Settlement Proposal - Help please

[DickyRobbo44]

Ok sorry if this is long winded I will try to keep it brief. I've been in my position of Project Engineer for 2 years. My project in that time has been a nightmare but thats plainly down to outside sources effecting it.

 

I have literally just solved the issue which has been tormenting everyone and yesterday received a letter summoning me to discuss various aspects. A HR advisor was present and I was told I could bring a representative etc.

 

Now I have been unhappy in this job for at least a year, after hearing this discipline procedure I immediately felt like quitting but thought better of it.

 

I had the meeting today where my manager and director discussed the points. I wasn't given any evidence on the points they made, and the issues were very minute compared to other engineers errors. I feel very singled out, my former manager is very much best mates with the engineers and me having a young child and commuting left me ostracised from the close knit group.

 

I don't feel the dismissal I received was justified what so ever, no only that, I put my case across to only be handed a letter already printed out stating settlement terms. Surely this goes against the procedure to already have a decision without obtaining the facts?

 

I do not want to return, I have been placed on garden leave but can I negotiate the terms? I have a young son and partner to support so dont want to entirely jeopardize the current offer which they obviously told me was generous. I have been offered;

 

£930 tax free (assuming this is the statutory amount)

Pay in lieu of notice period of 1 months pay

Payment for outstanding holidays

An agreed reference

Outplacement support

£250 towards legal fee's

 

Does this seem fair? I figure I could last 3 months before running into financial difficulty. Thanks for any advice.

[ericsbrother]

You are entirely free to negotiate a severence or compromise agreement as this is what they are offering you with the threat of dismissal to make you accept.

The procedure for disissal doesnt appear to have been followed so you can just sit tight and force them to use their threat of dismissal and take them to a tribunal. This will undoubtedly cost them a damn sight more even if you dont win anything more than a couple of weeks wages for the wrong procedures but you need to weigh this against the absolute s*** that you will be put through in an attempt to see off your claim.

You say you have a young family so I am guessing that finances may also be a reason for not going for the long haul.

You mention £930 being a settlemet offer. This should reflect some semblance of either a multiple of your earnings such as 2 weeks pay so they are considering the money to be a voluntary redundancy settlement which muddies the waters even further.

I would first use the grievance procedures that the company has to appeal against dismissal as dismissal without notice is normally reserved for very serious offences involving criminality or gross dereliction of duty. Again, they wont like this but once you have given this letter (an appeal is an absolute right) you then have a bit more leverage to get more out of the current offer.

I would be looking at 4 weeks pay plus notice period and any holiday due as pay. The legal fees they are offering would only be there is they see this as a compromise agreement and that will prevent you from discussing the reasons and mechanics of leaving their employ with anyone. Again, not necessarily a bad thing as you can always tell a prospective employer that the reason for leaving was voluntary redundancy and it wouldnt be untrue as far as the process is concerned.

Dont forget though, you currently have one over them for the dismissal process they have used so far is unlawful (and probably unfair according to your contract) so dont be afraid to let them know that you know this if they want to bat away your counteroffer.

[DickyRobbo44]

Just to make things clearer, the £930 is the minimum redundancy pay, 2 years so 2 weeks worth of pay. They are offering a months pay on top of that and holiday pay etc. I'm just wondering if this is reasonable?

 

I know their process wasn't correctly followed and to be dismissed for a few minute mistakes is ridiculous. Another engineer made a mistake that is costing £100,000's in a product recall but no action has been taken upon him. I'm just not part of the tight knit group.

 

So with all that in mind you would appeal against the decision? I'm very worried that I will have to go through a long process and have no money in the meantime.

 

Is it worth using the legal fees to contact a solicitor to deal with this? Im due a months notice (as per contract) but this agreement ends my employment on 24th Oct. I'm now currently on garden leave.

[DickyRobbo44]

So how to I approach this? The HR lady is going to ring me Tuesday to discuss my thoughts. Shall I verbally this over the phone? The extra months pay they so generously gave me I'm sure is to make up for the months notice my contract requires me to have unless gross misconduct was in place. I would be happy to accept the original offer with an additional months pay. Should I consult a solicitor to do this for me?

[Emmzzi]

£250 will get a lawyer to look at the agreement and explain what it means. That's not enough for them to offer an opinion or get you more. But it's a requirement of all settlment agreements that you see a lawyer.

[DickyRobbo44]

Ok so shall I verbally produce a counter offer over the phone or send it in writing? I have until the 24th, if my counter offer is declined can I still take the original offer which I have in writing?

[ericsbrother]

If they are phoning you on tuesday then say that this is what you consider reasonable then put it to her the 2x statutory or whatever else you think is. there is no obligation for them to accept your counteroffer and it doesnt change their offer to buy you off rather than unlawfully dismiss you. You will get the money they have offered anyway and they will end up paying considerable costs if they continue as they are as they havent followed the procedures of the Employment Protection Act. If it is found that it is also unfair dismissal then you could end up with more money but as I said, that will take time and effort and make it harder for you in the future as many employers see success in an ET as a negative thing when considering employing someone rather than seeing it as their previous employer was a right tool for getting into that position in the first place.

[DickyRobbo44]

Would this be an acceptable script for the conversation?

 

After careful consideration of the proposed settlement to bring my contract to a premature end I deem the terms offered are not satisfactory in the respect of the impact this will have on my personal life and future career. The terms offered are what COMPANY NAME are contractually obliged to offer me.

Firstly and fore mostly I believe the process followed by COMPANY NAME have not followed the procedures set out in the Employment Protection Act. I do not believe there was any attempt made by COMPANY NAME to establish the facts and here my defence as by the end of the meeting I was handed a pre written letter stating the decision that was already made.

Dismissal without notice is generally reserved for very serious offences involving criminality or gross dereliction of duty.

In order for me to remove my right to appeal the decision and avoid following the route of a tribunal I will require the original proposed terms;

1. £**** lump sum which forms my statutory redundancy pay

2. Pay in lieu of notice in respect of 1 months statutory £**** which is subject to deductions for tax and national insurance.

3. Payment in lieu of accrued but untaken annual leave of 11 days £**** which is subject to deductions for tax and national insurance.

4. An agreed reference

5. Contribution of £250 to my legal fee’s incurred in connection with us entering a settlement agreement

With the addition of;

1. An additional month’s salary which is subject to deductions for tax and national insurance.

2. Serving the remainder of my contract on garden leave

[DickyRobbo44]

Can anybody quickly give that letter the once over?

[Emmzzi]

I'm reluctant to as I am not a lawyer.

[ericsbrother]

all I can comment on is the last 2 points. 1. Any settlement is not salary so you dont pay tax and NI on it and 2. they are buying that from you so there will be no further obligation to you or them.

Why not just tell them what you want rather than adding something to their offer? You are just complicating things

[steampowered]

I would use a list of key points rather than a detailed script, as it needs to be a conversation rather than a speech.

 

I would delete the bit which says the initial offer is all you are contractually obliged to offer - you don't want to imply that the minimum is legally sufficient.

 

The Employment Protection Act doesn't exist - it is the Employment Rights Act 1996. You might also want to briefly explain how and why you feel that there may have been a breach of the law, or why your dismissal was not justified.

 

I would say something like 'I don't believe you have properly complied with ACAS procedures, and I believe my dismissal could be seen as unfair dismissal. I am very keen to resolve this without the time and stress of a Tribunal but feel your initial offer was insufficient. I don't believe assessing my compensation by reference to the statutory redundancy payment is appropriate given that no statutory redundancy procedure was followed. I would be happy to accept the terms offered on the basis of an additional month's pay beyond the notice period, which I feel is appropriate and recognises the amount of time I will realistically need to spend finding a new job'.

 

The 250 towards legal fees would only cover advice on the effect of the settlement agreement, it would not cover any advice on your position or whether you have a claim against the company.

[DickyRobbo44]

Ok I've done it. I was asked what my thoughts were behind the additional requirement (I said an additional 3 months with the hope they will come back with an additional month or 2 months as a counter offer) and I said it was realistically the time it would take for me to secure employment elsewhere especially with the holidays coming up and I work in a niche sector.

 

I was also asked what I would do if the offer was declined and I said I would rather not work for them again but if I had to go down the Performance improvement option I would but I stressed I would rather settle without the stress of that. The lady has taken my offer and is going to get back to me before the deadline. How do you think I did? I'm itching already to take the original offer haha.

[steampowered]

Sounds like you did very well.

 

 

I'm a little confused why there is a performance improvement option on the table if you have already been dismissed. That would surely support any legal case you might have.

[DickyRobbo44]

Sorry I have not been dismissed, I am on garden leave and I have been offered a settlement to mutually end my contract.

 

They have rang back and offered me 1 months extra pay. I didn't say i would defiantly accept this but they made it clear it would be there final offer (probably a bluff) and I'm happy with that. Should give me the breathing room I need to find my next job. Is there anything else I should add into the terms? I'm worried that pre written references are usually treated with suspicion.

[steampowered]

If you are happy with the offer, then tell them that you accept in principle - subject the terms being properly documented. Ideally confirm the terms which you think you have agreed in a short email to avoid confusion or backtracking later.

 

There should be a settlement agreement which mentions that the company will, on request, provide a reference confirming your dates of employment and job title, and that any verbal reference will be on no less favourable terms. The danger zone is the section about the reference, which needs to be very clearly worded if you want it to be legally enforceable. I suggest the agreement clearly states that (a) the written reference will be neutral and state that it is given in accordance with the employer's reference policy which does not allow for personal references, or (b) a standard form reference is attached to the agreement stating something like 'DickyRobbo44 always turned up on time and worked hard' or whatever is appropriate, and the agreement states any reference (written or verbal) will be consistent with and on no less favourable terms than the attached standard form.

 

I'm not sure pre-written references are treated with suspicion. It is now very common for companies to have a policy which says they will only ever give bland, neutral references confirming job title and dates of employment. They do this to reduce the risk of being sued if a manager says something untrue or defamatory in a reference. This is certainly my employer's policy. This is less common in smaller companies but for a role like Project Engineer I would think future employers should be used to this.

[DickyRobbo44]

Thanks for the great advice. I have asked for their counter offer to be submitted to me in writing. Their original terms stated "an approved reference" so would that be acceptable or shall I stipulate that further? I'm guessing approved means I will get chance to see it before I sign the agreement.

[steampowered]

There are really two ways of approaching this.

 

You can either have a clause in the agreement which clearly stipulates what the reference should look like. The clause would normally say that the employer must provide a reference to your prospective employers on request, that the reference will confirm job title and dates of employment and that it will not say anything negative about your role or discuss the circumstances in which your employment was terminated.

 

The alternative, which personally I prefer, is to attach a template example at the back of the agreement. The body of the agreement would have a clause saying that, on request, the employer will give a reference consistent with the form attached to the agreement.

 

In both cases - clearly state either that there will be no verbal reference given, or that any verbal reference will be on no less favourable terms than the written reference.