Compromise Agreement

[Bee77]

Hi there,

 

First time forum user so apologies if this is in the wrong place.

 

My employer has given me reason to believe that the outcome of a forthcoming discliplinary will be dismissal. It has been mentioned that they would prefer to go down the compromise agreement route.

 

I have no idea what this would include but understand that it would mean signing away my employment rights of any potential claims.

 

I should say that my employer have not exactly been very helpful and have refused to provide me with requested information to defend myself in any formal hearing. I have been with the company for more than 15 years and both myself and other employment help sources believe i wouls have a strong case if went to an ET.

 

Could someone point me in the right direction or forum please

[Sidewinder]

Thread moved to the employment forum

[Bee77]

Thanks very much, I think I have figured it out now!

[Sidewinder]

Hi

 

I think in order to give appropriate advice it may be necessary to learn a little more about the precise nature of the dispute with the employer. Obviously without disclosing indentifiable details, could you give us an outline of the problem?

 

In general terms you are correct in that a CA would waive any right to make a claim to an Employment Tribunal in return for a mutually agreed reference and certain other considerations, such as pay in lieu of notice etc. As to whether this would be preferable to being dismissed and taking a case to an ET that would depend on the circumstances and likelihood of success. A 'winnable' case will often not result in a greater payout, particularly if the Tribunal concludes that the employee contributed to their own downfall through their own actions, for example.

[Bee77]

Thanks again, understood.

 

Currently i have a final written warning on my record for a previous alleged act of gross misconduct, although i thought the final written warning was harsh, the letter confirming the action did state that they did not believe i intentially commited gross misconduct but the result was of my own doing. I chose not to appeal the decision as being the area/branch manager it would have meant putting all my staff through the whole process again which would have highlighted many lies told and would push moral through the floor.

 

This was back in august, a performance plan was to be arranged between myself and my manager and would be reviewed. I have heard nothing from my manager in relation to training or support to succeed in my role.

 

A few weeks ago I attended a meeting with an accounts team to discuss normal financial and budget issues for next year, at the end of the meeting when everyone had left except my manager and me, i was asked to resign, look at other potential roles or face disciplinary action but regardless I would not be allowed to maintain my current role.

 

Without giving to much away I am currently working my way through the disciplinary process, and now facing the tough decision of how to handle this route. My employers are being quite difficult and as mentioned previously not provided me with details I have requested to defend myself. I believe this is because they already know the outcome they want from this and i will be dismissed regardless of what evidence i do have.

 

They have said the CA is their preferred choice but no disciplinary has been heard, so I dont understand why this would be a preferred choice...

[dmlferguson]

Its there prefered choice because they intend on managing you out of the business. If you believe you have a case and have the money to hold you over for the next 6-9 months then this may be the best way to go BUT if you can leave with a good reference and a pay out that you are comfortable with...this may be the best route.

 

Perhaps you could discuss the type of figure they plan to offer you before you make any further decisions. Any payout at ET may be increased if they fail to provide you with the information you need to defend your disciplinary.

[Bee77]

Thanks very much,

 

All seems to be very shady, especially the way they are wording their emails (never quite admitting anything)

 

Would you wait until a disciplinary hearing to mention details surrounging a CA or should I try and speak to them prior to the meeting?

 

All has been delayed at the moment due to various reasons, not sure if any meeting would be arranged before of after christmas. I imagine they would want a resolve before year end.

 

Thanks again for all the sound advice.

[Emmzzi]

I wouldn't let it get as far as a disciplinary as at that stage, with a written warning which you did not appeal therefore accepted (in the eyes of the law), you'll be going with nothing.

 

ask for an informal discussion and see what is on the table. You get to think about it and need to see a solicitor before signing anyway.

[Bee77]

Hello everyone,

 

Seasons greetings, hope everyone has enjoyed some well deserved time off!

 

Quick update,

 

An offer has been made, however the amount is not something I'm happy to accept (quite insulting after 15 + years service) how do I politely reject the offer?

 

Do I need to quote any legislation or just simply tell them to revise their offer?

 

Many thanks for everyone's time, certainly makes this whole situation a lot easier to deal with

[becky2585]

What was the offer?

 

It would probably help if you put forward a counter offer so they know what you're actually looking for. Ballpark figure - 6 months pay is what you're likely to get if you claim unfair dismissal, plus notice pay, so that's a guideline amount.

[Emmzzi]

if the offer is around 6 months pay tax free and the alternative is sacking I'd bite their hand off. Am I in the ballpark?

 

You can say no. Then you'll be going with a lot less. How certain is it you would be dismissed do you think?

[Bee77]

Hi there Becky/Emzzi,

 

The offer is around 3 months gross, to be honest the company would much rather pay out than head to a ET. They have already said this is their preferred option which just confirms any outcome from a disciplinary is likely to be dismissal.

 

After the length of service and amount of evidence I have requested which they have refused to provide I'm fairly confident I could defend myself but don't think they will give me the chance.

 

I would much rather settle with a CA but being no spring chicken and in a fairly small industry I would be happier with 6 to 9 months gross pay plus notice and holidays. This may change depending on what a solicitor says...

 

Thanks again.

[Emmzzi]

with a final written warning on file 3 months is "not bad." 9, damn near impossible. See what your union rep/ solicitor says but if you can get them up a wee it and an agreed reference I'd take it.

[Bee77]

All the other parts of the CA seem fair but I haven't actually seen any formal offer yet,

 

Ill update again later once I have legal update.

 

Thanks again

[Emmzzi]

good luck!

[Pusillanimous]

If you are not happy with it, you must tell them you cannot accept it. However, you need to be realistic.

[Bee77]

Hi all,

 

Once again thank you for all your help.

 

Solicitor app went well, they didn't seem to think there would be any harm in asking for and higher settlement. And confirmed a few errors my employers have made in their correspondence with me.

 

The first offer was quite insulting after my length of service and the time and effort I have given them. And they also couldn't provide a breakdown or the reasons on

How they came to this figure. It roughly worked out at 3 months gross which wouldn't be that much less than being paid normal notice plus holidays and bonus.

 

We plan on sending counter offer and hope we can at least negotiate closer to something I'm more likely to accept, the thought of ET stresses

Seem very daunting.

[SNALF]

Hello Bee. The notice pay would be on top of the CA offer, so the three months is extra and they still need to pay you accrued holidays, you might not get the bonus depending on what the contractual agreement is with this. Are you suspended at the moment or still working?

[Bee77]

Hi EmployLaw,

 

Still suspended at the moment.

 

The offer that was made states that it is full and final, this includes notice and holidays but not any expenses, not quite sure how they have worked this out as they couldn't even confirmed how many holidays I had accrued to be paid..... Just seems like a random number they thought I might go for, but the amount is not far of 3 months so it seems its just the notice.

 

They have as expected rejected my offer but not made a counter offer...

 

I have responded to ask for further clarification and requested further details for the disciplinary. Will await their response.

 

Thanks again.

[SNALF]

Hi Bee. Thanks for confirming. You are entitled to 12 weeks statutory notice. If they do dismiss you as a result of the warnings process (i.e. not gross misconduct but because you were already on a final written) they still have to pay you the notice, so you are no worse off. However, I am quite familiar with compromise agreements and it is unusual for them to not have a separate section to pay the statutory notice and holiday and the figure quoted should just be the pay off. Notice and holidays are taxable, severance pay is not so the figures should be separated on the agreements. If three months pay is the total offer including what you are already entitled to, tell them to go away. Otherwise, why sign away your rights to receive something that you are fully entitled to anyway? Incidentally, compromise agreements are quite dangerous for employers if they are refused. Have they communicated their offers 'without prejudice'? Many rejected compromise agreements have won a successful claim for unfair dismissal as they clearly show the intent of the employer was to get rid so if they then dismiss you following a disciplinary, you can indicate a pre-determined outcome. Now that the CA is on the table, they need to get it through successfully or you will have a very strong case if they sack you. Get your solicitor to point this out in so many words and they need to increase the offer or rejection by you could be costly for them.Just double check that the offer is not in addition to statutory rights, i.e. notice and annual leave.

[Bee77]

Wow thanks very much EmployLaw I wasn't aware of the rejection issues surrounding a CA.

 

Gives me a bit more confidence in the whole thing, I think they are hoping I will just see the money and snatch their hands of .

 

All written communication has been without prejudice however in a phone call with HR they stated in conversation this was their preferred option. I'm sure if it ever came to it they would simply deny all knowledge and delete their tracks though. Unsure of how much of a difference this makes, my boss has already told me that I would not be returning to my role but he seems to have taken a step back from all this and is not due to be part of a disciplinary hearing.

 

Any thoughts??

[SNALF]

Hehe they're stitching themselves up. Although they could deny the conversations. I'd advise getting a communication to them, either directly or via your solicitor, pointing out the conversations and stating very clearly that they are obviously intending to get rid. Keep a diary and any phone call lists if you have them to show the 'off the record.' conversations did happen. State that the disciplinary would be automatically unfair due to the fact that they have already practically told you the outcome. Point out that you are entitled to 12 weeks notice plus holidays, so there is no compensation in the CA for you to work with. State that you are prepared to allow the dismissal under disciplinary and then make an immediate claim as the CA is worthless to you as the figure in it is your statutory entitlement anyway. The longer you drag it out, the more pay you will get whilst suspended too and your holidays are still accruing. I'm happy to assist in calculating your holidays if you know what you were entitled to contractually and what you have already taken so far? I need to know entitlement, when the holiday year runs from and to (i.e Apr to March or Jan to Dec) hours you work each week and over how many days.

[Emmzzi]

you are aware that no notice is payable for gross misconduct dismissals? I am not sure of the fine detail of your case but if your current warning is GMC...?

[SNALF]

No I don't believe it is a summary dismissal Emmzzi from the earlier threads, it's performance related but considered for termination due to being a a current FWW.

[Emmzzi]

there was a performance plan related to the GMC which does not appear to have been met. I'm just advising against being gung ho when we are unclear. 3 months and a reference may be rubbish or it may in fact be a damn good deal. I don't think we have enough evidence to say. I would urge caution in your advice.