NEGOTIATION SGS5

                PLAN FOR CLAIMANT – Catpain BRASSBOUND


   1.   Show D wrongly ended contract
   2.   Get D to agree to damages HIT TOP LINE IF POSSIBLE
   3.   Avoid court if damages adequate REF BOTTOM LINE
   4.   Family to support i.e. mortgage and school fees
   5.   Get Undershaft to agree to not enforce clauses 5 and 6 of
        employment contract

Mutual interests

   1. C and D both keen to settle OUTSIDE of court


   1.   Original contract of employment was for 10 years
   2.   Contract terminated with no notice – letter of 30th Nov 2006
   3.   No notice term in contract
   4.   Undershaft happy with Brassbound’s performance
   5.   Undershaft have effectively admitted a breach of contract: have
        offered Brassbound a payment in line with clause 7 of contract.


   1. Clause 7 of contract, very generous
   2. Employer has a reserved right to make an employee redundant
   3. Brassbound has got another offer but cannot take it up due to
      restrictive covenants

Legal strengths

   1. No express term given for period of notice – see Halsburys Vol 16(2)
      para 93 and ERA 1996 s1 / Tolleys Employment Service (TES) C7008 –
      current contract could fall foul of ERA
   2. No notice of termination given : argue seniority of position,
      renumeration and age of Brassbound to increase the notice period
      implied by the court – could be as high as 6 to 12 months – TES W8015
      and this would be subject to uplift of approximately 20%
   3. Brassbound has been wrongfully dismissed – s94 ERA 1996 / TES
   4. Claim for benefit of car – TES W8025; Shove v Downs Surgical plc
      [1984] ICR 532 (Based on AA assessment)
   5. Undershaft cannot enforce the restrictive covenants as contract
      ended unlawfully – TES C7054 and Rock Refrigeration Limited v
      Jones and another [1996] IRLR 675.
Legal Weaknesses

   1. Clause 7 is NOT a penalty clause, may be generous but not
      extravagant - Murray v Leisureplay plc [2005] EWCA Civ 963
   2. Amount of statutory notice is only ONE WEEK TES C7008
   3. Amount of damages sought is extremely weak – test is to put the
      employee in the position he would have been in the contract had
      been properly performed - £ yearly salary * amount of notice period =
      LOW AMOUNT (approximately £2500 before any uplift)

Information sought/to be disclosed

Is D in a position to re-employ C, on same terms?
Why did they not give notice?
Was a supplemental statement given along with the contract?
What are their legal costs?


Opening:            12 months salary - £60,000
                    Uplift of 20% - £12,000
                    Amount for use of car – £2,500
                    No enforcement of clauses 5 and 6
                    Avoid court – protracted, expensive

Target:             9 months salary - £45,000
                    Uplift of 20% - £9,000
                    Amount for use of car - £2,000
                    No enforcement of clauses 5 and 6
                    No court

Bottom Line:        6 months salary - £30,000
                    Uplift of 10% - £3,000
                    No amount for car
                    No enforcement of clauses 5 and 6
                    No court


           1. Will drop court action if settlement reasonably advantageous
           2. Will not pursue damages for use of car
           3. Will drop the uplift

Strategy and Tactics

C wants to settle but only if settlement to C’s advantage, damages sought in
the region of £74,500, wants to be able to keep opportunity of good
reference, need to adapt win/lose, do not reveal the job with Wonder
Weapons, need to be slightly heavy, as BATNA (legal position if goes to trial)
strong BUT damages are weak.

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