Time Limits for the ApplicatioN	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
Early Conciliation	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
STARTING A CLAIM – ET1	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 1 160; Level 2 250) on issue of claim (Rule 11)
RESPONDING TO A CLAIM – ET3	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.
Initial COnsideration (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)
DEFAULT JUDGMENTS	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
Case management (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)
Preliminary hearing (Rule 53-56)	(a) conduct a preliminary consideration of the claim and make a case management 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.
the hearing (Rule 57-59)	Fee will have to be paid 950 (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), cross-examination (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 Claimant opened Claimant cross-examined Defendant cross examined Defendant re-examined Defendant closing speech Claimant closing speech Liability Quantum
TriBUNAL Decision (Rule 62(5)	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).
Reviews	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)
Appeals	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

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.

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.

IMPOSE NEW TERMS AND CONDITIONS, ISSUE NEW CONTRACTS AND WAIT FOR EMPLOYEES TO REACT	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
DO NOTHING – DON’T MAKE THE CHANGE	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
DISMISS ALL EMPLOYEES WITH LESS THAN YEARS CONTINUOUS EMPLOYMENT (GIVE CORRECT NOTICE SO NO WD)	ADVANTAGES No claims for UD DISADVANTAGES Could be dismissing the people who want to do the hours and are good
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 OPTION)	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
OFFER UPSET GROUP SEPARATE T&C’S	Would create animosity amongst other employees

Client: Robert Graham

Position: Chief Executive of Weyford Further Education College

Objective: Change to SOME employees terms and conditions (specifically hours of work)

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...

#13954 - Changing Terms And Conditions And Negotiating Settlements - Employment Law

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