Compromise Agreement

[Bee77]

Hi EmployLaw/Emmzzi

 

The previous FWW was GMC, but on the letter confirmation my manager says he does not believe it was a conscious attempt at GMC but more of me making the job at hand a lot more complicated than it needed to be. The current accusation is gross negligence.

 

It's difficult to explain without giving to much away, my manager was aware of issues that were going on, he may not have been aware of what I was doing to try and repair the issues. Unfortunately the measure I took to improve the situation all seem to have mysteriously disappeared and they are unable to provide anything further.

 

To be fair I have requested a lot of information but there is no reason as to why it can't be located.

[Emmzzi]

I would discuss with your solicitor, with whom you can talk more freely. I think you'd be going on GMC. I say this only so you do not overplay a weak hand.

[Bee77]

Thanks EmployLaw

 

In a recent communication to them I have already made it clear that I think the outcome is predetermined due to conversations with them.

 

Is it worth logging a grievance at this point..? A disciplinary hearing date has been set in a couple of weeks time.

 

Thanks again for everyone's help.

[Bee77]

Thanks Emmzzi very fair point,

 

It's so difficult to know just how much info to give away or keep for a later date.

 

I have all their investigation details which was an out of date report and a meeting with myself nothing further.

 

Also the PIP they stated they would do with previous FWW didn't actually happen, he said he would arrange time for this but never did, does this make a difference.

[Emmzzi]

yes, if the current problems are a direct result of the plan not being implemented.

 

I just don't want to see you going in blazing and ending uo with nothing - it's a horrible position to be in! Hope your job hunting is in full flow too?

[Bee77]

It's the one position I do not want to be in, had I not come across this forum I'm sure I would have been on my a**e weeks ago can't thank everyone enough.

 

Job hunt is well on the way with a shiny new cv, it's amazing how industry gossip spreads though some people seem to know more than I do about my current situation.

 

New year and new starts fingers crossed I can secure something soon.

[SNALF]

Hi Emmzzi/Bee. GM is not applicable to performance or capability issues. A GM dismissal can only be fairly achieved if the employee commits an act or series of acts which go through the heart of the contract, destroy the relationship and prevent the employer from being reasonably expected to continue their relationship. None of that would apply in the case of failing to improve under a non-existent PIP. Also Bee, the FWW warning would not have been issued under GM as it defies the whole basis of it. The allegation may have been GM but if they failed to dismiss, you were still employable so GM does not apply. GM is a actually far more rare than employers seem to think and if more people challenged it as a reason for dismissal, there'd be a lot more successful ETs on behalf of the employees.

Edited January 8, 2013 by citizenB

[Emmzzi]

EmployLaw, there is general guidance on this forum about not giving advice by PM because.. well, see my signature line. OP has a solicitor already, well worth a couple of hundred quid for a meeting to help the decision making process, or a chat with the union rep.

 

On this occassion I do not think the compsny are using "performance" in the traditional "performance appraisal" sense - the word can also refer to poor performance in adhering to policies and standards, for example. You do not know how it is being used. Therefore if I don't look at the counter while serving and have left money out and a customer lifts the £5k I left there - it is poor performance, and it is also GMC, Context is everything and we do not have that here.

 

I can see you have a fiesty bent to your advice generally, but it's easy to have that when it's not your own emotions and health at stake. Go through a couple of ETs as the claimant and lose them and you'd be more reticent.

 

I am also very wary of starting any course of action that anticipates an ET in grey areas like this for the simple reason that ETs are bloody pergatory for the people going through them. Just look at all the ET threads on here.... lots of waiting, lots of gamepalying, drives you a bit bonkers, stops you getting on with your life. I would pay several thousand NOT to go through one. Which in effect is the choice a CA gives you.

 

Your user name implies you work in some sort of legal capacity which seems at odds with your advice. Care to explain more?

Edited January 8, 2013 by Emmzzi

[Emmzzi]

Well, it doesn't matter who I say I am because it's the internet... I see more of the picking up the pieces after the day in court ... losing an ET and still being with the same employer - now that is tough!

[SNALF]

Gosh yes I can imagine. Time to get your coat in that circumstance although even that's tough these days with the current job market. I only represent businesses and employers, never employees, but despite this, I do see the whole show and get a good understanding of what ETs like and don't like, although there are location vagaries strangely enough. I have never had a successful case whereby a CA was offered prior to dismissal, ETs genuinely don't like this and even though remedy is sometimes reduced, the weight is always for the employee, compounded by long service like Bee. The new bill trawling it's way through should make a big difference to CAs though if the government implement it. Less ETs for a start!

[Emmzzi]

It's probably also helpful for Bee if you give an idea of the length of time an ET takes to resolve from this point through to judgement day, and how much a solicitor to see her through might cost - for an avergae case assumning no TU support?

[SNALF]

Bit premature Emmzzi considering the stage we are at but getting the underlying message. Although it's generally a 'how long is a piece of string' situation because both parties can cause delays with paperwork back and to, especially when it comes to remedy calculations, I would generally say that most day cases are heard within 3 to 4 months of the ET accepting it, longer if the matter cannot be heard in a day, including remedy. Please take into account though that the majority of cases are settled before the hearing. Your engaged solicitor Bee, will charge you for the amount of work that needs to be done on your case and this can vary immensely. They tend to charge in 6 minute increments for reading your files, meeting with you, written correspondence and telephone calls, in addition to attendance. This is the traditional method that most apply although there are some different billing charts. You will be made aware from the start what the hourly rate is and they will document the work done.

[citizenB]

EmployLaw, there is general guidance on this forum about not giving advice by PM because.. well, see my signature line. OP has a solicitor already, well worth a couple of hundred quid for a meeting to help the decision making process, or a chat with the union rep.

 

 

Indeed this is correct and as you say, Employlaw, you are not new to CAG therefore you are aware of this!

[Bee77]

Within my COE under the GMC explanation it includes gross negligence.

 

Not including the last 2 issues my personnel record has been impressively clean.

 

ET scares the bejesus out of me but if forced obviously I would tread very carefully. Would be quite happy to walk away with a reference and fair payout can't honestly see how I could ever be expected to work with these people again I have neither respect or trust in them.

[citizenB]

Employlaw - I have sent you a private message, which you should receive and be able to respond to. If not, would you please use

 

[email protected] (no spaces)

 

Use the reference citizenB in the subject line

Edited January 8, 2013 by citizenB

[cobbler1]

Hi Bee77, I have been through a similar situation, ET's are notoriously difficult to win unless you have a watertight case against your employer. Your employer only has to have a minimal amount of evidence for GMC. You would have to go through the whole disciplinary process and appeal before you can approach completing an ET1. This takes time, effort and a great deal of anxiety. Employment tribunal payouts (if successful) are relatively small and are reduced by culpability and their solicitors will use any legal challenge they can.

My advice is to negotiate the CA to a sensible point, bearing in mind that there is a cost to defending a claim through an ET and to be honest 3 months salary with a reference is more than you would get at tribunal.... the reference is the golden ticket.

[Bee77]

That's the plan but as per similar stories employers arnt alway a pleasure to deal with!

 

The things I have discovered over the last few weeks have made me realise just how bad they are, maybe a blessing in disguise!

 

Will update if any progress.

[Bee77]

Hello all,

 

Little update, they have again refused the offer but made a slightly higher counter offer but removed other benefits previously included which doesn't make the offer any better.

 

They have also said that 2 other managers (not my direct manager) have mixed views, one wants to go forward with CA and the other wants to go forward with meeting.

 

They said it is the last offer and was full and final again and will not negotiate further still no mention of unpaid holidays or notice. They won't answer this question so I've asked them again.

 

I have again asked for the same information to defend myself should meet go ahead and they have again thought of another way to say no! Not received Job desc following request but I think this may be because I don't actually have one.

 

They seem to be politely bullying me into a corner, they deny predetermined outcome but it seems pretty obvious to everyone else.

 

The saga continues!!!

[transient]

What are the benefits they are removing?

 

You need to get clarification if the notice and holidays are in addition to the CA. I would ask them again and if you are happy to go to ET then I would say if you get no response then you are happy for the disciplinary to go ahead.

 

Are they are public or private company and how big in size?

[Bee77]

Morning transient,

 

I'm preparing for the disciplinary regardless of what happens now, but they are being difficult in releasing documents to me, you should see the state of my personnel file it's quite shocking.

 

They are removing a company car usage clause and some kind of placement process to help me rejoin to working world, the job centre have offered me this part free of charge so not really bothered about that.

 

The company is a world wide private company, they really are huge with many fingers in many pies! Which might explain why they seem to believe they are so untouchable. My manager really does believe he is above employment law...

[transient]

Morning transient,

 

I'm preparing for the disciplinary regardless of what happens now, but they are being difficult in releasing documents to me, you should see the state of my personnel file it's quite shocking.

 

They are removing a company car usage clause and some kind of placement process to help me rejoin to working world, the job centre have offered me this part free of charge so not really bothered about that.

 

The company is a world wide private company, they really are huge with many fingers in many pies! Which might explain why they seem to believe they are so untouchable. My manager really does believe he is above employment law...

In being obstructive of the information are they just not providing or stringing it out? Have they even responded to your request? Have you made a SAR request?

[Bee77]

They are prob just stringing it out, I imagine to give me as little chance as possible to defend myself.

 

Had to use the data protection act to get personnel file but unsure of what a SAR is, excuse my ignorance, you explain what this is?

 

They do respond to my requests but they just waffle on without actually answering any questions.

 

Thanks for your help transient.

[transient]

They are prob just stringing it out, I imagine to give me as little chance as possible to defend myself.

 

Had to use the data protection act to get personnel file but unsure of what a SAR is, excuse my ignorance, you explain what this is?

 

They do respond to my requests but they just waffle on without actually answering any questions.

 

Thanks for your help transient.

A SAR is a subject access request complete information can be found HERE

 

If they list a date for a disciplinary I would ask for an adjournment until such time you have this information, by them not providing it for you to defend yourself an ET would not look favourably IMHO and could further your case they are managing you out

[Bee77]

Thanks very much transient,

 

I will have a look at this, my witness can't attend on the date they have provided so considering an adjournment request.

 

Would like to be able to trust my witness and not opt for a random standin.

 

I get the feeling that all info I have requested from colleagues is being vetted by HR and from what I can tell this is when the actual info requested is being removed and some cock n' bull story provided. I also believe they have asked staff not to provide witness statements for me to but I can't prove this.

[cobbler1]

Hi Bee77,

This whole scenario is very unusual:

Firstly to offer a CA before a disciplinary, and on that note they already seem to be setting you up for dismissal before any hearings.

Secondly they are messing about with the CA and not being transparent in their actions.

It appears to me they either don't understand (probable) the nuances of their actions or indeed your rights in this matter.

The fact that a CA can't be agreed at this stage when offered wouldn't sit comfortably with an ET.

Can I suggest that you contact ACAS conciliators, they give free advice and may be able to help with the CA.