An ex-employee has threatened to bring an Employment Tribunal claim against the nursery. Will a settlement ensure the fact of the potential claim and the details of its background do not become public knowledge?
It is important that any settlement terms are recorded in writing in a settlement agreement or an ACAS (COT3) agreement. Such agreement should include appropriately drafted confidentiality terms, to ensure that the settlement terms and the circumstances surrounding the dispute cannot be disclosed by the ex-employee. Many employers will also include terms ensuring that the ex-employee cannot make disparaging statements about the nursery or any employees of the nursery.
However, there remains the possibility that the fact of a claim may become public knowledge. This is because in recent weeks, judgments of the Employment Tribunal have started to be published online. This means any person can make an online search against the name of an employer or individual. If a claim is made in the Employment Tribunal and has been withdrawn because it has been settled, a copy of the judgement recording that fact may now be readily accessed through the online system.
Where confidentiality is an influencing factor for settlement, it is suggested that careful consideration is given to the timing and mechanics of settlement. Achieving resolution through a properly drafted settlement agreement before proceedings are issued is advisable.
I am considering selling a nursery as a going concern. Are there any obligations to inform the employees and, if so, at what point must I tell them?
The sale is likely to trigger obligations under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE). There will be a duty to inform in every TUPE transfer situation. Failure to comply with such obligation could result in liability of up to a quarter of the annual payroll costs (13 weeks’ uncapped salary per affected employees).
The obligation is to inform (and also in some circumstances to consult with) a trade union or an elected employee representative body (if there is no union). Certain prescribed information must be given, including details of any measures the buyer envisages taking in relation to the existing nursery employees. If there is no existing representative body, one must be elected (unless there are fewer than ten employees).
There is no minimum time limit for providing the information, although this should be provided in good time prior to the sale.