Compromise Agreement? Urgent

[elpulpo]

I've been involved in a dispute with my employer, I submitted a grievance claiming they were gulity of Discibility Discrimination after I was demoted.

The matter progressed through a grievance hearing, which was rejected, and then this morning I had the grievance appeal hearing, with a director of the company who is also a solicitor.

A good old legal argument ensued (3 full hours), with him trying to subject me to hostile cross-examination and me reminding him that he was supposed to be giving impartial consideration to my grievance. I was well prepared and thought I put across my point well.

At the end of the hearing, he asked the person who was taking notes to leave, and then said that he wished to have a 'without prejudice chat'. He asked me what I was after, to which I replied I could see 3 scenarios -

1) They back down and reinstate me

2) They offer me a compromise agreement

3) I make an application to Employment Tribunal

 

Later today he phoned me and we arranged to meet at a local pub. He stated that the company wished to come to a compromise agreement with me. He put forward a figure, and after some haggling we reached a figure that I certainly would be happy with. I stated that my understanding was that there was a protocol by which the employer/employee went about making a CA. My understanding is that in this situation, I instruct a solicitor, and they then negociate the terms of the agreement with the employer, and for a CA to be legally binding this must be followed. He replied that the company wished to dispense with this. He then stated that the offer of the CA was only open until midnight Sunday, and that I should contact him by phone or email to confirm my agreement.

 

So, my question, do you think I should proceed, and send him an email confirming what we discussed and agree, or should I insist that the conventional protocol of my being allowed to consult a solicitor first be followed?

Do you think I'm walking into a trap?

[Sidewinder]

As you will be aware, the CA can only become legally binding if you are properly advised by a qualified legal advisor. You will normally be waiving any right to take legal action against the employer, there will be an agreement over references and over the amount of compensation (which as 'damages' in lieu of legal action will normally be tax free).

 

I have very little experience of CAs personally, so cannot offer advice on whether you should proceed. I suppose it is very much a matter of 'trust'.

[papasmurf1cx]

Are you legally trained? It does seem a rather unequal position and I would be rather wary of doing things that you are being 'forced' into doing. Normally employers WANT other parties to be legally represented and actually pay for it so that the niceities of the law are adhered to. Alternatively I believe ACAS offer a service where agreements are made that conform with the law and then those agreements are enforceable in law. So for him to not want to do it that way is very odd as it would actually protect the employer.

 

My wife and I have recently been this route and she had to sign a CA. You could PM me if you have any queries. That was a matter of Disability Discrimination too. You may want to guage the money perhaps??

[elpulpo]

I'm not legally trained, no. Just the veteran of a lot of disability litigation. It does seem strange that they don't want to go down the formal route. Can't see what they're looking to gain. that's what makes me suspicious.

If I wanted to be underhand, surely I could take the money but then take legal action anyway?

[Helford]

I went down the route of a CA a year or so ago, my former employer paid the 'lion's share' of MY Solicitors Invoice. A Solicitor is obligatory. A copy of my future reference was agreed and put on file for use when required. The CA can just about absolve the former employer of just about every future claim possible!

 

Interesting link here:-

 

http://www.personneltoday.com/articles/2006/11/07/38032/compromise-agreements.html

[papasmurf1cx]

elpulpo...... you must know your stuff. It makes me think he is trying to have you over in some way. Solicitors always want clarity in writing. Why don't you write to him comfirming the conversation and detailing why you think he is not protecting the firm by not signing a CA?

[mariefab]

My understanding of the way in which CAs work is that:

The haggling is done between the employer and employee, or their representatives.

Then the employer's solicitor draws up the agreement and sends it to the employee.

The employee has legal advice an the agreement and if happy signs.

 

http://www.opsi.gov.uk/acts/acts1996/ukpga_19960018_en_18#pt13-ch2-pb2-l1g203

 

The arrangement that has been suggested to you seems risky for your employer because if you don't have legal advice on the agreement I don't think that you can be held to it's terms.

The only way that I can think of that this could be to your disadvantage is if it's a tactic to delay matters until it's too late for you to start a Tribunal claim.

But that seems unlikely. After all he couldn't have spent over 3 hours in your company without realising that you're an unlikely candidate to be caught out by such a ploy.

 

Maybe your employer just wants this done and dusted and the solicitor is simply inexperienced with CAs and so doesn't realise that by not ensuring that you have legal advice he's failing to protect his client's interests.

You could make your response brief.

Perhaps something like, 'I'm agreeable, write it up and send it to me.'

If you're at all suspicious about anything in the CA when you receive it, that's the time for further advice.

[elpulpo]

My understanding of the way in which CAs work is that:

The haggling is done between the employer and employee, or their representatives.

Then the employer's solicitor draws up the agreement and sends it to the employee.

The employee has legal advice an the agreement and if happy signs.

 

http://www.opsi.gov.uk/acts/acts1996/ukpga_19960018_en_18#pt13-ch2-pb2-l1g203

 

The arrangement that has been suggested to you seems risky for your employer because if you don't have legal advice on the agreement I don't think that you can be held to it's terms.

The only way that I can think of that this could be to your disadvantage is if it's a tactic to delay matters until it's too late for you to start a Tribunal claim.

But that seems unlikely. After all he couldn't have spent over 3 hours in your company without realising that you're an unlikely candidate to be caught out by such a ploy.

 

Maybe your employer just wants this done and dusted and the solicitor is simply inexperienced with CAs and so doesn't realise that by not ensuring that you have legal advice he's failing to protect his client's interests.

You could make your response brief.

Perhaps something like, 'I'm agreeable, write it up and send it to me.'

If you're at all suspicious about anything in the CA when you receive it, that's the time for further advice.

Probably a good way to proceed. I think I can squeeze a bit more out of them yet.

I've got until the first week in October to make an application to ET, so there's still time.

[JonCris]

As you will be aware, the CA can only become legally binding if you are properly advised by a qualified legal advisor. You will normally be waiving any right to take legal action against the employer, there will be an agreement over references and over the amount of compensation (which as 'damages' in lieu of legal action will normally be tax free).

 

I have very little experience of CAs personally, so cannot offer advice on whether you should proceed. I suppose it is very much a matter of 'trust'.

 

Sidewinder is correct You must be allowed to consult with suitably qualified independent lawyer & your firm must pay for it as without that the CA is unenforceable.

 

Now it may be that this could be to your advantage in that if later you wish to sue then you can argue that you signed without benefit of counsel as is required in the matter of a CA. Also the fact that the guy is a solicitor & should know better will also work in your favour as any court will assume that he has misled you in getting to sign without benefit of legal advice. My advice is sign take the money & then decide if you want to pursue them for more. Incidentally if they do give you a bad reference & because you didn't get any legal advice you will still be able to sue for defamation in the civil courts AND any other losses which you might incur.

 

Just make sure if you do sign that your not signing that you have received independent advice Just say your going to delete any such passage cos you didn't get advice but whatever you do don't let on you know what your doing act dumb

 

Methinks the solicitor could be hung on his own petard by trying to be to clever by half

[elpulpo]

This is what I'm inclined to think, JonCris. It just all seems a bit fishy. This guy is almost certainly a legal professional, given the way he was trying to pull apart my argument in the hearing, but at the same time he just doesn't seem to know what he's doing with regard to the way he proposed the CA. For example, he seemed to have overlooked the accrued holiday pay aspect (another £1k), unless he thought that I wouldn't be aware that I was entitled to it.

I just can't imagine that of the 6 directors (and they're a successful bunch, one's the main guy behind 'lunarpork' greeting cards?), who are evidently all discussing the matter, none would be aware of the protocol involved in this situation. What are they looking to gain? It can't just be that they're looking to save a couple of hundred on my solicitors fees.

Come to think of it though, a couple of months ago they sacked a guy, but gave him 4 weeks money and relocation costs back to London, when they had no reason to do so. That seemed odd, as they'd more than adequete grounds for just summarily dismissing him. Maybe they're just daft and I'm overestimating them.

 

I'm not unreasonable, and if I get what I want from them, then I'll go away. Just a hypothetical though - if they went through with the invalid CA, and then I went to ET anyway, could they argue that the money they'd given me be deducted from any ET award? Or do you think the ET would say 'tough, it's your own stupid fault for handing out cash'?

[honeybee13]

Hello Pulpo. I don't have anything to add to the great advice you've had, just popped by to say I'm sorry you've ended up needing advice on the forum. But after all the help you've given other people, it's good to see caggers getting stuck in on your behalf. Fingers crossed for a good outcome.

 

HB x

[elpulpo]

Thank ya, HBx

[JonCris]

Are you saying that your only assuming the guy is a solicitor & that you don't know for certain cos if you are that would explain a lot. If he's not a qualified person then any CA he draws up will be worthless.

 

Also its important to understand that you ARE signing a CA & not some other sort of agreement/contract which could be binding on you.

 

The term 'Compromise Agreement' must appear prominently in the docs usually in the heading

Edited September 4, 2010 by JonCris

[elpulpo]

He told me at the outset of the grievance appeal meeting that he was a director of the company and that he is a solicitor. He certainly seemed quite skilled at cross-examination, by the way he kept trying to lead me into contradicting my own arguments and statements.

Surely though, even if he is a solicitor, as a director of the company he wouldn't be able to draw up a legal CA for this situation? Shouldn't it be done by an independant solicitor acting on my behalf?

And I thought that only a CA could be used to resolve such situations as these? Any other type of agreement wouldn't be valid.

[honeybee13]

Hi Elpulpo.

 

For what it's worth, my OH and I think this guy has a conflict of interest. Yes, you should be able to have an independent solicitor acting for you [and paid or mostly paid by your employer] acting for you. Don't lose heart at this stage - the deadline thing is because they have something to hide/lose. You're worth more than that.

 

We're sure [although we can't quote you chapter and verse] that you have the right to time to consider any documentation. I hope others on the forum will continue to comment.

 

HB x

[elpulpo]

Oh it's not a worry, HB. Just all seems odd, and I wondered if they're up to something and I haven't realised.

I'm going to email him tomorrow and set out exactly what I want, then just see what happens.

[JonCris]

He told me at the outset of the grievance appeal meeting that he was a director of the company and that he is a solicitor. He certainly seemed quite skilled at cross-examination, by the way he kept trying to lead me into contradicting my own arguments and statements.

Surely though, even if he is a solicitor, as a director of the company he wouldn't be able to draw up a legal CA for this situation? Shouldn't it be done by an independant solicitor acting on my behalf?

And I thought that only a CA could be used to resolve such situations as these? Any other type of agreement wouldn't be valid.

 

In that case the guy will be stuffed should you sign now & later change your mind to sue AND no they don't need to have the CA drawn up by a qualified lawyer, they can do it themselves. As has been stated where they are falling down is not insisting & paying for YOU to access independent legal advice

 

ALSO no any type of agreement can be entered into The difference is that a CA is meant to be confidential and full & final barring ANY future claims BUT if the correct process is NOT fulfilled then a court would almost certainly find it invalid

[elpulpo]

As you say, my understanding is that the CA isn't valid unless I recieve independant advice upon it.

[elpulpo]

So, an update. I emailed the director stating what I would be willing to receive, about 10% more than they had offered me. He's replied that their offer was ex gratia and not negotiable, and therefore he takes my counter offer as a rejection.

Goes on to say he'll forward the decision of my appeal in due course.

Bit of a surprise. I thought they'd snatch my hand off.

So, what to do next? I'd like to try and settle this. I think I'd win at ET, but it's a bloody long drawn out affair. I've already secured alternative work, and I just want to leave. Any thoughts?

[papasmurf1cx]

How about calling their bluff and issuing proceedings? You could follow it up with a without prejudice letter stating that you are willing to settle but the terms would need to be negotiated. if proceedings are issued they then have the problem of getting rid of them and that means money. The fact that they want a CA and you issue proceedings gives them a big headache, they are the ones that want secrecy not you.

[JonCris]

So, an update. I emailed the director stating what I would be willing to receive, about 10% more than they had offered me. He's replied that their offer was ex gratia and not negotiable, and therefore he takes my counter offer as a rejection.

Goes on to say he'll forward the decision of my appeal in due course.

Bit of a surprise. I thought they'd snatch my hand off.

So, what to do next? I'd like to try and settle this. I think I'd win at ET, but it's a bloody long drawn out affair. I've already secured alternative work, and I just want to leave. Any thoughts?

 

 

I would go back & say OK you win than you can decide what you want to do later as the CA ain't worth the paper its written on anyway

[elpulpo]

Aye, that's what I'm thinking. Just that pride's getting in the way at the moment.

I don't like to haggle and lose. Jewish mother, Yorkshire father.

[082stewie]

Hi Elpulpo,

 

My 2cents worth, I went through the same thing about a year ago. We sat at the table for 4 hours until we had a "off the record" discussion.

 

They were trying to pull it on under the guise of redundancy but I knew it was just a conflict of personality between me and the new CEO. He just wanted me gone.

 

I got everything I asked for built into a Ex gracia payment.

But here is the kicker, as a once off exceptional payment the company does not have to declare this and you dont pay any tax on it. Everything was thrown into it, leave , notice period and a few months extra salary tax free. It ended up being about 6 months salary. Including a sterling ref.

 

I took the paperwork to a solicitor and they were not keen on the idea of not declaring the payment and not paying tax and NI on it. I took onboard the advice and proceeded. This was a top firm. They were to protective over thier reputation rather than my best interests, and survival in the hight of a recession.

 

I got another job about month later and banked the rest.

 

Something to consider, ask your ex- employer for the ex-gracia to be a tax free exceptional payment.

 

Just my 2 cents.

 

Ps: Correct me if I am wrong, but arnt payments under 35k tax free? If its less, then thats something to consider.

[JonCris]

Hi Elpulpo,

 

My 2cents worth, I went through the same thing about a year ago. We sat at the table for 4 hours until we had a "off the record" discussion.

 

They were trying to pull it on under the guise of redundancy but I knew it was just a conflict of personality between me and the new CEO. He just wanted me gone.

 

I got everything I asked for built into a Ex gracia payment.

But here is the kicker, as a once off exceptional payment the company does not have to declare this and you dont pay any tax on it. Everything was thrown into it, leave , notice period and a few months extra salary tax free. It ended up being about 6 months salary. Including a sterling ref.

 

I took the paperwork to a solicitor and they were not keen on the idea of not declaring the payment and not paying tax and NI on it. I took onboard the advice and proceeded. This was a top firm. They were to protective over thier reputation rather than my best interests, and survival in the hight of a recession.

 

I got another job about month later and banked the rest.

 

Something to consider, ask your ex- employer for the ex-gracia to be a tax free exceptional payment.

 

Just my 2 cents.

 

Ps: Correct me if I am wrong, but arnt payments under 35k tax free? If its less, then thats something to consider.

 

Sorry mate but the solicitors were quite right to be concerned because what you wanted them to do was & is illegal & they risk upto 14 years imprisonment for being party to money laundering

 

Your lucky they didn't report you

[papasmurf1cx]

Surely it depends on what the money has been allocated towards. If it was Personal Injury Payment and / or Injury to Feelings then deductions would not be applicable? Each case on its merits surely.