Out with the old in with the

new

ELA Annual Conference

25 May 2016

Unilateral

variation

‘Your terms and conditions

of employment may be

subject to variation

depending on the

requirements of the

business’

Consultation

• Is s. 188 triggered?

• Sharing sensitive

commercial information

with union reps.

• Effect of collective

agreement

Failure to agree

• Collective dispute

resolution procedure

• Put offer direct to

employees?

• Section 145B TULRCA

Consideration

• Does offer have to include

consideration?

• Re-Use Collections Ltd v Sendall

[2015] IRLR 226

• Nominal consideration

• Continuing employment

Remedies

• Section 145E

• Keep any money paid or for sue

for it;

• Plus £3800 compensation;

• Section 152(1)(bb)

• Dismissal automatically unfair

Brain teaser

s. 145E(4) Where an offer made in

contravention of section 145A or 145B is

accepted -

(a) if the acceptance results in the worker's

agreeing to vary his terms of employment,

the employer cannot enforce the agreement

to vary, or recover any sum paid or other

asset transferred by him under the

agreement to vary;

(b) if as a result of the acceptance the

worker's terms of employment are varied,

nothing in section 145A or 145B makes the

variation unenforceable by either party.

Dealing with

employees

• Obligation to consult with individuals?

• Q&A

• Real opportunity for employees to

contribute

Implementation

Implementation

• Timing – cut-off date for

acceptance

• Vary existing terms or

new contracts?

• Convenience v risk

Dismissal and

re-engagement

• What is the reason for dismissal?

• Redundancy

• SOSR

• Is reason ‘substantial’?

• Can an unenforceable restrictive

covenant ever be a sound reason

to vary?

Fairness

• Balancing exercise

• Scrutiny of financial

situation

• Concessions

Concessions

• Enhancements scaled back rather

than removed altogether?

• Phased in over a period of time?

• Temporary?

• Pre-planned and conceded

strategically, or genuinely agreed as

part of the process?

Senior pay

a. Could enhancements be scaled back rather than removed

• Right of appeal

• Does ACAS Code of

Practice apply?

TUPE

• Harmonisation by the

back door?

• Factors:

• How much time has

elapsed?

• ‘Close and direct link’

Jason Galbraith-Marten QC

jgm@cloisters.com