P&O Ferries

[Jdsk]

A contract is not enforceable under English law if made under duress.
https://en.wikipedia.org/wiki/English_c ... conscience

I have been wondering what would happen if a dismissed employee applied for compensation and won, but the amount was less than that previously offered by the employer. At the moment I'd guess that the employer's offer is time-limited in a way that this won't arise.

Exactly.

In the words of the great Bard Clint 'Do you feel Lucky?' (not my view, but the realpolitik of matters)

A protective award* of 3 months salary is there for all, without question - so what I would do is take the £ and then slap in, via my TU an extra claim for that. I expect P&O knows that very well and has put it in the budget.

*For failure to consult - cannot be signed away by a Settlement Agreement unless facilitated by ACAS

"The firm said by early Thursday afternoon all but one crew member, who could not be identified, had joined their redundancy process. The offer included a gagging clause prohibiting sacked crew from discussing P&O or taking further legal action. The promised payouts are understood to be higher than staff could have won had they sued at industrial tribunal."

https://www.theguardian.com/business/20 ... on-sacking

"A former P&O Ferries chef is reportedly suing the company for unfair dismissal, racial discrimination and harassment.

John Lansdown has filed a tribunal claim against the company and its chief executive, and is seeking financial compensation and exemplary damages of up to £76m, according to the BBC."

https://www.theguardian.com/business/20 ... rimination

Jonathan

[Jdsk]

"Speaking for the government, Stephen Greenhalgh, a levelling up minister, responded on Wednesday night saying: “On 28 March 2022 DP World resigned from the Solent freeport board and are no longer a partner in the freeport consortium.”"
https://www.theguardian.com/business/20 ... t-freeport

Jonathan

[Crawf0rd]

You can 'sign away' your rights on being made redundant, unfairly dismissed, etc., but only in certain closely controlled circumstances:111 and 111A Employment Protection Act 1996 e g the agreement to do so must be fully explained to you, and approved by, an independent lawyer. The ACAS website sets out the laters rules.

But first, this is not a redundancy situation. That only exists when the requirement for the work has ceased or diminished or is expected to do so. Here the engagement of agency staff proves that that cannot be the case. Subject to hearing what both sides have to say on the point I consider it to be 800 cases of unfair dismissal for which the compensation is much greater.

I have read that these former employees were told that they had to write in their contracts that they were made "at sea" when in fact they were not, but that if they did not they would not be employed. If they can prove, e g by bank transactions dated and timed, that they were made on land in, say, Dover, or wherever, then the Courts would say P&O Ferries were, shall we just say "all at sea".

The employees should also check if there is a jurisdiction clause i e which Courts are to be used and which system of law applied. If there is none then the Civil jurisdiction and Judgments Act 1982 applies and English law and Courts have jurisdiction if the contracts were entered into in , say, Dover, or wherever, or in certain other circumstance e g the principal place of business of the employer.

If I were advising such an ex-employee I would therefore suggest, subject to my seeing all the evidence and listening to what the other side has to say:

1. He or she signs the agreement, which is unenforceable against him or her, and takes the money on offer;

2. Applies to an Employment Tribunal within 12 weeks of 17 March for an order that he/she was unfairly dismissed;

3. Considers an application to the High Court for simple breach of contract, as I assume there will have been provisions for a notice period which were not honoured;

4. Applies within 3. above for a declaration that theirs was a 'relational' contract within the meaning of B. P. Shipping v. Braganza [2015] UKSC 17and therefore has as implied terms a duty on both sides of honesty and fair dealing which were breached first by P&O, thereby releasing the ex-employees from further compliance

I have to declare an interest, although a different one, in that I arrived in Rotterdam from Krakow at 19.15 17 March with a ticket for the 21.00 departure for Hull only to be told of the dismissals and that ferry would not be leaving. I was sold this ticket Sunday13th at Hull at which time they knew what they had planned and therefore that my return ticket would not be honoured. Finding a hotel in dockland suburb of Rotterdam in the dark and after a 26 hour drive when on chemotherapy was a bit of a challenge, but I'm still here. If anyone wants to contact me on this issue, whilst 73 years old and no longer in practice I shall be happy to help: tel. 07813 067519 (Llandudno)

[Crawf0rd]

P&O Ferries cannot get away with this. The 'contracts of compromise' the employees were asked to sign are unenforceable unless explained and approved by an independent lawyer: s.111 and 111A Employment Protection Act 1996. They should sign, take the money and run...to the nearest Employment Tribunal, making sure to get there within 12 weeks of 17th March.

If they were made to sign that the contract was "made at sea" when it was not, but instead made in, say Dover, the fact that they did so will not be enforceable against them and the Civil Jurisdiction and Judgments Act 1982 will give the English Courts and legal system jurisdiction, assuming their contracts did not state otherwise.

I am no longer a practising solicitor but shall be happy to help in the background if anyone thinks my advice might be of assistance.

The first thing to do, after banking the money, is to dig out the contract and any other written communications, emails in particular.

The second thing to do is to set out one's case to the other side and see how they react ('audi alter partem').

The third thing to do is to set out exactly what happened when from the beginning of your employment until the end, in numbered and chronological order. You will quickly forget the details and the earlier you do this the more persuasive and compelling it will be.


My telephone no. is 07813 067519 (Llandudno)

[Bonefishblues]

The former employees will all have taken legal advice as prescribed or the compensatory sum won't have been released by P&O.

[Cowsham]

P&O Ferries cannot get away with this. The 'contracts of compromise' the employees were asked to sign are unenforceable unless explained and approved by an independent lawyer: s.111 and 111A Employment Protection Act 1996. They should sign, take the money and run...to the nearest Employment Tribunal, making sure to get there within 12 weeks of 17th March.

If they were made to sign that the contract was "made at sea" when it was not, but instead made in, say Dover, the fact that they did so will not be enforceable against them and the Civil Jurisdiction and Judgments Act 1982 will give the English Courts and legal system jurisdiction, assuming their contracts did not state otherwise.

I am no longer a practising solicitor but shall be happy to help in the background if anyone thinks my advice might be of assistance.

The first thing to do, after banking the money, is to dig out the contract and any other written communications, emails in particular.

The second thing to do is to set out one's case to the other side and see how they react ('audi alter partem').

The third thing to do is to set out exactly what happened when from the beginning of your employment until the end, in numbered and chronological order. You will quickly forget the details and the earlier you do this the more persuasive and compelling it will be.


My telephone no. is 07813 067519 (Llandudno)

If it's current law -- well done for digging all that stuff out.

Does " contract made at sea " mean the contract was drawn up at and signed at sea ? Or would there be a way to link the contract to a solicitor based in the uk? Either way that contract couldn't be enforced on workers is that what you're saying there?

[PH]

1. He or she signs the agreement, which is unenforceable against him or her, and takes the money on offer;

2. Applies to an Employment Tribunal within 12 weeks of 17 March for an order that he/she was unfairly dismissed;

3. Considers an application to the High Court for simple breach of contract, as I assume there will have been provisions for a notice period which were not honoured;

4. Applies within 3. above for a declaration that theirs was a 'relational' contract within the meaning of B. P. Shipping v. Braganza [2015] UKSC 17and therefore has as implied terms a duty on both sides of honesty and fair dealing which were breached first by P&O, thereby releasing the ex-employees from further compliance

Interesting stuff, thanks for the explanations.
A question - So what happens to the payment received if it's deemed the contract invalid? Would they not have to return it?

My very limited experience with employment disputes is they can be very hollow victories, I've been involved in two, a group action and an individual one, both won, neither worth the effort. It's all very well advising these P&O ex-employees they can go to court, but if the result is likely to be a few percent more some years down the line, compared to cash in the bank now it's hard to make that case on anything other than principal. If the employees have been advised that the offer was likely to be as good as they'll get, there seems little incentive to challenge it. I think we can be pretty sure P&O's legal team will have considered this.

[Bonefishblues]

That's exactly the dynamic at play.

[Crawf0rd]

It is highly unlikely that that would happen. Compensation for redundancy is very modest, a maximum of 30 weeks' pay if I remember rightly and then only after 20 years' employment. Here there is a flagrant case of unfair dismissal when a much higher award is likely especially as there is no suggestion that any employee has done anything wrong.

There is also a case for an award of punitive damages in a Court claim, P&O having clearly decided that it can break the law so as to obtain a financial advantage:Lonrho v. Fayed.

If I were advising I would suggest taking the award and then apply to an ET for unfair dismissal. Normally there are no awards of costs, but there is a procedure allowing, in obvious cases, either party to make an interlocutory application and ask the ET to say that if the opponent continues in a hopeless defence it will be ordered to pay the applicants costs if it eventually loses. The atmosphere is such that I would be very surprised if this were to fail.

The compromise agreements (sic) are bound to fail for lack of independent advice, or ACAS involvement: s.111 and 111A Employment Protection Act 1996. The ACAS website gives greater detail. David Crawford: 07813 067519 if you want mew to elaborate.

[Bonefishblues]

As far as we know, apart from a single individual every one of the former employees has taken the necessary independent legal advice and received compensation, signing a settlement agreement. Given this, could you explain how they would be able to progress an Unfair Dismissal claim at Tribunal?

We have previously established that there's a protective award for failure to consult there for the taking, as it were, likely to be the maximum of 90 days, given the particularly egregious breach here.

Could you explain the relevance of 111a? I understand its intention is to regulate the disclosure of protected conversations prior to redundancy, and there were none here.

[Crawf0rd]

Whoops, I think I had s. 203 in mind...it's been a long day!

Employees cannot just be bounced into signing a compromise agreement precluding their rights to go to an Employment Tribunal, as these employees appear to have been. Certain quite strict formalities have to be observed (e g approval of any agreement has to begin by an independent lawyer or ACAS).

Personally I consider that, assuming the contracts of employment were not made "at sea", which I have read they were made to state, these ex-employees of P&O Ferries Limited have very significant claims to pursue. Their first port of call should perhaps be the nearest Employment Tribunal to Dover. They should do this within 12 weeks of 17 March as otherwise they will be out of time. Claims for breach of contract can be brought in the Courts for up to six years: Limitation Act 1970.

Jurisdiction will be established by the 1982 Civil Jurisdiction and Judgments Act 1982, assuming the contracts of employment do not say otherwise, or even if they do but such provision is challengeable.

I hope this helps. Dover must be reeling under the impact of all of this loss of work, quite apart from the effect of these sackings on each individual employee and his or her family.

[Bonefishblues]

Whoops, I think I had s. 203 in mind...it's been a long day!

Employees cannot just be bounced into signing a compromise agreement precluding their rights to go to an Employment Tribunal, as these employees appear to have been. Certain quite strict formalities have to be observed (e g approval of any agreement has to begin by an independent lawyer or ACAS).

Indeed, they can't be coerced, but once the Settlement Agreement has been advised on and countersigned by a qualified individual (lawyer or trade union official) then any claim of coercion by an individual falls away and the Settlement Agreement protects the employer from ET claims, with the exception of claims related to failure to consult, which cannot be settled, unless with the very specific intervention of ACAS, as provided in statute - we established all this some time ago.

That's exactly the case here in that P&O offered settlement sums very considerably in excess of statutory* and AFAIK all employees have duly signed.

*IIRC an average of £47k per individual when I did the maths.

[thirdcrank]

Out of interest, has anyone who posted on this thread been directly affected by the actions of P&O?

I thought the thread was mainly about criticism of the actions of the firm here, rather than anybody who had been sacked looking for help with compo etc.

[Crawf0rd]

Whoops, s. 207 Employment Rights Act 1996. No 'agreement' (sic) to settle a dispute following a dismissal is binding on the employee unless the formalities have been complied with ( e g has had advice from an independent lawyer, or a settlement has been negotiated via ACAS and conciliation). Unless that has happened the employees can take the money and run...to the nearest ET!

(As a matter of interest has anyone been successfully prosecuted for speeding between junctions 9-11 M20 coast bound? They tried that one out on me, but the magistrates in Chatham dismissed the case as there is a sign saying "Roadworks 2.3 miles, 2 minutes" and I was doing 59 mph. Doh! When I told the bench that this indicated I could go at over 60 mph the chairman asked me "How do you work that out?")

[Crawf0rd]

I have repeated myself, I know, I could not find my previous post.

But did the employees have the advantage of independent legal advice? If they didn't they are free to go to ET.

And yes I am making a claim as I was holed up in a hotel in Rotterdam for two days on my way back from Krakow. As I am on chemo for a serious, inoperable cancer and was running low on my medication I was beginning to get worried. What if I left my hotel, drove to Calais and still failed to cross? P&O sold me my ticket Sunday 13th March. They therefore well knew that they were selling me a useless piece of paper, but said nothing. It is not easy to find accommodation in the dark in a dockland suburb of Rotterdam when v tired after a 24 hour drive.