Littleton Chambers Seminar for In-House Lawyers Tim Tarring – Clerking for in-house lawyers Martin Palmer – TUPE John Mehrzad – Concurrent disciplinary.

Littleton Chambers Seminar for In-House Lawyers

Tim Tarring – Clerking for in-house lawyers

Martin Palmer – TUPEJohn Mehrzad – Concurrent disciplinary / grievancesDamian Brown – Changing terms and ConditionsChris Quinn – Rushing to CourtDavid Reade QC – Taking the sting out of Discrimination claims

Nigel McEwen – Concluding remarks

10 things about TUPE

every In-house Counsel should know

MARTIN PALMER

mpalmer@littletonchambers.co.uk

16th May 2011

10 things every In-House Counsel should know about TUPE

Practical aspects of a transfer for In House Counsel

• Issues to be managedThe key is in the planningDue diligence

• What is needed and what cannot be avoided

Conditions precedentWarranties IndemnitiesValidity of contracting out clauses

Planning – what constitutes the relevant transfer and who’s affected?

• ‘Standard’ transfer or Service Provision Change

• Informing and consulting employee representatives for all affected employees

• What measures do you need to inform reps about?

• When does the relevant transfer occur?

Service Provision Changes – in all of its forms

• Three types of SPC

• Professional business services included

• Retention of identity not included?

What’s left to go wrong and how to persuade the business of the need to guard against it

• Election of employee representatives – remind them more than once and even more often of the importance of voting?

• Ascertain what liabilities are at issue – and don’t forget the hidden cost of redundancies

• Determine who’s assigned to the undertaking

• Inherited employment liabilities and costs of failing to inform/consult

Concurrent disciplinary/grievances

JOHN MEHRZAD

jmehrzad@littletonchambers.co.uk

16th May 2011

Concurrent disciplinary/grievances

Aims

• Bust myth that concurrent disciplinary/grievances are a nightmare.

• Run through general guidance.• Give solutions to common scenarios.• When to throw the book at stroppy employee.• Conclude with summary of key points.

ACAS Guidance

• “Where an employee raises a grievance during a disciplinary process the disciplinary process may be temporarily suspended in order to deal with the grievance. Where the grievance and disciplinary cases are related it may be appropriate to deal with both issues concurrently.”

Overlapping grievance and disciplinary cases (para. 44, ACAS Code of Practice 2009)

When deal concurrently?

• ACAS Code suggests can deal concurrently where the grievance and disciplinary “are related”.

• Examples:– Grievance about disciplinary process, e.g. suspension,

investigation, insufficient notice of hearing.– Grievance about person alleging misconduct/poor

performance.– Grievance about alleged facts, e.g. inequality of

treatment, predetermination, lack of support.• Most grievances can be considered concurrently with

disciplinary.

Complaints about disciplinary/grievance officers?

• Such complaints “are related” but should they be heard by the person subject to the complaint?– Best advice is to find a new, independent manager to

take over the role.

• What about small firms without other managers?– “The appeal should be dealt with impartially and

wherever possible by a manager who has not previously been involved in the case”

(paras. 26 and 41, ACAS Code of Practice 2009)

Stroppy employee

• Familiar scenario:– Employee invited to disciplinary hearing.– Raises grievance alleging discriminatory treatment by

all team over long period of time – never mentioned before.

– Asks on WP basis for pay-off and threatens ET proceedings.

– Continues to raise further grievances.– Team stressed and strain placed on financial/

personnel resources.– What to do?

HM Prison Service and ors v Ibimidun [2008] IRLR 940 (EAT)

• Dismissal of employee for bringing numerous complaints of race discrimination against employer and named managers did not amount to victimisation.

• The reason for dismissal was not protected acts but complaints made to harass employer and other employees.

• Dismissal for fair reason – conduct/breakdown of trust and confidence.

• Dismissal fair – investigation concluded conduct designed to harass/force into settlement.

Summary of key points

1. In most cases it will be appropriate to deal with grievance/disciplinary complaints concurrently.

2. The issue is whether “they are related”.

3. Where resources do not permit separate grievance and disciplinary officers, may be the same person.

4. Can discipline employee for numerous complaints designed to harass.

5. Consider amending policies to provide for express provision that grievances made in bad faith may result in disciplinary action – already typical for some organisations.

Ch Ch Ch Changes

Damian Brown

dbrown@littletonchambers.co.uk

02077978600

Changing Terms and Conditions

Hunky Dory – why change?

Clearly not:

Widespread changes resulting from economic downturn- Collective agreements- Pensions- Hours- Salary

Absolute Beginners – the basics

Contractual Sources- Collective Agreements – particularly difficult for the

unwary- -apt for incorporation

- Alexander v. Standard Telephone Co [1991] IRLR 286- Kaur v. MG Rover Group [2005] IRLR 369

- Zombies?- Framptons v. Badger

- TUPE

Absolute Beginners 2

- Express terms – unilateral variation clauses - Malone v. BA [2011] IRLR 32- Bateman v. Asda Stores [2010] IRLR 370

Ashes to Ashes – it gets messy.

- Constructive dismissal- Work on under protest and claim ud

- Hogg v. Dover College [1981] IRLR 477

- Collective dismissal

- S.188- St John of God (Care Services) v. Brooks [1992] IRLR

546

- Depth charges?- Scully v. Southern Health and Social Services Board

[1992] 1 AC 294

Rushing to Court

Chris Quinn

May 2011

Rushing to Court

The possibilities

• The RCJ switchboard and the judicial mobile phone (020 7947 6000)

• Choice of division: Chancery- patents and registered designs, bankruptcy, sale of real property, copyright and passing off

• 2 hours in Chancery• Without Notice applications. PD 23 para 3: exceptional

urgency and where the overriding objective is best furthered by doing so

The way to do it

• Work on a proof of evidence• Contact a clerk• Instruct a barrister. Use the website.• Make the choice:

– No notice at all;– Informal notice– Three clear working days’ notice

• QBD Listing Office for Interim Applications Judge (Room WG08; tel 020 7947 6826)• Chancery Division: Clerk to the Chancery Interim Applications Judge or Listing Office

(Room TM 505; tel 020 7947 6754)• Lodging documents at least 2 hours before if possible

Preparation

• Witness statement/ exhibit: affidavit for freezing or search orders• Cross-undertaking as to damages/ proof of ability to pay• If W/N the duty of full and frank disclosure: setting out what the other side may say as to

fact. In the witness statement not stuck in the exhibits: National Bank of Sharjah v Dellborg

• Same duty as to the law: Skeleton Arguments• Application Notice (x2- don’t forget the Return Date)• Draft Order (2 copies) (showing marked up changes from suggested versions).

Responsibility of the advocate to prepare personally: Sidhu• Claim Form (2 copies)• Particulars of Claim? [advantages/ disadvantages]. The 14 day rule• At the hearing: duty to provide a full note to the other side: Interoute

Telecommunications UK Ltd• Suggested division of responsibilities between you and Counsel• In urgent cases, filing of the same afterwards

What you need to justify a without notice application

• A basic principle of justice;• Bean J’s view as to utter inappropriateness in employee

competition cases;• Exceptional urgency;• Defeating the purpose of the injunction e.g. real risk of

destruction of evidence or real risk of dissipation of assets;

• Promptness as an often forgotten free-standing requirement: Bates v Lord Hailsham

The pitfalls

• The most frequent mistake in injunction litigation;• Falling flat on your face;• Satellite litigation regarding your duty of full and frank

disclosure: Memory Corp plc v Sidhu;• Duty extends to both facts and law;• A second hearing- doing it all again at the return date;• Prohibition in industrial disputes: section 221(1) of

TULRCA 1992.

Some sensible tips

• Informal notice;• Speedy trials: the normal expectation as to restrictive

covenants and undertakings: Lawrence David v Ashton;• Knowing when the party is over: getting out of the

litigation at the right time;• Part 36 Offers to settle.

Discrimination: taking the sting out of claims

DAVID READE Q.C.

14th May 2011

Taking the sting out of

Discrimination claims

Key Areas

• Equality Act 2010•Equal Treatment

•Disability•Unequal Treatment

•Age Discrimination on retirement issues•Retirement Age

•Equal Pay•The Toon comes to Town

• Equality Policy

Handling Claims: The skirmish

• The Questionnaire–Adverse inference and the shifting burden of proof

• Early Advice• Ground work• Claimant contingency lawyers

• No Umpire• The oppressive and disproportionate

•specific disclosure • Response time less critical than completeness

Handling Claims: Deployment

• ET1s, Haiku or Prolix

• Requests for information and particulars

• ET3s

– Lack of formality a deceptive comfort– Making out a case– Controlling the battlefield

CMDs

• Critical point• Defining the issues• Sequential Witness Statements- the value of groundwork • Disclosure the terms of the order• Schedules of Loss• Order of witnesses