College already runs a number of evening classes as part of its adult education provision; these classes have usually been staffed by the visiting tutors although one or two employed tutors are also involved. To enable the College to expand its adult education service without taking on more visiting tutors, the consultants have advised the introduction of a shift system. This will enable these courses to be staffed by employed tutors. At the present time the employed tutors’ contracts specify the working hours as 37.5 hours per week, between the hours of 9.00 and 17.30. The proposal is for the tutors to go on to a rota so that for one week in every four their hours will be 11.30 – 20.00. Their weekly hours will remain at 37.5 hours. It is very important for the future of the College that these changes go through and Robert Graham would like them to be implemented as quickly but as smoothly as possible. So far Robert Graham has had one meeting with the teaching staff. He got the impression that the majority are willing to accept the changes but two groups of employees raised complaints after the meeting. The two groups are: GROUP 1 - A group of five women tutors who are complaining that the introduction of the shift pattern will seriously affect their family commitments. They all have children of primary school age and whilst at the moment they can get after-school care for the children until 6 pm, they will not be able to arrange care up to 8.30 pm during the weeks when they are on the late shift. GROUP 2 - A group of ten tutors who say they will refuse to sign the new contracts for no other reason than they purely do not wish to change their current working hours.

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PART 1 Advise Robert Graham as to: 

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