Q&A

  • Can I be made redundant and replaced with an apprentice?

  • Q:

    After recently being made redundant as a Centre Lathe Turner in heavy engineering it has been brought to my attention that, from the very first day I left, an apprentice has been filling my old position every day.  To me this says my position was not under threat but that I was made redundant because apprentices are lower paid (government sponsored) and unskilled. Could you clarify please.

    A:

    Unfortunately, employers are allowed to make an employee redundant and then hire someone to do the job for lower pay. This would include an apprentice carrying out the role after the previous employee was made redundant. However, they should have offered this role (and the pay) to you before hiring the new person. If they didn't do that (therefore didn't offer you 'alternative employment') then you may have a claim for unfair dismissal.

  • Should I pay PILON tax if dismissal is discretionary?

  • Q:

    My contract was terminated last Wednesday citing the need for different skill set to move the business forward. My employer said I would get paid in lieu of notice, which I did today. However this came along with a hefty tax of almost 40% which I was told is because it was taxed as if that sum was my normal wage. I think I  saw a note on your site somewhere saying that PILON should not be taxed if it is discretionary.

    My original contract states:

    "We reserve the right in our absolute discretion to terminate you without notice and make a payment of your basic salary in lieu of notice. We may, in our absolute discretion, make such a payment in lieu of notice in one lump sum or in installments at such times as your normal salary would have been paid had you worked out your notice period."

    Does this mean that I should not have been taxed for this PILON?

    A:

    This is one of our most common questions. Up until April 2018, it was open to employers to pay PILON tax free if the contract did not expressly allow for it.  Unfortunately, from April 2018, the law has changed and now the rules require an employer to account for any payment made in respect of a notice period and deduct tax and National Insurance Contributions. 

    The usual rules apply to the first £30,000 of any termination payment being tax-free. 

  • I am a teacher with depression. Should I accept the settlement offered?

  • Q:

    I am a secondary school teacher and have worked for my current school for fourteen years.  Last November I was signed of with severe depression and anxiety. After six months I was invited to a review meeting. The agenda was outlined and it all seemed pretty standard. The meeting lasted over an hour where I was repeatedly asked when I would be returning. The head teacher was very aggressive and told me how much my absence had cost the school. She then told me how accommodating the school had been during the time before I was sick, basically she had a prepared monologue defending the schools record.

    The meeting seems to have been called to find out whether or not I blamed them for my illness. The experience actually worsened my condition. They then sent me to a psychiatrist who confirmed my GP's diagnosis and diagnosed my condition as work related. He outlined how I should be treated, which turns out to be quite expensive (not available on the NHS).   However he wasn't willing to offer any guarantees that the treatment would be successful in a time acceptable to the school.

    The school decided not to fund the treatment and after a year have decided to terminate my employment. Their behaviour towards me from start to finish has been bad, although it seems that they have just about managed to follow the procedures correctly.

    They offered me the choice of going down the capability route or to accept a settlement agreement with an agreed reference. The schools HR representative and my Union started 'negotiations'. The school's HR rep was very pushy and within a week had increased their initial offer of £7500 to £9500 but told us that if we didn't accept it there and then the offer would off of the table.

    Three weeks have passed, very little has happened and I feel very bitter about the experience. My notice period is three months, and my gross salary for that period is £9500, so essentially they are offering me my gross pay in lieu of notice to keep my mouth shut. I'm wondering if I should refuse to sign until they substantially increase the offer.

    A:

    One factor is how far down the route of dismissing you they have got. It's also difficult to prove that their conduct has caused you the stress, although the aggression shown by the head does sound like harassment. Can you get any witnesses for that? Have they made any reasonable adjustments for you in view of your illness?

    It seems that they are offering you hardly anything (just the tax saving on your contractual notice) so it would probably be worth holding out for more. Whilst still employed you can be a thorn in their side so they should want to pay more to get rid of you.

    Unfortunately unions are often not the best commercial negotiators so you should probably instruct specialist lawyers to conduct the negotiation for you. We'd probably ask your employer for at least 1 or 2 months' pay tax free on top of the current offer. Our fee would be modest and be based on a small percentage of any increase that we were successful in obtaining for you.

  • I'm being bullied at work, can I request voluntary redundancy?

  • Q:

    I have been working for a charity for 9 years, and over the past 18 months I have been bullied and harassed by my management team. I was suspended for 6 months but as there was no evidence to back up claims against me of insubordination, I was told it was harsh, and  I've been allowed to return to work.  However, the abuse has continued and ended with my deputy manager punching the photocopier and aggressively shouting at me in front of a witness.

    I emailed my manager to tell her how I was feeling but she didn't reply.  I have been off with stress for the past 8 weeks, and have to return this week, but as I have a grievance in against management, senior management have taken me out of my usual surroundings, and are putting me in an office in another building to do IT.

    I feel I have no support at all at work, and was thinking of asking for voluntary redundancy (funding is currently uncertain).   What do you think?

    A:

    Yes, If you are being bullied at work you can request voluntary redundancy if there are redundancies being made, and your employer want people to volunteer. If they are not making redundancies then perhaps you could ask to have a 'protected conversation' and simply suggest that you leave under a settlement agreement. Perhaps ask to be paid in lieu of notice, with one or two months pay 'ex gratia' (tax free) on top.

    The reason for the relatively low amount is that bullying claims are hard to prove and in fact a certain amount of bullying is legally allowed in UK employment law, unfortunately. (We believe that workplaces would be more productive without this Victorian approach.) Where it's been going on for a long time - as in your case - you could be taken to have accepted it. So don't expect a large pay-out.  If you want to achieve the highest amount with the least stress, consider instructing specialist employment lawyers to make the approach for you.

  • Can employer ask me to resign after 6 months off with a stroke?

  • Q:

    I had a 'welfare' meeting on Monday with my employer after being off work for 6 months with a stroke. In that meeting he asked me to resign so he can replace me. Can he do this?

    A:

    No he can't just ask you to resign like that. Having a stroke is potentially classed as a disability (if it could affect your health for more than 6 months) so your employer has a duty to try to make reasonable adjustments to allow you to continue working.

    For example maybe reducing your hours or helping in some other way. Only if not adjustments can be made can they move to dismiss you on capability grounds.

    Obviously with smaller businesses it is harder for employers to make adjustments whereas bigger ones can afford to be more flexible, maybe offering you a different role for example.

  • Am I allowed to speak to colleagues about my redundancy?

  • Q:

    My colleague and I were told that we were being made redundant and to keep it confidential from any third party. I discussed it with a colleague who I worked closely with who was shocked to hear it. None of the other staff had even been consulted or notified let alone a selection criteria set out.

    Also I have a text message from the boss, which I think is blackmail, saying that if I tell anyone of my redundancy I will not get a reference. I am deeply upset at the way I have been treated so I have spoken to other colleagues and my friends and family as I need their support. Am I breaking confidentiality doing this?

    A:

    There is no legal obligation upon you to keep your redundancy secret, it is just something which your employer has asked you to do. Of course if you are definitely being made redundant then it does not matter if you talk about it - the worst that could happen is that you could be dismissed.

    It does sound unfair to threaten to refuse to give you a reference, but what can you do? It may be better either to forget about the reference from them, or to keep your head down. So long as you are discreet and keep it off emails, it would be hard for them to know who you have told anyway.

  • I am being made redundant and the workload shared out – is this legal?

  • Q:

    I'm currently in a consultation period  with my employer regarding proposed redundancy for my role.  The reasons for the redundancy are given as cost-cutting and that my department has been reviewed and the employer feels only two people are needed (those two roles which would remain are my junior reports).

    The proposal is to share out my workload amongst others in the business who have been identified as having spare capacity, not just those in my team. I am seeking to establish if this is a genuine reason for the redundancy because the work I do is still required and is still available for me to do, but my employer is saying they don't need my role to carry out the work, as they feel my role is not essential.

    My employer has invited me to submit alternatives to the proposed redundancy of my role which I have done, and which are now being considered. I understand that should I wish to query the genuineness of the proposed redundancy it would be prudent to do so before the consultation ends and before my employer makes a final decision.

    A:

    It is legally acceptable for your employer to share out the duties of an employee to other employees within the business. They are at liberty to reorganise their existing workload in this way even though your job itself is not being made redundant exactly. They can even give the same role to someone else on lower pay, believe it or not!

    However, it is not necessarily just you who should be considered for redundancy. Have they considered sharing out other peoples' work to you? Is there anyone else who does your type of work, who also should be considered? These are questions which you should ask within the consultation process. Of course they may find it easier to offer you a settlement agreement, which would be better for you than nothing (although not as good as having a job necessarily). Good luck!

  • Do I have grounds for constructive dismissal?

  • Q:

    I was dismissed on 6th July for Gross Misconduct , Following internal appeal , a decision has been made that the penalty was too harsh and they have decided that disciplinary demotion is the correct decision. They have asked for a meeting to discuss a new role on 16th September.  Are they obliged to back pay me from 6th July?  Continuous service also remains an issue, as I had  - up to the 6th July - worked 21 years for the company.

    With the company stating incorrect decision of dismissal , are there more solid grounds now for constructive dismissal making it impossible to work at demoted level and the stress of every one knowing I was dismissed - this was communicated by the company themselves to lots of people and not by me.

    A:

    You should receive your back pay, yes. Regarding constructive dismissal, it will be difficult to argue this, because they corrected the problem themselves. The test is quite specific for constructive dismissal, and we would need to understand more about your particular case, but each case is normally so different that there is no right or wrong answer. If they were using the disciplinary process itself maliciously, then that would be a case for constructive dismissal, but it doesn't sound like that.

  • I'm off sick with depression and my boss wants me to resign. Should I?

  • Q:

    I am off sick with depression and have asked my boss to pay me off. He thinks nothing is wrong with me and says no, he wants me to resign instead. Please advise.

    A:

    If you are ill that is generally not a reason for your employer to pay you to leave. Generally if you can't perform your job any more, they are entitled to dismiss you for performance, but only after making 'reasonable adjustments', which means trying to accommodate your illness (for example allowing you some extra days off, even if they are unpaid).

    Of course if they discriminate against you directly for example by trying to make your life difficult, then that is different, and you would have a potential claim (and therefore a basis to request a settlement agreement).

    When you say your boss thinks that nothing is wrong with you - what has he / she said? Have you showed them a doctor's letter? If they are saying that there is nothing wrong with you, then of course they are also failing to make reasonable adjustments. But if you show them a doctor's letter, then there is no reason why they shouldn't believe you.

  • I was made redundant, then my role was given to someone else

  • Q:

    I've been made redundant.  However before we were given our notices a person was employed in our global office and I have now being told that she had applied for my role.

    I just want out anyway but am expected now to train her. They want me to sign a settlement agreement and tie me down to 4 weeks notice plus an additional 2 weeks (a total of 6 weeks). Where do I stand?

    A:

    This looks like a sham redundancy. If they have given your role to someone else then it is not a redundant role.  It appears to be unfair dismissal and in that case you should be entitled to a better deal. Only 2 additional weeks' money is too little - it should be a number of months. Try our settlement calculator on this website, and aim for something along those lines.

  • Should I submit a grievance during settlement discussions?

  • Q:

    I was selected for what I thought was redundancy. When I queried that, and stated that I didn't believe that correct selection procedures had been followed, it suddenly became a case of my "performance".

    The manager told blatant lies about my performance which I can show/prove to be false, as in fact my performance exceeds that of others who are staying. The bottom line is that the manager concerned doesn't like me and is using the job shedding exercise to get rid of me.

    The upshot of the meeting is that they offered to discuss a settlement agreement, which I estimate will fall in the region of 18 months salary as this is the redundancy deal which is on the table. I will take the deal after negotiating it up as far as is possible. I know that this figure exceeds what I could reasonably expect to achieve at tribunal.

    My question is that before I go I would dearly like to set the record straight by going down the grievance route and having this manager's motives exposed and my sales figures shown.

    Could this adversely affect the settlement figures? How would the timescale be affected? Is it worth doing merely to extend the process so that I continue to be paid before my notice period kicks in and I continue to accrue holiday pay? Essentially, is this a wise move?

    Thank you

    A:

    Why don't you submit the grievance as a draft or in a 'without prejudice' format (see articles about this on our website)? That way it won't affect timescales, and there will be less risk to your settlement figures (it may even help to increase these), but you still get to have your say.

    You could draft a without prejudice letter asking for the amount of money you want, and attaching a draft grievance, which you say will be submitted if negotiations break down.

  • My job was given to a replacement while I was on maternity leave

  • Q:

    A replacement was given my old job during my maternity leave.   I'm now having to opt to take voluntary redundancy rather than return to work as they say my job now requires more travel which I can't do. Is this constructive dismissal?

    A:

    Are you coming back from ordinary maternity leave or additional maternity leave?If you're coming back from OML, you have the right to return to the same job.  If you're coming back from AML, you have the right to return to the same job, unless it is not reasonably practicable for you to do this.

    It seems irrelevant that there is someone in your role.  However,  if they are described by the employer as permanent, this could be a good argument for saying that the employer never had any intention of permitting you to return to you job, which would suggest sex discrimination.

    You should be offered your old job.  If it is not reasonably practicable to do this because the role now involves more travelling, then the employer should explain and justify why the new job requires more travelling. However, you should still be offered this role. (It's not clear whether the employer was failing to offer the role because of the travelling, or whether they'd offered it and you had turned it down.)

    If you cannot be offered your old role, and you have decided that you don't want to take the new role (with more travel), then the employer should offer employment which is suitable for you and appropriate for you to do in the circumstances.

    Try to avoid resigning if you can, and wait for a dismissal.

    Ultimately, it may be that the employer can justify the increased travel requirements, and may be able to show that there was no alternative work he could offer you. In the mean time, it seems you have good arguments to try for a Settlement Agreement.

  • I have been offered reduced pay & hours but not redundancy. What can I do?

  • Q:

    I have been working as a bus driver for a bus company for the past 9 years. Now I have found out that they are stopping all their services in a couple of months time. The company has not told us/me anything about what is going on. But we believe that they don't plan to pay redundancy but to give us a job with about 20 hours a week and min wage. At present I have been doing 43.5 hours a week and getting paid 12.10 per hour. Can I ask for redundancy or what rights do I have?
    Thank you

    A:

    Changing your hours and your pay is a fundamental breach of the terms of your contract of employment and in that case, you would be entitled to resign and claim constructive unfair dismissal. We suggest you might just mention this to your employers and ask them instead to offer you a fair redundancy package. Assuming  your company wouldn't want to fight a constructive unfair dismissal claim battle, they should at least offer you a reasonable redundancy deal.  Good luck!

  • I think I am being unfairly selected for redundancy. What should I do?

  • Q:

    I have been told that the job I perform is at risk of redundancy as the company is shifting part of my workload (around 40%) to another location where it's said by the management and HR to be close to our major clients. The company plans to assign the rest of my workload to other colleagues after my redundancy. I was not given details who will take over all my responsibilities as a result of my redundancy.

    I do not accept the reasons given by the company for my redundancy because I feel that the company is unfair in selecting me and is breaching my employment contract by redefining, narrowing responsibilities agreed for my role.

    I am raising a grievance against my company. Please advise. I was told that, as a big firm, the company I am working for hires top lawyers. Should I be worried?

    A:

    It can be difficult to prove unfair selection for redundancy, especially as the company often keeps its cards close to its chest, for example in terms of who to redistribute your work to. So you are right to try the grievance route first, to try to get some answers.

    You shouldn't be worried because you have nothing to lose - you are already being made redundant.

  • Is my redundancy fair, following whistleblowing and depression?

  • Q:

    I had made a couple of serious allegations to the board about the MDs behaviour. Firstly he was involved in a large scale theft from the company, and was ignoring security team's advise to put protection in place, and secondly he was using a company vehicle for sole use without paying tax. For both I was told that the company were unaware and would take it seriously.  They later thanked me for raising it, told me that they would keep an eye on it and asked me to let them know if anything else happened. No more was ever done about either of the matters.

    About a month ago, I met my boss to discuss my increasing ill health- depression. After discussing my depression, communication was via email only and a lot briefer and more 'to the point' than ever before. Indeed one day, (when I was in tears after feeling threatened by the MD and waiting for a meeting with my Manager) the MD came into the room and said to me, "I don't know what is wrong with you. You need to relax, no one wants to talk to you with a face like that. Just let it go and cheer up for god's sake".

    Then I was made redundant, but have heard from a colleague (who was a temp) that she has been asked to step up into my post and has been offered a pay rise. I have raised a grievance which was dismissed. I am about to contact ACAS. Can you please confirm, how strong is my case? I am struggling to know whether others would see it as I do, or whether it is just due to my depression that I see this as being so wrong. Thank you.

    A:

    It sounds like you have suffered victimisation due to whistleblowing and also possibly due to disability too. Is your depression likely to last for over 12 months? If it is,  it would be counted as a disability. With whistleblowing and discrimination cases, it is difficult to obtain evidence. You would need either emails and/or witnesses to come forward to support you. It may be easier however to show how you have been made redundant and then replaced by someone else who is doing your job role.

    At the same time, the employer may not want their dirty laundry to be aired in public. We would suggest that you try to settle this matter out of court. You may find that instructing lawyers to help with this could be a good option, because not only does it take the stress away from you, but also they would know what to say, and how to say it. This is often the catalyst for a settlement. (See our website for articles on settlement agreements)

  • What settlement agreement can I get for ill health retirement?

  • Q:

    How much should I be entitled to for leaving my employment? I've worked for 36 years and I'm being payed off due to ill health – I have developed Parkinson's disease.

    A:

    Unfortunately there is no basic right to receive any payment for retirement on the grounds of ill health. It is true that your employer would have an obligation to make reasonable adjustments, because this condition would be classified as a disability. But if there are no reasonable adjustments that your employer could practically make to accommodate you, then ultimately they could dismiss you on capability grounds. This would simply entitle you to your notice period.

    Of course, sometimes disabled people are treated badly and this can give rise to grounds for claiming compensation. But if your employer does everything right then anything which they do offer you should be seen as a bonus. Wishing you the best of luck.

  • Can I ask my employer for relocation as a reasonable adjustment for stress?

  • Q:

    A few years ago, I was the victim of an assault and was involved in court proceedings and had to acquire a restraining order and move house. I was diagnosed with PTSD as a result which I still have to date and the prognosis says I am disabled but may make a full recovery based on completion of CBT counselling.

    Part of my PTSD triggers involve places - the person who attacked me was arrested a second time loitering outside my workplace and was arrested and charged for breaking the restraining order. I have moved out of the town to a new town in order to stop the constant stress of being in the area.

    I have asked my employer (a company of 20 people) if I can move to a serviced office in the town I live in (its 20 mins away from the one now ....everyone works from home apart from me and a coworker), but was told no, that my contract states that I work in the office. Was it a reasonable adjustment to ask for this?

    A:

    Because you are disabled, your employer has a duty under the Equality Act 2010 to make reasonable adjustments. There is no definition of a reasonable adjustment, because it depends on the circumstances.

    If your employer is a huge company then there are lots of things they could do, like move you to a different location where they already have an office. However because it's quite a small company they wouldn't be expected to do this.

    It is interesting that all your colleagues work from home though. Why won't they allow you to work from home? Unless there are specific practical reasons, then their refusal could be a failure to make reasonable adjustments. This would entitle you to issue a tribunal claim, which you can even do whilst still employed (for discrimination claims). In practice it may be worth putting your concerns in writing to them first. You would have 3 months to make a claim from the date of the failure.

  • When is it best to approach potential witnesses for an employment tribunal?

  • Q:

    I was harassed and bullied for 3 months by a sexist boss and his manager, and after the grievance hearing I got signed off with stress related illness and have issued an employment tribunal claim. I have been frozen out so accessing fellow colleagues is difficult. I want to speak to them as potential witnesses but not sure if it needs to be done at ET1 stage or whether it may be best to wait until the employer comes back with the ET3, or wait until the bundle is being produced?

    I have to tread very carefully with my witnesses. I am the main witness however and much of the case will come down to a "he said" " she said" when the bullies are cross examined. Do I proceed regardless? I do not want to stop this process without good cause.

    A:

    It is very difficult to get good witnesses for employment tribunals because most relevant witness will still be employed, and they won't want to damage their career prospects by going against their bosses. In our experience, you will only tend to get witnesses if they've already left that employer too.

    You will find that witnesses who are still employed will refuse to give you a statement. If you force them to attend by applying for and obtaining a witness order, then they will probably be hostile and could do you more damage than good. (Unless they tell you off the record that if you get a witness order they will cooperate.)

    The employer ('Respondent') in the claim will normally call witnesses from their own ranks, and you will be able to cross examine them. They may call the witnesses who you want, in which case you're better off letting them do it. If they don't call them then you need to decide whether the witness is so crucial that you have to go for a Witness Order. This might be best if they can testify to hard facts such as income derived from a specific deal, rather than say subjective evidence such as whether the boss is a nice person.

  • Are employers settlement agreement deadlines unfair when I'm off sick with stress?

  • Q:

    My partner has found himself in the unfortunate situation of having to raise a grievance against his boss at work which has resulted in significant stress and ultimately resulted in him being signed off with stress. The grievance process concluded prior to this leave of absence with only one of the 4 grievances made being upheld by the company.

    As a result of this he raised with HR the subject of a settlement agreement to leave the business. In the last couple of days (whilst still off sick with stress) he has been sent a letter from HR advising that any offer of a settlement will be off the table by Friday this week if he has not responded to them by then in writing.

    My question is, are the company, given the circumstances as to why he is off sick in the first place, allowed to make such contact with him in such a manner? This is adding to his stress and he is increasingly being made to feel the victim in a situation that was caused through no fault of his own.

    A:

    It seems that the employer has been most inconsiderate regarding the treatment afforded to your partner. Whether this is illegal or not is a bit of a grey area. If someone is disabled, then it may be contrary to the Equality Act 2010 to treat them in this way, but disability under that Act means a condition which affects you for more than 12 months. If he is not disabled then it is arguably just mistreatment, and would possibly amount to constructive dismissal, were it not for the fact that their offer is probably labelled 'without prejudice', which means that it could not be relied upon in court.

    It may be some comfort for you to learn that putting arbitrary deadlines on offers is fairly standard HR tactics, and is simply designed to increase pressure and therefore the chance of the employee accepting the offer. So it's probably nothing personal. One way to fight back would be for your partner to respond with a counter offer of his own. He could set a deadline for example saying that if the deadline is not met then he will appeal the grievance outcome. Make sure that you don't run out of time for any appeal while you wait for a response though.

  • Can I get holiday pay whilst on sick leave?

  • Q:

    I've been off work on long term sick leave.   Can I claim holiday pay for accrued holiday while I've been off work?

    A:

    Yes you can.

  • Should I accept the settlement agreement I've been offered?

  • Q:

    I was advised verbally that my voluntary redundancy payment would be approx £42 k. I asked for this to be confirmed in writing before the organisation announced who my replacement would be. I received an email confirming VR had been agreed, no sum was written down but I was asked to keep the sum quiet . My replacement was announced next day

    I then received a phone call to say there had been an error in the calculation and the VR figure was more in the region of £15 k. The original figure of £42k was never written down. After much negotiation I have now been offered a settlement figure of 30k which includes 3 months salary in lieu of notice. Should I accept ?

    A:

    You've really been mislead by your employer by the sounds of it. That does sound like a potential claim for unfair dismissal.

    How much you should get normally depends on a number of factors, especially your salary and the other factors listed in the Settlement Agreements articles on our website. Also try our Calculator to get a rough idea - its on every page of this website, you can't miss it.

    We would need more details about your case before we could advise whether you should take the current offer or not.

  • My husband is being bullied after having cancer

  • Q:

    My husband was diagnosed with Multiply Myeloma a couple of years ago. His work record is excellent, unfortunately he has recently undergone 6 months of chemotherapy followed by a stem cell transplant which he has only had a partial response to. He is now back at work and on maintenance chemo.

    Since returning to work he was offered a phased return but his line manager has had no discussion with him regarding support. She is on a daily basis picking faults, making him feel incapable of carrying out his duties, being bullied, questioning everything he does, totally undermining him (sometimes in front of his staff), not keeping him informed of what's happening and getting his deputy to attend meetings etc that he should be attending.

    My husband now finds going to work unbearable but feels he has to continue because we live in tied accommodation (no job no house), I have suggested he contacts the union but he cannot think straight and is worried about what the consequences of doing that would be.  He is having to battle his cancer and surely this treatment cannot be right? I'm just not sure he has the strength to fight this as well. He feels very isolated and its as if they want him out and to put his deputy in his place. Any help or suggestions welcome.

    A:

    S0 sorry to hear that your husband is having such a tough time. Ultimately, if an employer wants an employee to leave, then its a choice for the employee of whether to fight on and stay in the job or to try to leave with a settlement agreement exit package. If your husband wants to stay in his job then perhaps he could try submitting a formal grievance, or perhaps informally ask to move teams.

    It does sound like direct disability discrimination and also a failure to make reasonable adjustments, therefore, if he wants to leave, you should consider fighting for a decent settlement agreement package. Whether you prefer to do that on your own, or to instruct specialist lawyers, is an important consideration. In your husband's case I imagine that he would need a decent amount, as getting another job right now could be tough.

    There is a third option which includes commencing tribunal proceedings for discrimination whilst still employed. This can work at larger organisations, although one is normally labelled as a trouble maker and it can be a bit awkward attending work when the employer knows that you are suing them.

  • Am I obliged to give a witness statement at a tribunal?

  • Q:

    I overhead the phrase "you have to watch her', and I mentioned this to the 'her' involved. Management have asked me to be a witness to what I heard in a formal employment tribunal hearing... do I have to? It has been blown out of all proportion.

    A:

    No, you don't have to be a witness in an employment tribunal for anybody, unless that party obtains a 'Witness Order' from the tribunal compelling you to attend. Any Witness Order would need to be served upon you, but this is quite rare because generally parties will not want to compel an unwilling witness to attend.

    Of course your employer shouldn't victimise you because you have refused to give evidence, but then again this is still a possibility with unscrupulous employers.

  • Can I go back to work whilst on sick leave?

  • Q:

    I am currently on stress-related sick leave, and have been for the past two weeks.  I went to the doctor this morning and he signed me off for another week. I am keen to return to work as l am bored at home.  Can I ask my manager if I can go back to work while on sick leave or will this cause some issues for me in future?

    A:

    You can certainly tell your manager that you have recovered quicker than expected since your last visit to the doctor. This shouldn't cause you any issues in the future - if anything it would seem to indicate that you are keen to work.

  • Am I giving up my rights by signing a settlement agreement?

  • Q:

    I have a COT3 [note from lawyer: see below] which I am being asked to sign. It says I agree to accept the amount offered in full and final settlement for the claims I have relating to "disability discrimination. sexual discrimination, sexual harassment and victimisation", which I understand,  but it then has a sub clause which states "all and any other claims the claimant has or may have against the respondent or relevant person arising from or connected with her employment by the respondent or termination of such employment including( but not limited to) any claims under contract,tort or equity" then gives a long list of Acts including the DDA 1995, Sex Discrimination Act, Human Rights Act, Protection from Harassment Act and Equality Act.
    I presume they are referring to the entire Act as there are no references to any sections. Is this proper? I am concerned that I may be signing away any rights I have to bring legal proceedings against any acts of discrimination or victimisation the respondent may commit after signing the agreement.
    Also the agreement states I cannot bring any personal injury claim related to a claim of discrimination. Is this allowed in a settlement agreement?
    Also it says the Contracts(Rights of Third Parties) Act 1999 shall apply to the agreement. What does this mean?
    I would appreciate some advice as i am very confused

    A:

    A COT3 is essentially a settlement agreement which is signed after employment tribunal proceedings have started, but the basic principles are exactly the same as a settlement agreement. Essentially you are signing away your rights to sue your employer, but it only applies to things which happened in the past. So it cannot apply to future acts. (Presumably you have brought a discrimination claim while still employed, which is perfectly normal.)

    Settlement agreements normally do say that you cannot sue the employer for any personal injury arising from your employment which you are aware of at the time of signing. Again, if you later develop a personal injury, you can still sue for it regardless of signing your settlement agreement now.

    The Contract (Rights of Third Parties) Act is a specific Act which means that a third party can sue for breach of contract. In other words, if the contract is between A and B, but it also affects C in some way, then C can sue under the contract if there is a breach. The above Act excludes this, so in the above example, C would not be able to sue under the contract. Again, it is fairly standard to see this referred to in settlement agreements and is not normally something to worry about. Good luck.

  • What if both sides don't agree on the wording of a settlement agreement?

  • Q:

    I have requested a settlement agreement.  I have agreed to the payment amount and I am awaiting the draft agreement with a termination date of 31/10/2017.

    At this point, what happens if the wording and content of the agreement including the reference are not agreed by both parties? Is the termination date related only to the settlement agreement, or have I actually now handed in my notice even if the settlement is not agreed?

    A:

    All the wording of a settlement agreement can and should be agreed between you and your employer.  That includes the termination date, even if it is in the past.

    Some employers are good at agreeing things whilst others are more difficult. Agreeing the wording of settlement agreements is governed as much by commercial factors and the personalities of those involved, as by legal rights and wrongs.

    If you have a strong negotiating position, for example they want you to leave asap, then you might simply say 'I'm not signing this unless a, b & c are changed.'

    If you remain uncertain about the wording, then it would be wise to seek specialist legal advice before signing.

  • Can I undo a settlement agreement?

  • Q:

    I was given an alternative to redundancy, being a settlement which was better than the redundancy package. I had been receiving treatment for stress related illness and I explained I was not up to making a decision. I had only 1 day sick in 6 years and hit all targets set. I was told if I did not take the settlement agreement,  it would be withdrawn. I felt that I was being bullied into making decision which I was not well enough to make. I ended up signing the agreement due to how ill it was making me – at no time did they consider my health. Can I now go back on this settlement agreement?

    A:

    If you have signed a settlement agreement and your independent lawyer (like us) has signed it too, then unfortunately it is very difficult to go back on, unless perhaps you are saying that you were not of 'sound mind'. This would require a lot of medical evidence and would be difficult to prove. It's a lot more complex and serious than being stressed. Your lawyer should have explained the detail of the settlement agreement to you, and if they didn't do this properly then you might have a claim against them, although legal claims against lawyers are very difficult.

  • I have a settlement agreement so do I have to tell a future employer why I left my last job?

  • Q:

    I was offered and have taken a settlement agreement, but what can I say the reason is for leaving my last job , redundancy? I have been saying that it was a change of direction.

    A:

    Good question! Settlement agreements are normally confidential so there should be no danger that your previous employer could talk about why you left. This means you have a free hand to say whatever you want.

    It's a good idea to get an agreed reference in your settlement agreement, which just states job title and dates of employment, and a clause saying that all other types of reference request will be refused, so there is no scope for a new employer to get more details from your former employer by phoning or other means.

  • I've been off sick for 3 years. What are my rights?

  • Q:

    I have been off work on sick leave for 3 years now.  I and my employer see a return to work very unlikely.  My employer has no other job with light duties for a return to work and wants me to resign.  I do not get paid when off sick.  I have been with company 20 years what are my rights and what money am I due if any?

    A:

    If your employer has tried to make reasonable adjustments and there is still no job for you, then they can dismiss you. However, you may well have been accruing holiday pay the whole time that you were off sick, which could be worth a lot of money, so that at least is worth asking for.

  • I've been off sick 2 years and am now being fired. Can I get a settlement agreement?

  • Q:

    I have been on long term sick for almost two years, after having a medical my employers are saying their only option is to terminate my employment. Would I be entitled to a settlement?

    A:

    It depends. Lets assume that your illness is legally a disability (broadly speaking, something which affects you for more than 12 months). Your employer would need to try to make reasonable adjustments, to facilitate your return to work. The nature of these would vary depending on your work circumstances, both in relation to your role and also the features of the company you work for. Only once this process is exhausted would your employer be entitled to dismiss you on capability grounds. It is often possible to short- circuit all this with an agreed settlement agreement exit package.  Hope this helps.

  • Is my pay in lieu of notice (PILON) taxable?

  • Q:

    I'm a teacher with almost 20 years service and have been offered a settlement deal to leave with 4 months pay. In the meeting it was agreed that tax and National Insurance contributions would not be paid.  However,  work are taxing it and deducting National Insurance contributions as well. I will lose approximately £6000 to tax. There is one line in my contract about being paid 2 months instead of notice but I never realised the tax implications of this for settlements.

    A:

    Generally, the first £30,000 can be paid tax free if the deal is structured correctly. However, if there are payments made in respect of a notice period, whether they are worked or not, tax is payable for the amounts equivalent to the notice period.

    If your contract allows for you to be paid in lieu of your contractual two months’ notice, then this will be subject to deductions for tax and national insurance contributions. But there is no reason why the additional two months pay would be taxable. This sounds like it is a termination payment or an ex gratia sum. If this is the case then under section 403 of the Income Tax Act this can be paid tax free.

  • How do I ask for a settlement agreement?

  • Q:

    I would like to apply for a settlement agreement with my company.  I don't know how to go about this – do I need to see a solicitor or can I go to a Citizens Advice Bureau?

    My employers have caused me stress and to take time off sick.

    A:

    Hi Julie

    The thing to do is to write your employer a legal letter. You can do this yourself, or ask lawyers to do it for you. Citizens Advice Bureaux are unlikely to be able to help.

    To start with, have a look around our website and especially our articles on Settlement Agreements.

    Hope this helps.

  • Acute stress at work caused me to have a stroke

  • Q:

    Hi, I suffered a stroke over 12 weeks ago.  I have worked for my employer for over 12 years and am in my mid 30's. I'm currently in rehab and have regained 80% of the movement I lost in one half of my body. The neurologist has diagnosed that this has been caused by acute work stress and told me that if I return to my job, then this will probably happen again with no prediction of how bad it could be next time.

    I am currently working with Occupational Health to explore my return to work with this employer. I can no longer perform any or most of my duties as I'm struggling with reading, retaining information, suffering with tiredness, I'm struggling with my memory too and can no longer drive the long distance to the office. They have said they will accommodate a return to work doing a couple of hours a week at home and some admin work, with all my other responsibilities stripped away; so effectively I feel my career is over.

    I hadn't raised a grievance previously against my management team as I didn't realise how stressed I was or what the consequences would be. Since being ill, I'm still facing poor management (asking me to put my out- of- office on after my family notified them of my stroke and semi-paralysis hours after it happened).

    I want to return to work and am fighting to get better, however I don't feel that I could return to this employer again. Their HR has never spoken to me and all meetings have been over the phone. I think the best solution would be a settlement agreement so I could continue my recovery and start to look for something more suitable locally when I am ready. I'm still suffering a lot of anxiety about returning to work (especially as this caused my illness) and working for the same management team. They have offered for me to look at another role, but I think that would add to the anxiety levels. Would a settlement agreement be a possibility and how would I ask for this as an option? Could I raise a grievance about what has happened even though it was post the stroke? Thanks

    A:

    Sorry to hear about this. Legally, this a relatively complicated case, because you would need to prove 'causation', being the link between the stroke and the job. It would also have helped if you had put the employer on notice previously. Going forwards, their failure to make reasonable adjustments could well be the basis to negotiate a settlement agreement for you. You may need to set out in writing the adjustments you need, and see what they are prepared to do to accommodate that.

  • Why should I be made redundant but not similar colleagues?

  • Q:

    I am being told that they are making me redundant as my role is a discrete role although there are 9 other people with the same title and role. In what context can a discrete role be used?

    A:

    All 9 of you should be put into a 'pool' and assessed together. Try asking for the criteria used. You should appeal the decision and also issue a formal grievance. At the same time if there is no chance of keeping your job, try writing a 'without prejudice' letter to suggest a fair amount of compensation.

  • I need a 'without prejudice' letter template

  • Q:

    I have been advised to write 'without prejudice' to my employers proposing we reach a settlement agreement.   I am looking for a template letter for this as I want to word it correctly.  Any help would be appreciated.

    A:

    No problem. Try https://www.monacosolicitors.co.uk/without-prejudice-letter-example/. Good luck!

  • Can my employer advertise for my replacement while I'm still employed?

  • Q:

    I was asked two weeks ago if  I would take voluntary redundancy. My employer said he would give me till we met 3 days later for my decision. He offered me a package of 12 weeks pay and a very good reference. That then changed when we met. He then said that because I had made a few mistakes in my work, if I wanted to I could have a final warning and come back to work, but if I made another mistake, I would go with nothing.

    I admit he had spoken to me about this a couple of times,but I have never had a written warning.  Should that come before a final?   For the last 6 days he is also now advertising my job as an apprenticeship. Can he do this when I have not officially left yet?

    A:

    As a rule you should get a normal warning before you get a final warning, unless your conduct is so bad that it warrants an instant final warning.

    However, advertising your job is tantamount to constructive dismissal, if you can prove that it is in fact your job which they are advertising. So long as you've been employed with the same company for over 2 years, you may be able to make a tribunal claim for this.  Alternatively,  for a modest fee we'd be able to negotiate an exit package for you.

  • I have been told job my job will end after an operation

  • Q:

    I have worked at my job for 9 years and have had two operations to repair tendons. Due to this I am no longer to do my normal job duties. My employer is trying to dismiss me on capability grounds. I have been doing a different job within my work department which I can cope with which is on a light duties scale. I have been doing this for 3 years plus and have now been told they want to redeploy me. At the end of redeployment if no job occurs they will dismiss me with no pay out.

    The thing that angers me is why redeploy me when I have done a different job role for over 3 years? I have asked for a settlement agreement (voluntary severance) but my employer says no,  as my normal job post is still there. I have not done my original post for 4 years now and will never return to my original post, so therefore in my eyes my original post is no longer mine, so I should be entitled to a severance package. I only signed a redeployment register as my manger threatened to terminate my contract if refused to do so. Any help on this matter please? Many thanks.

    A:

    If your operation means you are classified as disabled, then your employer has a duty to make 'reasonable adjustments' which means that they should try to accommodate you in another role where possible, to enable you to work despite your tendons.

    We would need to find out if they are simply trying to get rid of you for some reason (including disability discrimination). If they are, we could negotiate a settlement agreement for you for a modest fee. Alternatively , if they are having a legitimate restructure, then your current role may need to end.

  • Can they make me redundant if my contract is different from the redundant role?

  • Q:

    I have been told that the job I perform is at risk of redundancy as they are closing the department. However the job on my contract is different from the one they are saying is at risk of redundancy.

    This year they employed another person who has the same contract as me and have decided to keep this department open. At the beginning of the year I was asked to cover this role and as I'm a flexible worker was happy to assist. Can the company I work for legally make me redundant for a role I was performing but is not on my contract?

    A:

    In a nutshell yes, they can do this, because in this case, it's not what is in your contract which matters, it's what you are doing in practice. However, if you can prove that they deliberately moved you to the new role just so they could make you redundant then you'd have a good claim for constructive dismissal.

    Do get in touch if you'd like to know if we could help you negotiate a settlement agreement.

  • I have been given temp work instead of redundancy money. What should I do?

  • Q:

    I have just been signed off work for 2 weeks due to stress. I work for a large company as a project manager and my job was made redundant in January this year. They have tried to find me an alternative, but this has failed on couple of occasions. I then took on a temporary assignment, which keeps being extended for couple of weeks at a time, but there are no permanent opportunities.

    This has been very stressful and I reached a breaking point last week when I was told there may not be an extension on the project I was working on as there are permanent staff with not much to do. I feel I have been pushed from pillar to post, treated unfairly, made loads of promises and given false hopes.

    I have given everything to the company for the last 8 years, given up my home life, tried to keep my head down and always worked really hard. My job load is not the issue, it is the way I have been treated. I no longer want to continue working in the company, not even in another division. I just want my redundancy money and be let go to find a job elsewhere.

    Please advise what can I do. They told me because I did not accept a reasonable job offer and took a temporary assignment I am no longer entitled to my redundancy.
    Thank you

    A:

    It sounds like you've been poorly treated and you could well have a claim for constructive dismissal. We would need to discuss whether it's worth putting in a grievance, and we could contact your employer for you (off the record) to negotiate at least payment of your redundancy money if not more. In effect you have been made redundant and simply recruited again on a temporary contract.

  • I am on long term sick leave. Can I ask for redundancy?

  • Q:

    I have been on sick leave for 2 years now and I and my employer know that I can't return to the job I was doing. Can I ask for redundancy? I have 20 yrs service with my employer.

    A:

    You can ask for redundancy, preferably if there is a redundancy exercise going on at work at the moment. If not, perhaps it would be best to ask to speak to them 'without prejudice' and explore whether they would be happy for you to leave with a settlement agreement. This discussion would be off the record. If there are any emails, make sure you mark them with the words 'without prejudice'. (See our website for articles on 'without prejudice'.) Good luck.

  • My boss is always bullying me: What should I do?

  • Q:

    I have gone into work today and been told by HR that I am being given a settlement agreement.  Basically my boss hates me and we had a new PA start this week so he wants to push me out. He's made my life a living hell these past few months, constantly having a go at me, finding things to have a go at me about, copying in other people to make me look useless. I have been advised to take this to court and go down the unfair dismissal / bullying route.

    I have had no verbal or written warnings, I have gone straight to the settlement agreement stage and wondered whether being offered two months salary is acceptable, given this includes my four weeks notice. I have since gone back and asked for six months pay. He hates me with a passion and wants me out of there and I know if I refused and went down the dismissal route I would end up with nothing and no doubt a lot of stress whilst he pushes me to my limits and catches me out doing things wrong. Thanks

    A:

    It is difficult to win a claim for this kind of bullying / harassment, because employers will argue that they are just doing their job. The key is to gather some strong evidence. You could secretly record your boss shouting at you. Collect the more abusive emails. And if you can somehow get witnesses to make a signed written statement for you, then all of this can be put into a grievance. That should help to increase the offer amount on the table. Frankly they have only offered you notice pay + 1 month's pay ex gratia, so you don't have much to lose by fighting this for now.

  • My job is at risk, but I've been told not to discuss it. What should I do?

  • Q:

    My job has been put at risk and my employer has stated that they 'require me to keep it confidential'. I do not think this is fair as I need advice from colleagues etc. I have obviously told friends and family but not my direct reports. I have not had any offer as yet from my employer. What should I do?

    A:

    This is a grey area and more governed by your contract rather than the law itself. Don't mention it to your junior employees. If you really need advice from colleagues, perhaps quietly mention it to your peers or seniors, but ask them to keep it confidential first. And keep it off the email account. Your employer could try to argue that by discussing it, that is misconduct.

  • I've been offered more redundancy pay if I leave quietly. What should I do?

  • Q:

    I have worked for the same charity for 13 years in a senior management position. Today the Director, out of the blue, offered me a settlement agreement with an 'enhanced' redundancy package, plus a verbal promise of regular work as a consultant once the employment relationship was terminated. If I go quietly they will pay me more money than the statutory redundancy payment (ie £17k instead of £8k), if I don’t, then everyone will have to go through a redundancy process.

    There has been no discussion about redundancy and in fact the Director not long ago reassured everyone that no jobs were under threat. I have recently had a difficult working relationship with my boss and during the discussion, he said I had been at the organisation too long and it was time to step aside in the management role but they still wanted me to do project work in my key area of expertise.

    Where do I stand? My preference is to negotiate for a new job within the revised structure since there is a clear need for the role, albeit shorter hours, but I have not been offered any alternatives. This has come at the worst time possible as I have recently taken on a mortgage on a property to house my elderly parents and I therefore need regular and secure income.

    A:

    This is a difficult area, so unless we have more details, we can only give you general guidance.

    Companies can make employees redundant and then hire them as consultants, but they need to be careful doing this so that it doesn't look like a tax dodge.

    Regarding their treatment of you, as this all appears to be off the record so far, there is nothing here that you could use against them in Tribunal (unless there is a discrimination element, which removes the confidential nature of such discussions).

    If you did want to leave the job and wanted us to help, we would try to negotiate for you and also use the stick of telling them that you are happy to stay and go through the redundancy process. If you really do want to stay, then you should go through the redundancy process and try to keep your job that way.

  • Can I be made redundant after requesting a location change and flexible working?

  • Q:

    2 months prior to my return to work after maternity leave, my company agreed to a change in location from location A to location B. I received an automated email stating that my location had been changed. I then made a formal request for flexible working, so that I could work some days from home to care for my mother.

    I was then told that I am in a redundancy pool as the site at location A is closing and all employees based there will be made redundant or they can apply for jobs in location B. But as I work at location B, then surely I could not be in this pool. I was then told that the change to my location was a mistake and that I officially still 'work' at location A and am in the pool still.

    I have since found out that they have been interviewing for my position - at the exact grade I am, and in location B where I currently work. When I asked about this, I was told that the jobs weren't at the right grade and that they'd be unsuitable for me as I wanted to work from home and also I probably wouldn't want to do on-call work and overtime. I have since been told that I may be able to apply for another role elsewhere in the company.

    I feel that I am being made redundant because I have requested flexible working. They are hiding behind the fact that my location change was a mistake, but I was never informed of this until I asked about it in the redundancy meeting. I am the only female in location B. I shouldn't have to apply for a role which isn't really suitable for me. I feel I am being discriminated against because I've got a family and because I've asked them to be flexible so I can help care for my mother. What should I do next? Thanks

    A:

    This is where a useful first step would be for you to submit a discrimination questionnaire to your employers. It sounds as though you have a potential discrimination claim here which you could either pursue further, or you could decide that you want to leave your employment with a negotiated settlement agreement and financial payout. Have a look at the articles on our website about Discrimination, which give further information and practical advice when you're being discriminated against.

  • Is it worth asking for a settlement agreement after 3 years sickness absence?

  • Q:

    I have been on long term sick leave for 3 years with depression and anxiety. My entitlement to company sick pay ran out after a year and I was switched to receiving 50% of my pay through an insurance company. I am still in receipt of that now. HR and OH were in regular contact but I have not heard anything now for the past year.

    The insurance company ask for a yearly report from my consultant and I am waiting now to see if they will renew the benefit again. My consultant has stated that she does not think I will be ready to return to work for 2 years and that I might never be able to return to that particular role. The company have already stated that there is no alternative role available.

    Is it worth asking for a settlement agreement?

    A:

    It's worth asking for a settlement agreement, if only just to tie up loose ends. But the value could be quite low here due to the amount of time which has passed. How about just asking them to pay an amount equivalent to your notice pay as a tax free lump sum? Double check your insurance policy to see if leaving would affect your payments.

  • Knee replacement means I can't do my job. How much should my settlement be?

  • Q:

    I have been with my firm for 18 years. Last year I had total knee replacement. I am just starting back to work on supported return.  If in the next few weeks if I cannot do my job my employers have suggested a settlement figure.  How much can I expect?

    A:

    Well if you genuinely can't do your job then you might not be entitled to any settlement money at all. The employer would need to try to make 'reasonable adjustments' like giving you different work or in a different location, but if they have tried that, and your doctor's report says you're unlikely to be able to do your work properly, then ultimately you can be dismissed for capability reasons.

    However employers may not want to go through those processes and you have been there a long time so there may be some good will value in taking a settlement. Try the compensation Calculator on our website for an estmate of how much you can expect to receive. Get in touch if you'd like to find out if we could help you.

  • I was replaced whilst on sick leave: What should I do?

  • Q:

    I am nearly 51 years old .  I have been with a company 2 years and suddenly they complained that my performance was bad and this gave me work stress. I was signed off for 4 weeks and after I went back I found out they have employed someone to do my job who use to work at my MD's previous company.

    Now they are offering me another clerical job or a settlement to leave. They have broken my contract. I don't want to stay with them any more. Please can you tell me how much I should ask for and is 6 months enough as considering my age I might find it difficult to find another job.

    A:

    Firstly, you will need 2 years' continuous service to issue an unfair dismissal claim.  If they are offering you 6 months' money that does sounds like a good deal (depending how much your notice pay is) because a tribunal might only award you around that much anyway,  even if you won,  and subject to whether or not you had got a new job by then.

    Try the compensation Calculator on our website for an estimate of how much you could expect to receive, and read our article on how much you should get in a settlement agreement: https://www.monacosolicitors.co.uk/settlement-agreements/

  • Can I get age discrimination compensation?

  • Q:

    I'm 62, and my company has discussed a without prejudice agreement. My earnings last year were £62,417, with 10 years service. They have offered £30k cash (increased from £20k already), 3 months salary in lieu - £14k, Bonus - £10,700, Profit Share - £3,432. My feeling is that this is clearing out older members of the team. My health is good with no time off in 10 years.

    A:

    It is difficult to assess this without knowing your case details, such as your notice period and also what kind of profit share is in your contract. Really you  should get in touch with us to discuss this in more detail, especially because aged 62 it may be difficult for you to get another job, so although your offer does sound like a lot of money, it may not tide you over to retirement. Having said that, if you decline the offer and stay put, you may not be able to claim because you haven't actually been dismissed, and discrimination is hard to prove. 

  • I've been off sick with depression and employers don't want me to return. What should I do?

  • Q:

    I work as a Manager for fast growing company and have been on sick leave for 10 weeks due to anxiety and depression. My condition was created due to my elderly father who lives alone becoming a strain (emotional as opposed to providing assistance) and also trying to run a very busy team and needing more resourcing which my Manager was resistant to and therefore the team and myself were extremely overworked.  I approached my Manager a few times regarding my stress but was not supported.

    Since I have been on sick leave considerable resourcing has been put into my team. I now feel recovered and after a great deal of thought decided that a life change would be beneficial to me although I want to remain at the company and therefore proposed to them that I step down to a role with less responsibility.

    There are two positions advertised internally a Supervisor and a Clerk within my team. Was called to a meeting and told that even though the Supervisor is advertised it would not be available to me as it was intended to go to lady who is currently my assistant so the only role available was Clerk.  I was then asked if I was going to apply for that role and I said I was confused that the other role would not be available to me but yes I would . I was then put through a long meeting where I was feeling very pressurised to resign. It was pointed out repeatedly that the salary would much less and role would be much less 'honorouble'.

    My manager went over several times how nervous they are that at even such a junior role I would suffer a relapse. I am on SSP only and was asked if that was not the reason I was applying as was it not financially driven. She then turned attention to my Dad and asked if the situation was resolved and was he in a nursing home and when I said no she then said that that stress was still there for me. I then terminated the meeting and said I believed they were discriminating against me on the grounds of mental health and insisted that they provide me with copy of the transcript before I left the building. When they provided the handwritten transcript they had written ' without prejudice' on it. I am now not sure if I want to work at this company as they clearly do not want me there .

    A:

    This is a very unfortunate situation as even if  you wanted to continue working at the company, it seems as though they don't want you to. It sounds like they are failing to make reasonable adjustments, so the question is - is your condition considered to be a disability? It would need to be over 12 months in duration for it legally to be a disability. If so then you have a potential claim and therefore a fair negotiating position. If not then you are left with a claim for constructive dismissal, which could still be quite strong.

    Remember you normally need at least 2 years' continuous service for a constructive dismissal claim. Good luck!

  • I was dismissed with no warnings. Is that fair?

  • Q:

    I have been dismissed from my position with a company that I have been working for, for 9 months. I was summoned to a meeting today, with no prior warning, and told that I was being let go due to excessive absenteeism and that I failed to complete set objectives.

    There were no issues raised previously about my performance, as I passed my three month probationary period with no issues. I had had some time off due to a serious issue with my tooth and also time to look after my 5 year old son, when he had severe sickness and diarrhoea. I then contracted the sickness bug and due to my working in a food production environment, had to be away from work for 48 hours from my last symptoms as per the company's policy.  I also had three days off with a flu bug.

    The company has not followed any standard procedures ( disciplinary meetings, the right to have a work colleague with me in the meeting etc.) How do I stand in relation to unfair dismissal in this situation?

    A:

    Technically you have no unfair dismissal rights, as you have been employed for less than 2 years. (It's less than 1 year for those employed before 06 April 2012.)  However, you might have a disability discrimination claim if there was anything wrong with your son that was categorised as a disability, and you took time off work to look after him.

    If you want to  see if we could help you further, you can request a consultation by clicking on the button on your screen. Thanks.

  • Should I accept redundancy offer after bullying and racism?

  • Q:

    I was informed my job was at risk because of a company reorganisation. My manager has never been fair to me, always treating me less favourably than other employees in his team. I have kept a diary of events since his introduction into the job. He has also made racist jokes at me which l felt were uncalled for. My personal development was never taken seriously, training cancelled and my training needs always questioned.

    l appealed the decision for why my role was being made redundant and I wasn't given the right answers. I only have a few days left at work and after raising a grievance about my manager,  the employee relations manager has come back to me with a final offer without prejudice for 6 months' pay, even though I had asked for 9 months.

    What should I do?  I have until Friday to make the decision. They said this was a one off offer and they cannot give me 9 months pay.  I have been with my employer for 3 and a half years.

    A:

    6 months' money sounds pretty good depending on what your notice period is? If the offer is 6 months plus notice, or if notice is only a month or less, then you should consider taking it.

    A tribunal would give you say 6 month's money (if you hadn't found another job by then) plus an amount for race discrimination. The discrimination could be a few thousand pounds,  depending on its seriousness, but it's always hard to prove racism because people never write it down. Then you have the risk of losing the tribunal case, plus the long wait until trial, and the possibility that you could get a new job straight away (so you're only left with the racism compensation).

    If you'd like to see if we could help you further, do get in touch.

  • A settlement agreement was offered to me after a stroke

  • Q:

    I suffered a major stroke two years ago and went back to work after six weeks.  However, I found it very difficult to work as I was still recovering.  After a few weeks, I broke down and my manager gave me a couple of months off on full pay.  On my return to work I worked reduced hours and was still paid fully for this up until last christmas.

    My recovery finally ended this summer and since then have been doing very well all brain functions and body functions are back. The only small side effects I have are a slight slurring of speech(which in no way affects my ability to work) when tiredness sets in,  but all in all I am back to my pre-stroke self.

    I was then approached by my manager informing me that my speech is unrecognisable at times and that I'm not up to the job and only operating at 80% of my pre stroke self.  He asked whether I had considered parting ways and coming to a financial agreement with the company. I have since been offered a settlement agreement from the company mutually terminating my employment.

    I am unsure what to do as this has come completely out of the blue.  Now I am fully recovered and back to my pre- stroke self I feel that it's as if they have waited for me to recover and have now put this on me. I have been with the company for 12 years. They say they want to look after me but this mutual agreement to terminate will make it very hard for any future employment.  Please advise.  Thanks

    A:

    That is a terrible situation and I'm really sorry for you. It sounds like blatant disability discrimination, although your employers do seem to be prepared to pay for it, which is something. From what you say, it also sounds like your bridges are burnt and you wouldn't want to stay there now anyway.

    If you want to discuss your options in further detail and see if we can get you a better deal, please do ask for a (free) initial consultation with one of our specialist lawyers.

  • Been put on a PIP - how much should I get in my settlement agreement?

  • Q:

    I have been with my company for four years and my boss is offering a settlement agreement as an option at the end of a Performance Improvement Plan (PIP) process. What am I entitled to as a minimum and what would be considered fair to ask for?  I am on 6 months notice.

    A:

    As a minimum, you're not entitled to anything, but then again if you have 6 months' notice and the company want to part ways, it is reasonable to expect 6 months' pay in lieu of notice. In other words all your notice pay in one lump sum. Most companies would tax that, but it could be paid tax free legitimately.

    In terms of what would be considered fair, it depends on how you've been treated. Is the PIP fair? If it is, you might not expect anything else. Or is it an excuse to try to get rid of you? In which case it would be reasonable to expect a few months' more money perhaps. Although with such a long notice period, you'd be unlikely to get an Employment Tribunal to award you more, even if you made a claim, because you only get compensation to make up for wages lost while you find another job. The Tribunal wouldn't give you much over 6 months' money anyway, unless you were nearing retirement age.

  • Can I issue a tribunal claim after 3 months?

  • Q:

    [Question received in August]

    I was dismissed from 11 years employment in October last year, with my employer providing the General Medical Council with  falsified information with no supporting evidence.  I have just found out that I was struck off the GMC register more than three months ago. Do I  still have time to claim “detriment caused by employment under race discrimination' in the Employment Tribunal as it is over 3 months?

    A:

    Unlikely. Given that it is now August and you were dismissed last October, it is probably too late. However, if the information was provided to the GMC more recently, and you have evidence that it was due to your race/ethnicity/nationality etc, then you may still be able to claim.

  • Is my redundancy selection process fair?

  • Q:

    I am going through a consultation process with my employer.  I've been there 11 years and they need to make 10% of the workforce redundant. They tell me they're making my position redundant and that it's nothing personal.  They tell me I'm a good employee with proven track record, good achievements and results.

    I have put it to them that my work is still available and feel they haven't given me a fair reason for getting rid of me. Some other people are in a points process against other people in their department doing the same job. Should I try negotiating a better package or do I stand little chance?
    Thanks

    A:

    It is difficult to prove that the process itself is unfair (rather than the way the process is implemented). You would need to show that there are other people doing your job who haven't been considered for redundancy, therefore you should be in a points assessment with them.

    Also remember that you can apply for alternative employment in the same company.

    If you ask the right questions in this way, you may be able to negotiate a better deal.

    We hope it goes well but get in touch again if you would like our help or if you want us to arrange for your settlement agreement to be signed.

  • Can I resign if I don't get paid properly?

  • Q:

    I have been working for the same company for in excess of 14 years. The company is struggling and my last two monthly salary payments have been late causing me to miss regular outgoing payments. This month I was told it may be a regular thing.

    I feel that I have no other alternative but to seek employment elsewhere and so am being forced by these circumstances to resign. Have decided that if the same thing happens at end of august to tender my resignation. Could I claim constructive dismissal?

    A:

    Yes, you could. But if you get a job on the same money, with no gap between them, you will have incurred no loss so it would only be worth claiming if there is a gap between jobs or if the new job is on less money. In which case you should keep copies of all your job applications for better jobs as evidence.

  • How much should I get after 6 months off with stress and 12 years service?

  • Q:

    I have been off sick from work with stress for 6 months now following bullying from a member of staff. I raised a grievance against her which was not upheld. HR have offered me a settlement agreement as my sick pay has now ceased. 6 people within my office have recently been made redundant but when I asked HR if I could be considered I was turned down and told "your job is still there and therefore you are not eligible for redundancy"

    I have worked there full-time for 12 and a half years. Today I was offered 1 months pay in lieu of notice, 4 weeks pay as an ex-gratia payment and 11 days accrued holiday. After all the years I have worked there I thought this was quite mean.

    I work for a multi billion pound company and until recently loved my job. The stress has caused me other health problems too and I really don't feel well enough to return to work and therefore would rather take a decent pay off. Please could you advise me if I am being unreasonable?

    A:

    This sounds like a tricky case and we'd need more information, but if you've been off sick for so long it's hard to claim constructive dismissal. And now your sick pay has run out you have no reason to stay there. On the other hand how can your job not be redundant unless someone else has been doing it?

    We'd need to know more about this. You need an angle for a decent deal - maybe whistleblowing or discrimination - but as it is,  you may just have to take the money on offer.

  • Should I get my settlement agreement offer in writing before negotiating?

  • Q:

    Out of the blue my employer has offered me a settlement agreement.  I think the offer is low.  He has offered verbally only.  Shall I negotiate the amount now or get the offer in writing first then negotiate?

    A:

    There is no need to get it in writing first, because if you ask for it in writing it can make you look desperate for the money. Instead, write to your employer in an email stating the date of your verbal conversation with the amount offered, and stating your required amount, with reasons of course. (There is no need to mark it 'without prejudice'.)  The most important thing is to get your reasons right.



  • Would HMRC require documentation of my ex gratia payment?

  • Q:

    My employment contract contains a three month discretionary PILON clause, and it is my understanding that if my employment is terminated with no notice and my employer does NOT exercise their right to PILON then a settlement agreement could be signed that would allow the notice pay to be paid tax free.

    If my understanding of the tax position above is correct, would HMRC consider it necessary to have this specified in a letter terminating the employment contract? If so, would a statement similar to the above be sufficient?

    A:

    No, HMRC wouldn't normally require such documentation. There's a box to tick on your tax return for 'ex gratia' payments and you simply specify the payment there and it should be tax free.

    PS it is often quite difficult to get your employer to agree to paying notice tax free, even if they are allowed to!

  • Can I claim for losing private health insurance when I'm made redundant?

  • Q:

    Hi, I'm being made redundant with over 500 staff from one office. The business is relocating 200 miles away.
    I have been on PHI for over four years and can only qualify while employed, being made redundant will obviously cancel this benefit – should I be offered compensation for this in a settlement agreement?

    A:

    I take it that you mean private health insurance. If PHI is provided by your employer, and then you are genuinely made redundant, then it's the same as any other benefit which you stand to lose when you lose your job unfortunately - its unavoidable that you just lose it. They don't have to offer you a settlement agreement at all, but it sounds as if they are giving you something. Office relocation is a pretty solid reason for redundancy, but make sure you've been considered for other roles, for example if you are prepared to relocate.

  • Am I liable for tax on payment in lieu of notice and ex gratia payments?

  • Q:

    Would I be liable for tax and National Insurance contributions on the ex-gratia payment and the pay in lieu of notice from my employer?

    A:

    If a payment is ex gratia, it's not pay in lieu of notice (PILON).  Normally ex gratia payments up to £30,000 can be paid tax free. Any payments made in respect of your notice pay will be subject to deductions for tax and National Insurance contributions, whether your contract allows for it or not.

    Read the tax-related articles and the Q & As on our website about this complex topic and get in touch if you want further specialist advice.

  • Can I record meetings on my phone for use in an Employment Tribunal?

  • Q:

    I read somewhere on your site about making mobile phone recordings recordings which may be used in tribunals. Now I can't find the page where I read that. Can you give me the link please?
    Great site BTW

    A:

    Our website page is called 'Evidence gathering in employment disputes: Making audio and video recordings' and you can read it on https://www.monacosolicitors.co.uk/evidence/audio-video-recordings/. It's one of several helpful guides that we've written on collecting and compiling evidence in workplace disputes.

    You might also like to have a look at our main page about evidence, called 'Evidence gathering for employees’ workplace disputes & legal cases'. It concludes with links to several other practical guides on different aspects of the subject. See https://www.monacosolicitors/evidence/

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