Out with the old in with the new - Welcome to ELA | ELA · 2016-11-20 · Out with the old in with...
Transcript of Out with the old in with the new - Welcome to ELA | ELA · 2016-11-20 · Out with the old in with...
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
(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
• 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?
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?
TUPE
• Harmonisation by the
back door?
• Factors:
• How much time has
elapsed?
• ‘Close and direct link’