On Long-Term Sick and looks like contract will be terminated.

Uncertain

dustinjames wrote: »

good thread.

about compromise agreement, can the employee ask for the employer to consider this?
Im in a similar situation. On SSP, cant see my self going back for health reasons.
And dealing with employer is becoming tiresome.

Common opinion is, if you resign, no benefits for a few months.
If get sacked, qualify for benefits.

So compromise agreement, is a termination? or resignation? or diff things to diff groups?
eg what would reference say? that he/she left? or got sacked? would reference say of sickness record?

Ideally I would want reference to say nothing negative about me or my sickness record.
is this a reasonable request?

Can an employee ask for a redundancy package when asking for compromise agreement?

A compromise agreement is just that - an agreement!

Apart from one or two things that have to be in it the employer / employee can agree pretty much what they like.

For it to be valid you MUST receive independent legal advice before signing. Normally the employer pays for this.

Generally the employee needs to make the first move under these circumstances as the employer may be concerned about suggesting it for fear of a constructive dismissal claim.

Most agreements include an agreed reference - again the word is agreed - so what is in it (or not in it) is up for negotiation. The employer is unlikely to agree to write anything that is blatantly untrue as it could bounce back on them but sickness can certainly be missed out at least. Make sure the agreement states that any reference given verbally will conform.

Normally the agreement will include two sums of money. Pay in lieu of notice and untaken holiday (taxable in the normal way) plus a sum in compensation for loss of employment (normally tax free up to £30K providing it is not a contractual entitlement). You can look on this as redundancy if you wish but, technically, if your job is made redundant (job - not person) there is no need for a CA.

If your firm have valid grounds to dismiss you on capability grounds (i.e. ill health) then you would only be entitled to pay in lieu of notice (this is complex if you are currently not being paid but you may still be entitled to some) plus full pay for however much holiday you have accrued. Note, you have still been accruing paid holiday all the time you have been off sick.

The advantage of a CA for the company is that it ends the matter once and for all and takes away any possibility of a claim. Any claim will cost them both money and time to defend even if they ultimately win. Obviously if they lose it will cost them more. A CA gives a known cost and a quick resolution and will almost certainly include a clause requiring complete confidentiality. Unless you have at least a half reasonable potential claim against the company they are unlikely to want to pay much. If they are a large organisation they may well have normal policies as to how they deal with these situations. Some tend to settle easily where others dig their heels in as hard as possible.

Hope this helps.

dustinjames

thanks.

So the employer and employee would speak first and agree the terms, and THEN who drafts it?

Say if we just agree on me leaving, with no pay or money involved, and reference intact, still a compromise agreement?

How should employee make first move? informally or set up a meeting or in writing?

if the employer has not breached any part of their side of the contract with employee, will they just not say, sorry, if you want to leave, just give in your notice.

The reference: the exact wording would be agreed? or just what would NOT be said? how does that work, they note it on my record and when a future employer writes or calls them they just read off it?
Or should i or could i ask for a written reference during this process that i can take away with me?

Ive read on internet that a compromise agreement is one which includes a situation where the employer has done wrong and the employee says "i will not go to tribunal" for further action if you give me this and this. Correct?

thankyou

Uncertain

dustinjames wrote: »

thanks.

So the employer and employee would speak first and agree the terms, and THEN who drafts it?

Yes, normally the employer's solicitor using a fairly standard format.

Say if we just agree on me leaving, with no pay or money involved, and reference intact, still a compromise agreement? Yes, anything less MAY serve your purpose (but take advice) but would give your employer no legal protection

How should employee make first move? informally or set up a meeting or in writing? Which ever you feel most comfortable

if the employer has not breached any part of their side of the contract with employee, will they just not say, sorry, if you want to leave, just give in your notice. Maybe, but at the moment you are still accruing holiday pay and could return to work at any moment which may give the employer a problem

The reference: the exact wording would be agreed? or just what would NOT be said? how does that work, they note it on my record and when a future employer writes or calls them they just read off it?
Or should i or could i ask for a written reference during this process that i can take away with me? The EXACT wording (you may almost be able to write your own reference if the employer is keen enough to get the matter resolved). Normally the CA would oblige them to respond to any reference request in the agreed manner. Also ask for a signed copy.

Ive read on internet that a compromise agreement is one which includes a situation where the employer has done wrong and the employee says "i will not go to tribunal" for further action if you give me this and this. Correct? The whole point is that you would be signing away just about every legal right or possible claim and that the CA settles the matter for good. This is why you have to be legally advised for it to be valid

thankyou

Answers in red above

SarEl

dustinjames wrote: »

good thread.

about compromise agreement, can the employee ask for the employer to consider this?
Im in a similar situation. On SSP, cant see my self going back for health reasons.
And dealing with employer is becoming tiresome.

Common opinion is, if you resign, no benefits for a few months.
If get sacked, qualify for benefits.

So compromise agreement, is a termination? or resignation? or diff things to diff groups?
eg what would reference say? that he/she left? or got sacked? would reference say of sickness record?

Ideally I would want reference to say nothing negative about me or my sickness record.
is this a reasonable request?

Can an employee ask for a redundancy package when asking for compromise agreement?

Whilst I do not disagree with Uncertain's summary of what a compromise agreement does, I do feel that it should be poinyed out that compromise agreements are not all that common and their main pupose is to settle a dispute or potential dispute. If you are off sick and simply find it "tiresome" dealing with your employer, there is absolutely no incentive for the employer to want or need to enter into a compromise agreement. You are only being paid SSP, so it's no skin off the employers nose if you sit on SSP until it runs out. And similarly, why would the employer want to give you a redundancy package unless they are making redundancies and you get selected for it. It is cheaper for them by far to offer you nothing.

I may be wrong, but I feel there's a story here that isn't being told. Advice given based on "similar situations", hypotheticals, and broad sweeps, is pretty much useless to anyone. Why not try telling people what is going on so that the advice fits your situation, instead of you trying to make some rather anonymous advice fit it. Not least because, depending on what the back story is, approaching your employer for a compromise agreement, a redundancy package and a really good reference just because you find them "tiresome" might just annoy them enough to think of other options that you would dislike intensely.

Oh, and if you resign for good cause - such as being too ill to work - then benefits are not suspended. But the test of whether you had good cause won't be your word on the matter - they will want your employers version of events and on health grounds they will probably want a medical opinion - possibly from one of their own doctors. If there are genuine health grounds for you being unable to work in your present job then you can get advice on this before resigning on such grounds.

Similarly, whilst an agreed reference may form part of a compromise agreement, a compromise agreement cannot in itself break the law, or it is invalid. So my question would be, "what negative thing" do you expect them to say about you or your sickness record? Any reference, compromise agreement or not, must be truthful if they choose to give one at all. So if they are asked how many days you had off sick, then they cannot lie about this. They can refuse to answer, but that would very likley set alarm bells ringing with potential employers.

Uncertain

SarEl wrote: »

You are only being paid SSP, so it's no skin off the employers nose if you sit on SSP until it runs out. And similarly, why would the employer want to give you a redundancy package unless they are making redundancies and you get selected for it. It is cheaper for them by far to offer you nothing.

Not quite true....

It is costing the firm accrued holiday so they will, in effect, have to pay him for one day's work every two weeks whilst this situation continues.

SarEl

Uncertain wrote: »

Not quite true....

It is costing the firm accrued holiday so they will, in effect, have to pay him for one day's work every two weeks whilst this situation continues.

I'd suggest that six or so days days holiday pay would be significantly less than any redundancy package! Especially since accrued holiday pay would still have to be paid if a compromise agreement was made. But my point remains entirely valid - on the face of it, it is significantly cheaper for the employer not to enter into a compromise agreement, and there are a lot of reasons why they wouldn't. Without specific details, advice in a vacuum isn't much help and could be less than helpful.

justanopinion

Agreed. It depends entirely on the organisation. If they are able to backfill the position and manage the person on LTS, then there is no reason to suggest they would agree to a compromise agreement.

From my experience, some companyies will only agree if there is substantial merit in it. Other companies hand them out like Smarties and think they can use it as a get out clause to not follow process. I will not give examples of some I've seen... :-)

dustinjames

blimey, alot of information to take in. Thankyou to all here.

concern about reference: just dont want them to tell future employers "we do not recommend him, terrible sickness record, difficult to work with etc" Just a bad character reference. "had x amount of months off for x..and then in affect Quit/resigned.
Advice on this has been written about here. Cheers.

SarEl

dustinjames wrote: »

blimey, alot of information to take in. Thankyou to all here.

concern about reference: just dont want them to tell future employers "we do not recommend him, terrible sickness record, difficult to work with etc" Just a bad character reference. "had x amount of months off for x..and then in affect Quit/resigned.
Advice on this has been written about here. Cheers.

It is highly unlikley that an employer would write a reference in that way. They would generally state the number of days sickness in a set period, without explanation of what the sickness was or comment on the record. It is up to the potnetial employer to make of that information what they will. However, some potential employers do ask a question such as "Would you reemploy this person" and the choice of answers is ususally yes or no, perhaps with reasons.

Uncertain

SarEl wrote: »

It is highly unlikley that an employer would write a reference in that way. They would generally state the number of days sickness in a set period, without explanation of what the sickness was or comment on the record. It is up to the potnetial employer to make of that information what they will. However, some potential employers do ask a question such as "Would you reemploy this person" and the choice of answers is ususally yes or no, perhaps with reasons.

Obviously if you did manage to get a compromise agreement (or an agreed reference by another route) then your old employer can ONLY reply with the agreed form of words. They would simply have to ignore any question that wasn't directly covered in the agreed reference wording.

How well this works and what the potential employer may "read between the lines" is another matter.

In any case you may find that some job application forms will ask how many days you have had off sick.

Sometimes the best bet in these health situations is to take a very low key basic job for a few months - perhaps something seasonal. This will then become your most recent employer and you may well have, truthfully, an excellent sick record with them. You then give them as reference 1 and present the agreed wording from your main job saying how wonderful you are as number 2.