Please enable JavaScript.
Coggle requires JavaScript to display documents.
DISPUTE RESOLUTION and EMPLOYMENT Law (:scroll: CLAIM FORM (N1 FORM) (In…
DISPUTE RESOLUTION and EMPLOYMENT Law
PART 36
:scroll: CLAIM FORM
(N1 FORM)
In the box at the top of the form Enter the NAME of the Court or Division in which proceedings should be issued -PD 7A para 4.1
:underage:If the Claimant is under 18 he or she will normally be represented by a litigation friend e.g Simeyah Sawney (A Child by Louisa Degale her litigation friend)
If the Claim is only for a specified amount of money you should include in the "Value" section on page 1 a statement of the amountof accrued interestbeing claimed CPR 16.2cc
The Claim form can be issued without the Particulars of Claim - Practice Direction 7A Para 6
If the Claim is for an unspecified amount of money you can effectively ignore the "legal representative's costs"box at the bottom of the first page
If either of the party's full address and postcode is not included, the court WILL issue the claim form but will not serve it PD 16 para 2.5
In the section entitled"Brief details of claim" Brief details of the circumstances must always be given CPR 16.2(1A) b
Practice Direction 5A.3 Where that partnership has a name, unless it is inappropriate to do so, claims must be brought in or against the name under which that partnership carried on business at the time the cause of action accrued.
Limited Liability Partnership is different and should be identified LLP
"Trading as" - for a party who is suing or being sued as an individual
CPR 45.1 Legal Representatives Cost Box - This box can be left blank or given an appropriate entry such as "To be assessed"
CPR 45.2 FIXED COSTS
The amount of fixed costs can be determined by a table of fixed costs on commencement
CPR 45.3 Amount available in terms of fixed costs on entry of judgement - in table.
WS1 PRE-ACTION STEPS
ADR
Mediation
a third party has written statements from the parties, discusses the case with each party on a without prejudice basis, identifies areas of disagreement and importance, and tries to move the parties towards constructive solutions.
Med-Arbitration
Here the parties agree to attempt mediation first and if that fails to refer the matter to arbitration.
Final Offer Evaluation
where a third party is instructed to choose between settlement terms proposed by each of the parties.
Early Neutral Evaluation
where shortly after a dispute arises the parties ask a third party to give a preliminary view of their respective
Judicial Appraisal
where a legal expert is asked to offer a preliminary view of the parties' legal positions.
Mini-Trial
a third party sits as chairman of a tribunal with a senior representative of each party.
Under paragraph 3 of the Practice Direction - Pre-action Conduct and Protocols parties must of course consider ADR, but there is no requirement actually to engage in it
Expert Determination
Expert Determination will achieve a quick, confidential, relatively cheap and final binding resolution. It is also highly relevant that the dispute turns on technical points suitable for expert analysis.
FUNDING
CASE ANALYSIS
Breach of Contract
Sale of Goods
Limitation Act 1980 : 6 years from the date of breach within which to bring its claim.
:atom_symbol: PARTICULARS OF CLAIM
1.Contractual term relied on
2.Purported performance by Defendant
3.Particulars of Breach of contract
Factual Consequences of Breach
Particulars of Breach of Contract
6.Purported Performance of the contract by the defendant
PART 36 & APPLICATIONS
INTERIM APPLICATIONS
TACTICAL APPLICATIONS
PART 36
:table_tennis_paddle_and_ball: DEEMED SERVICE
METHODS
:open_hands::skin-tone-5: :house: Personal service by hand / Delivery to Permitted Address
:table_tennis_paddle_and_ball::clock430:=:arrow_down: SAME DAY If BEFORE 16:30 ON BUSINESS Day
Directly to individual
CPR 6.5(3)(a)
/ company director or chief exec
CPR 6.5(3)(b)
/ person with control in partnership
CPR 6.5(3)(c)
:postbox::twisted_rightwards_arrows: 1st Class Post / Document Exchange
:table_tennis_paddle_and_ball: :two: 2 BUSINESS DAYS from posting
:fax::incoming_envelope: Fax / Email
:table_tennis_paddle_and_ball::clock430:=:arrow_down: SAME DAY If BEFORE 16:30 ON BUSINESS Day
"BUSINESS DAY"
Any day except weekend and Bank Holidays
:postbox::city_sunset: 2nd Class Post
:table_tennis_paddle_and_ball: Can be used only if company recipient
:table_tennis_paddle_and_ball::scroll: Deemed service for Claim Form
:outbox_tray::clock12:=:calendar::calendar::calendar::calendar: must send within 4 Calendar months of Claim Form's DATE OF ISSUE before midnight
:table_tennis_paddle_and_ball::point_down::office: Where a Sol has informed you s/he is authorised to accept service
CPR 6.7
(if not informed, can use registered / last none address
CPR 6.9
)
:table_tennis_paddle_and_ball::two: 2 BUSINESS DAYS
:eye::table_tennis_paddle_and_ball: Filing of Acknowledgement of Service
:scroll:+:atom_symbol::eye::table_tennis_paddle_and_ball: When CF + PoC served together = must be FILED 14 CLEAR days of deemed service of both docs
(CPR 10.3(1)(b))
:scroll: … :atom_symbol::eye::table_tennis_paddle_and_ball: CF served then PoC later = must be FILED 14 CLEAR days of deemed service of PoC only
(CPR 10.3(1)(a))
:red_cross::eye:= :female-judge::skin-tone-5: NO acknowledgement = DEFAULT JUDGEMENT or must have filed defence within 28 days
"CLEAR DAY"
All the days after start date, counting weekends and bank holidays
:moneybag: COST MANAGEMENT
DISCLOSURE + CASE MANAGEMENT
WITNESS STATEMENTS + EXPERT EVIDENCE
LETTER BEFORE CLAIM
"Please supply us with copies of the following documents which are believed to be in your possession and are essential to our client's case". [The documents are then listed] para 6 PRACTICE DIRECTION for Pre-action Protocol
"We enclose a copy of the Practice Direction - Pre-action Conduct and Protocols issued by the courts (“the Practice Direction”) and draw your attention in particular to the court's power to impose sanctions under paragraph 16 for failure to comply with the Practice Direction
:seedling:
EMPLOYMENT LAW
:chains:
EMPLOYMENT RELATIONSHIP
:scroll:
CONTRACT
:red_cross::scroll: Employer NOT legally obliged to provide WRITTEN contract
:star2: Employee
ENTITLED
to
SECTION 1 STATEMENT
Must
OUTLINE KEY TERMS
Include common law/ stat
IMPLIED TERMS
:scroll:
EMPLOYMENT CONTRACT
:
"a CONTRACT of SERVICE or APPRENTICESHIP"
(s230(2) ERA 1996)
can be EXPRESS or IMPLIED
Can be ORAL or in WRITING
:scroll: = :office:
3 COMPONENTS
of
"CONTRACT of SERVICE"
(READY MIXED CONCRETE 1968)
- if all 3 fulfilled = can be EMPLOYEE
:tophat::point_right::skin-tone-5:
CONTROL BY employer
Employee subject to employer's INTERNAL DISCIPLINARY PROCEDURE
:point_right::skin-tone-2::point_left::skin-tone-6:
MUTUALITY of OBLIGATIONS
Employee obligation to DO WORK
Employer obligation to PROVIDE WORK + PAY FOR work
:open_hands::skin-tone-5:
PERSONAL SERVICE
from person doing work
NO SUBSTITUTE
completing work ...
...
unless CONTRACT ALLOWS
for substitutes
if UNWILLING TO WORK
(Express & Echo Publications v Tanton)
...
unless CONTRACT ALLOWS
for substitutes
if UNABLE TO WORK
(MacFarlane v Glasgow City Council)
or if on
HOLIDAY / SICK LEAVE
(James v Redcats)
:mega:
POLICIES
:biohazard_sign:
HEALTH & SAFETY
policies
:point_right::skin-tone-5:
DISCIPLINARY
policies
:dancers:
DIVERSITY
policy
:red_flag:
WHISTLE-BLOWING / ANTI-BULLYING
policies
:silhouette::clipboard:
EMPLOYMENT STATUS
Burden of proof on Claimant (not only label in contract)
Should
LOOK BEYOND TERMS
to and
PRACTICAL REALITIES
of work will PREVAIL
(Autoclenz v Belcher)
:office:
EMPLOYEE
:office:
EMPLOYEE Obligations
:money_with_wings: TAX & National Insurance Position
Contractual rights and obligations to employer
:office:
EMPLOYEE Rights
Employees have greater statutory rights
UD + Redundancy Payment claims
WD claims
Claim for UNPAID NOTICE
EMPLOYEE
=
"someone who WORKS under an EMPLOYMENT CONTRACT"
(s230(1) ERA 1996)
Employee / Worker if
DOMINANT PURPOSE
of contract is that person
PROVIDES PERSONAL SERVICE
(James v Redcats)
:construction_worker::skin-tone-5:
SELF-EMPLOYED
:construction_worker::skin-tone-5:
SELF-EMPLOYEE Obligations
:money_with_wings: TAX & National Insurance Position
:construction_worker::skin-tone-5:
SELF-EMPLOYEE Rights
:red_cross::green_cross::scales: NO UNFAIR Dismissal claims
SELF- EMPLOYEE
factors
:face_with_cowboy_hat:
DEGREE OF CONTROL
over ACCEPTANCE / METHOD OF COMPLETION of person's work
:red_cross::desert_island::nauseated_face: If person is
NOT
entitled to
HOLIDAY NOR SICK PAY
:point_down::skin-tone-4::tent::moneybag:
PROVIDING OWN EQUIPMENT / PREMISES / CAPITAL
into the business - bears OWN ECONOMIC RISK for business failure
:point_right::skin-tone-3::cherries:
WIDE POWER of SUBSTITUTION
Self-employee if
DOMINANT PURPOSE
of contract is
NOT PERSONAL SERVICE / DIFFERENT PURPOSE
(James v Redcats)
:red_cross::martial_arts_uniform:
NOT
be given company
UNIFORM
:red_cross::cricket_bat_and_ball:
NOT
subject to
INTERNAL DISCIPLINE
procedure
:hammer_and_wrench:
WORKERS
:hammer_and_wrench:
WORKERS Obligations
:hammer_and_wrench:
WORKERS Rights
Bring
PAID ANNUAL LEAVE + DISCRIMINATION claims
Working Time Regulations
WORKER
(broader term including employee) =
"someone who WORKS under an EMPLOYMENT CONTRACT"
(s230(3)(a) ERA 1996)
or
"someone who WORKS under any OTHER
oral express / written express / implied
CONTRACT
to
PERFORM PERSONAL WORK / SERVICE FOR ANOTHER
non-client / non-customer
PARTY*
to contract"
(s230(3)(b) ERA 1996)
Employee if
DOMINANT PURPOSE
of contract is that person
PROVIDES PERSONAL SERVICE
(James v Redcats)
:sunrise_over_mountains:
CASUAL WORKER
:sunrise_over_mountains:
CASUAL WORKER Rights
:red_cross::green_cross::scales:
NO UNFAIR DISMISSAL
claims due to
LACK of NECESSARY CONTINUITY
during periods of inactivity
(Carmichael v National Power)
:sunrise_over_mountains:
CASUAL WORKER Obligations
CASUAL WORKER
= work for an employer on an
INTERMITTENT BASIS
:tophat:
EMPLOYER
:tophat:
EMPLOYER Obligations
:explode::point_right::skin-tone-4: Employer
VICARIOUSLY LIABLE FOR TORTS COMMITTED
by employee during
course of employment
:scroll:= :eye: Employer ensures
CONTRACTUAL DOCUMENTATION REFLECTS REALITY
of work
(as courts will assess practical realities of work when considering validity of contract terms
(Autoclenz)
)
:alarm_clock: :green_cross::scales: Employer
CONSTANTLY REVIEWS working ARRANGEMENTS
to assess
WHEN 2 YEAR+ SERVICE
employee will become
eligible FOR UD + STAT RED payment
ACT in accordance
with status they
INTEND TO GRANT
person working
:gift: For
BONUSES
employees entitled to by contract:
:tophat::red_cross::smiling_imp: Employers must
NOT EXERCISE DISCRETION
to award bonuses
IN BAD FAITH / CAPRICIOUSLY
= if does, breach of contract for WD claim
(Clark v BET)
Obliged to
PROVIDE BONUS SCHEME
+
SALARY ADJUSTMENT
if contract confers a
right on employees to PARTICIPATE
in these employment schemes
(Clark v BET)
:tophat:
EMPLOYER Rights / Choices
:office: or :construction_worker::skin-tone-4:
DECIDE
if they want / need
EMPLOYEES or SELF-EMPLOYED people
?
:-1::skin-tone-4:
WRONGFUL DISMISSAL
(Common Law Dismissal for breach of contract)
ELIGIBILITY CRITERIA
for WD claim
:explode: Dismissal by
BREACH OF CONTRACT
Termination WITHOUT / SHORT NOTICE
Termination BEFORE EXPIRY of NO BREAK CLAUSE within contract
Employee / worker establishes he's been CONSTRUCTIVELY DISMISSED
Claimant WORKER / EMPLOYEE +
CONTRACTED
with defendant
+
PROVE D BREACHED CONTRACT
+
led to actual
DISMISSAL
If no dismissal = mere contract breach
Can be EXPRESS or IMPLIED term
Claim within 6 YEAR limitation
period generally
:european_post_office:
Claim within 3 MONTHS of TERMINATION
Which
COURTS
?
:european_post_office:
Employment TRIBUNAL
:warning: Tribunal can
NOT HEAR
claims relating to
CONFIDENTIALITY
(art 3,1994 Order)
or
RESTRICTIVE COVENANTS
(art 5, 1994 Order)
:tophat::arrow_right_hook:
EMPLOYER
can raise
COUNTER-CLAIM
against employee for breach claim
:female-judge::skin-tone-5:
CIVIL COURTS
:warning: Can
NOT RE-ISSUE
contract claims
ALREADY STRUCK OUT
by Employment Tribunals as abuse of power
(London Borough of Enfield v Sivanandan)
:warning: Can
NOT RE-ISSUE WITHDRAWN
contract claims in civil court ...
... :mega:
UNLESS PURSUIT IN CIVIL COURTS
is the
REASON for withdrawal
, explained to the employment tribunal at first instance
If
<£5K CLAIM
=
COUNTY COURT
on
SMALL CLAIMS Track
If
£5K+ CLAIM
=
CIVIL COURT
Available
REMEDIES
?
:money_mouth_face:
DAMAGES
due to breach of contract
:female-judge::skin-tone-5:
UNLIMITED AMOUNT
recoverable in civil court only
Or
£25K MAX
in civil if
ALREADY HIGH VALUE TRIBUNAL claim
brought
:european_post_office:
£25K MAXIMUM
recoverable in emp tribunals
(art 10, 1994 Order)
:1234::money_mouth_face:
CALCULATION of WD Damages
Assess
POSITION Cl WOULD HAVE BEEN in
if the Employer
HAD PERFORMED
their obligations under employment contract
(Hadley v Baxendale)
:libra:
UNFAIR DISMISSAL
(Statutory Dismissal)
Which
COURTS
?
:european_post_office: Only at
EMPLOYMENT TRIBUNAL
Available
REMEDIES
?
:money_mouth_face:
BASIC
AWARD of
COMPENSATION
(set formula)
:chart_with_downwards_trend::money_mouth_face:
COMPENSATORY Award
for
ACTUAL FINANCIAL LOSS SUFFERED
MAXIMUM is £86,444 if dismissed on / before 6 April 2019
STRICT ELIGIBILITY
criteria for UD claim
:office:
ONLY
available to
EMPLOYEES
:scales::thought_balloon: Did
EMPLOYER
have a
FAIR REASON FOR DISMISSAL
?
:registered: Were the
EMPLOYER'S ACTIONS REASONABLE
?
:inbox_tray:
REDUNDANCY (Payment)
(following
successful Unfair / Statutory Dismissal
claim)
STRICT ELIGIBILITY
criteria for REDUNDANCY PAYMENT
:office:
ONLY
available to
EMPLOYEES
Which
COURTS
?
:european_post_office: Only at
EMPLOYMENT TRIBUNAL
Available
REMEDIES
?
:money_mouth_face::red_cross::office:
BASIC
AWARD of
COMPENSATION
(set formula) for
LOSS OF SECURE JOB
:angry:
DIRECT DISCRIMINATION
Treated less favourably due to a protected characteristic
:speaking_head_in_silhouette:
HARASSMENT, INDIRECT DISCRIMINATION & CLAIMS PROCEDURE
:wheelchair:
DISABILITY DISCRIMINATION
Disability claims
General claim under Equality Act (protected characteristic)
discrimination arising out of disability
claim of failure to make reasonable adjustment
TRANSFER FOR UNDERTAKINGS
(TUPE Regulations 2006)
When a business is sold ...
Do you then become an employee of the new business?
does the new business have to take you on?
Will new employers honour the terms of your original contract of employment?
can new employers they halve your pay, reduce your holidays, et cetera?
VARYING TERMS & CONDITIONS + NEGOTIATING SETTLEMENTS
Procedure
Start with
EARLY CONCILIATION
:green_cross::MEGA: CLAIM'S FOR
UNPAID NOTICE
Which courts?
ELIGIBILITY CRITERIA
for Unpaid Notice claim
<1 YEAR SERVICE
EMPLOYEE / WORKER claims if contract
TERMINATED with INSUFFICIENT NOTICE
:warning: If employee, check
s86 ERA 1996
MINIMUM NOTICE PERIODS
are broken
Available
REMEDIES