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Entries in Compromise Agreements (5)

Thursday
Nov142013

Racing pundit, John McCririck, loses his claim for age discrimination against Channel 4

 

In a unanimous judgment, the London Central Employment Tribunal has ruled against the horse racing pundit, John McCririck, in his claim for age discrimination against Channel 4 and IMG Media Ltd.

Mr McCririck, who is 73 years of age,  had lodged the claim of age discrimination, reportedly for compensation of up to £3 million, after he was removed from his presenting role on Channel 4’s racing programme in 2012. Clare Balding, who is 42, now heads up the new presenting team.

The tribunal found that the decision to remove Mr McCririck from his presenting role was made in order to achieve the legitimate aim of attracting a wider audience to Channel 4’s horse racing broadcasts. 

The Hearing took place over 6 days and then the Tribunal took an additional 2 days to consider their decision before delivering the their judgment. During the Hearing, the Tribunal was:
  • shown extracts from televised series of ‘Celebrity Big Brother’ and ‘Celebrity Wife Swap’ in which John McCririck had appeared;
  • presented with a large number of press articles in which Mr McCririck had expressed his views on women, including one piece from the Daily Mail in 2005, where Mr McCririck is quoted as saying “God they moan. Headaches, periods, you have to put up with all this moaning when you employ women”; and
  • heard evidence from Mr McCririck himself and under cross examination he referred to himself as “an unpleasant person” and a “loud mouthed bigoted bore”.
Having heard all the evidence, the Tribunal determined that Channel 4’s decision was not related to his age but instead based on other factors, described by Employment Judge Lewzey as Mr McCririck’s “pantomime persona” and “bigoted and male chauvinist views”. The Tribunal concluded that Mr McCririck was “unpalatable to a wide potential audience”. With that in mind, the Tribunal concluded that Mr McCririck’s dismissal was not age related.

Whilst Mr McCririck has described the judgment as an “historic set-back” for older employees, in reality the decision is unlikely to have far-reaching implications. Each case which comes before a Tribunal will be decided on its merits and the judgments will be based on an assessment of facts and evidence available. In Mr McCririck’s case, Channel 4 were able to demonstrate to the Tribunal that age was not a factor in its decision to remove him from his presenting role. This highlights the importance of employers keeping good written records in the process leading up to dismissal.

 

This article was prepared by Robyn Armes in our Employment Team at Greene and Greene. The contents of the article are for general information only but if you have concerns about discrimination in the workplace, please do not hesitate to contact Robyn, Selene Holden or Jemma Jones  at Greene & Greene for more information.

Robyn advises on a wide range of contentious and non-contentious employment matters including; reviewing and drafting employee handbooks and policies, redundancy and restructuring advice, preparation and review of contracts of employment and more .

Also find Robyn on:      Google +        LinkedIn

Wednesday
Nov062013

Sharon Shoesmith Settlement Pay-out

You may very well have seen the recent reports in the news of the £600,000 plus reported pay-out to Sharon Shoesmith, the Director of Haringey Council’s Children’s Services who was sacked in 2008 after the highly publicised and tragic death of Baby P.

But how does this reported six figure deal square with the fact that compensation for unfair dismissal in the Employment Tribunal should, in Ms Shoesmith’s case, have been capped at £74,200?

The reason for the magnitude of the pay-out is that this was not just a claim of unfair dismissal. It was actually a judicial review claim and therefore not subject to the usual Employment Tribunal caps. Ms Shoesmith challenged the way in which her employment had been brought to an end without any proper procedure and without the opportunity for her to respond to the allegations laid at her door.  The day after a damning OFSTED report into the case was published, Mr Balls made the decision to remove Ms Shoesmith from her post. This was a decision which she only found out about when Mr Balls announced it live during a press conference later the same day. The Council then dismissed her shortly afterwards, again seemingly without regard for the ACAS Code and without following due process. Ms Shoesmith’s case was largely based on her claim that she was not given the opportunity to respond to the case against her at any stage.

The Court of Appeal ruled in May 2011 that her dismissal had been unlawful and was therefore void, which meant that she was entitled to full back-pay and pension contributions for the intervening period. Given that Ms Shoesmith had previously commanded a salary of £133,000 per annum and was struggling to find alternative employment, it is perhaps not so surprising that the settlement ultimately reached was in the region of £600,000.  

It is to be noted that Ms Shoesmith was only able to launch her judicial review claim by virtue of the fact that her position at Haringey Council was a “statutory office”. Whilst this is not an option available to most employees, this case does serve as a timely reminder for employers of the importance of following a fair process when contemplating dismissing an employee.

This article was prepared by Robyn Armes in our Employment Team at Greene and Greene. The contents of the article are for general information only but if you have concerns about unfair dismissal or would like to know how to follow a fair procedure, feel free to contact Robyn, Selene Holden or Jemma Jones  at Greene & Greene for more information.

Robyn advises on a wide range of contentious and non-contentious employment matters including; reviewing and drafting employee handbooks and policies, redundancy and restructuring advice, preparation and review of contracts of employment and more .

Also find Robyn on:      Google +        LinkedIn

Wednesday
Oct162013

Financial Penalties for Employers who lose at Tribunal

On Tuesday 8th October 2013, Jo Swinson (Minister for Employment Relations) announced that the government would be introducing financial penalties for employers who lose at Tribunal.

She stated that from April 2014 the law will be changed to allow Employment Tribunals to impose penalties, which will be payable to the Secretary of State rather than to the employee, in cases where workers’ rights have been breached and there are “aggravating factors”.

The penalty will usually be 50% of the amount awarded to the employee, however this will be subject to a minimum of £100 and a maximum of £5,000. It will also be possible for a penalty to be imposed in situations where no financial award is made to the employee. The penalty will be halved if the employer pays within 21 days.

Unfortunately, but perhaps not surprisingly, there is no definition  of “aggravating factors” in the legislation but some limited guidance has been provided by the Department for Business, Innovation and Skills which has suggested that Tribunals would impose penalties where "the breach involves unreasonable behaviour, for example where there has been negligence or malice involved” but suggests that genuine mistakes by the employer will not be penalised.

In practice, only time will tell how and when the financial penalties will be applied.

If you would like to know more about the introduction of financial penalties for employers, please contact Robyn Armes in our employment team at Greene & Greene for more information on robynarmes@greene-greene.com or telephone 01284 717446.

Robyn advises on a wide range of contentious and non-contentious employment matters including; reviewing and drafting employee handbooks and policies, redundancy and restructuring advice, preparation and review of contracts of employment and more .

Also find Robyn on:      Google +        LinkedIn

Tuesday
Sep032013

Off the Record - New Opportunities in Employment Law

A number of employment law changes came into force this summer, which affect employers and employees alike.

One of the most significant changes introduced is the ability for employers and employees to have confidential settlement conversations with one another. Prior to the new law coming into force on 29 July 2013, genuine ‘off the record’ conversations were only really possible if there was a dispute between the employer and employee. Now the law is set up to expressly permit such discussions, even where there is no dispute and these discussions will not be admissible in any subsequent unfair dismissal claim.

Settlement discussions are voluntary and if both parties agree, can be a very positive way of resolving potentially difficult employment issues in an amicable fashion.  Typically an employer may wish to have a confidential settlement discussion as an alternative to a pursuing an open disciplinary process, for example, where there are performance issues.  This can save an employer a lot of management time and it can enable an employee to move forward with a clean disciplinary record and with some money to tide them over until they find other work.

To ensure that the conversation is genuinely confidential, both parties must comply with the ACAS Code of Practice on settlement agreements (a copy of which can be downloaded from the ACAS website www.acas.org.uk). Amongst other things the Code recommends that employees are offered the right to be accompanied at meetings held to discuss settlement and that employees should be given at least 10 days to consider the employer’s offer.

Under a settlement agreement an employee will commonly receive a payment in lieu of their notice period and any accrued holiday pay, together with an additional sum to compensate them for the loss of their employment. The amount of the compensatory sum will vary from case to case, taking into account matters such as the employee’s length of service, their earnings and the nature of any disciplinary issues which have led to the settlement discussions.  Up to £30,000 of the compensation sum can potentially be paid free of tax and national insurance contributions.

In order for a settlement to be binding, both parties will be required to sign what is known as a Settlement Agreement. The agreement will usually contain provisions requiring both parties to keep the terms of the settlement confidential and will more often than not include an agreed reference for the employee. In order for the Settlement Agreement to be binding, the employee must take independent legal advice on the terms and effect of the agreement, which commonly the employer will pay for. Once an employee has signed a valid Settlement Agreement, they will usually be prevented from pursuing a claim against their employer.  It is important to note that a settlement discussion cannot be used as a tool to protect an employer against discrimination complaints. 

If you require any further information or wish to discuss this article in more detail, please contact Selene Holden, head of the Employment Law Team at Greene & Greene, on 01284 717436 ~ seleneholden@greene-greene.com ~ @holdenselene ~ @greenegreenelaw.

This article first appeared in Bury Edition, September 2013.

Selene is an employment law specialist at Greene & Greene, her work includes: preparation of contracts of employment; redundancy advice; advice on and preparation of compromise agreements; and advice about how to manage tricky situations which arise in the work place.

Also find Selene on:      Google +         Twitter

Monday
Feb182013

Are gagging clauses in compromise agreements lawful?

The Public Interest Disclosure Act 1998 (PIDA) provides protection against victimisation and dismissal for “whistleblowers”; workers who make certain disclosures about matters of public interest, for example malpractice by their colleagues, employers or third parties. However, the recent and highly publicised case of Gary Walker, a former NHS Executive who signed a compromise agreement containing a confidentiality clause has brought into question whether compromise agreements might not work.

It stands to reason that an employer entering into such an agreement will want to ensure that its position with regard to confidentiality is adequately protected. As such, it is standard practice for employers to include a confidentiality clause in the compromise agreement seeking to prevent the former employee disclosing the terms of the agreement, the detail of the dispute it relates to and the circumstances surrounding the termination of the employment relationship. Often former employees are also prevented from making any adverse or derogatory statements about the employer.

However, what happens if such a clause conceals matters which are of public interest; is that right? Is it illegal? Is it a good idea?

Mr Walker signed a compromise agreement around two years ago in return for a £500,000 pay-out. He has now stated that he did so under duress as he was concerned about losing his home if he did not agree to the terms. He has spoken out about the patient safety concerns that originally raised and which he believes were the real reason for his dismissal. As a result the NHS Trust that he worked for has told him that he must give his pay-out back. He is winning support from some MPs and publicity on the BBC. He claims there is an endemic culture throughout the NHS of oppressing information which may embarrass ministers or civil servants. It is possible that compromise agreements are being used unlawfully to ‘gag’ former employees and prevent them from making their concerns publicly known. 

So what should our clients do about the matters raised in Mr Walker’s case? If you get it wrong there is a risk that a “gagging” clause will be unlawful and, as a result, the whole agreement might be unenforceable. That means that your ex employee can tell others what he was paid, and suggest they might ask for the same when you fire them in the future. Our compromise agreements already qualify gagging clauses by stating that they will not apply where a disclosure is required or permitted by law. That stops them being unlawful. One might elaborate on that to state explicitly that the clause does not prevent the employee from making a protected disclosure under PIDA. “Protected Disclosures” tend to be about malpractice that is genuinely of public interest, such as risks to patient safety in the Health Service. The day to day affairs of most employers in the private sector will never fall into that category and allowing “protected disclosures” is unlikely to present any problems in practice.

The contents of this article are for general information only. If you would like more information on any of the issues raised, or if you would like assistance with drafting a compromise agreement, please contact Robyn Armes at Greene & Greene on 01284 717446 or via email on robynarmes@greene-greene.com

Robyn advises on a wide range of contentious and non-contentious employment matters including; reviewing and drafting employee handbooks and policies, redundancy and restructuring advice, preparation and review of contracts of employment and more .

Also find Robyn on:      Google +        LinkedIn