Redundancy terms & conditions

pwuseme

Hello all, I have a rather complicated situation which I would appreciate advice on.

Nearly 2 years ago I was victim of a health and safety incident at work which caused me to be off work with stress for a long period of time. I had a solicitor and court dates arranged with my employers but they kept delaying and getting new dates. They have admitted to doing wrong and breaking the Health and Safety at Work Act and I have their admissions of wrongdoing in writing - they had not followed their risk assessments correctly and I had been treated differently to how colleagues were treated.

Anyway, after the delay of the first proposed court date, the company I worked for sent out letters to offer all employees the chance of taking voluntary redundancy. I had worked there for over 15 years and felt down because of the risk assessment failings so I enquired to see what I'd be paid off.

Eventually, their solicitors sent me a letter saying that they would only give me redundancy if I dropped the court case against them. I said that I would go back to work, so I returned to work. When I got back to work my shift manager said that they thought I had already taken redundancy so they had given my duty to another person and taken my working hours out of the scheduling. I told them that I hadn't even received any papers to sign to say that I would take redundancy and the shift manager told me that I didn't have a job to go back to. They managed to make a temporary duty for me but didn't allow me to go back onto my old duty because it involved a new minor item that I had been trained for and it wasn't in their interests to train me as they thought I was going to leave soon anyway.

I told them that they couldn't just take my job off me and that would constitute constructive dismissal. They reconsidered and I was told that I could take my redundancy payment and that the continuing court case would not be affected.

I had the court date set for within the next month but this week my solicitor phoned me to say that they company's solicitors are saying that because I took redundancy I cannot continue with the case against them and in doing so I would be breaking the terms that I agreed to in taking the redundancy and I would have to repay them my redundancy payment.

My solicitor is suggested that I drop the case against them because, although they have admitted to breaking the law, the compensation I receive could be less than the amount I could have to pay them back.

Effectively, the company who broke the law, got rid of my job and told me to take redundancy could actually make money out of me? Can this be correct? The managers who broke the law are still working there and one has been promoted. I am extremely aggrieved at what has happened.

Should I continue with court action against them?
Is it right that I could end up paying them money (even though they are the offenders)?
Would it be better to take the case up with HSE and let them decide about prosecuting for breaking HaSWA - surely the company cannot make me pay back redundancy money if someone else prosecutes them for what happened to me?

Really, I just want closure for what has happened. I want justice, it is so upsetting to know that the company broke laws and they can just sweep it under the carpet whilst the managers are sitting there with smug faces and not even the decency to apologise for letting me down.

I am also owed £6k for lost wages whilst I was off sick but the only chance I have of getting that back is by taking them to court, and if I do that I will be in breach of my redundancy apparantly and have to pay back more than I am owed. I feel blackmailed by them.

ceridwen

Have you got something in writing from the company saying words to the effect of "This redundancy payment is conditional on you dropping your claim against us?"

If you have received something like that and gone for the redundancy - then you have a problem.

If you have never received anything like this and only had the exact same "paperwork" as other people who were made redundant at that time - then I dont see how the company could stop you pursuing your claim against them.

Regarding the lost wages - then I would imagine that would be a totally separate issue to the injury claim itself. With that - I would have thought you could take them to court (ie an Employment Tribunal) about that anyway - as a totally separate issue. Those lost wages are nothing to do with your injury claim - they are salary due during a period of sick leave.

Sounds a bit like your solicitor might be trying to "wimp out" on this claim. Who is paying for this solicitor? Is it the Union, a legal add-on to your household insurance or one of those no-win/no-fee firms?

jdturk

My concern on this would be was the payment more like a compromised agreement payment, ie more than they would have given the other people on voluntary redundancy? If it was this could be what the solicitor was on about as the company could show that someone else got say 50% of what you got and the extra 50% was the compensation side of the redundncy?

Uncertain

jdturk wrote: »

My concern on this would be was the payment more like a compromised agreement payment, ie more than they would have given the other people on voluntary redundancy? If it was this could be what the solicitor was on about as the company could show that someone else got say 50% of what you got and the extra 50% was the compensation side of the redundncy?

For a compromise (not compromised!!!!) agreement to be binding the OP would have had to receive independent legal advice. The advisor (normally a solicitor) has to provide a certificate of this and have proof of carrying the legally required insurance. The are number of legal requirements about details that have to be contained in the CA.

You cannot, in English law, force the terms of the agreement by the silence of the other party. In other words it is not sufficient for the firm to say "here is some money and by taking it you have agreed to this that and the other".

PaulLuke

Get yourself a new solicitor!!

Seriously, it sounds somewhat convoluted but my reading of the situation is that you didn't accept redundancy - they made you redundant.

I agree with uncertain as the courts generally take a dim view of attempts to prevent people taking legal action except in very specific circumstances (such as a formal compromise agreement in employment matters).

However, it would help if you said on what grounds the H&S action is being persued. If for breach of your employment contract then the redundancy payment might affect any compensation paid from that action. If you are suing on the grounds that you employer was negligent through the county/high court then it is less likely as the basis of compnesation is different.

pwuseme

I received exactly the same paperwork as other people who signed for voluntary redundancy, but none of them had an ongoing case.
It was only in the solicitors letter from my employer saying that they would grant me redundancy if I dropped the case. Now they are saying that because I signed to take redundancy (regardless of not having a job left to go back to) then they automatically assume that I accepted the terms laid out by their solictor and in signing for redundancy any case now has become void. There is nothing in the terms on the paperwork that I remember signing for that states anything about this, even the union at the time said that signing it wouldn't affect my case.

In brief, what happened was this...
I became pregnant and informed my line manager. My line manager didn't believe me and told me to carry out my duty, they even told me to have a carrier bag with me if I really did need to be sick. The company's health and safety policy has risk assessments for pregnancys but they chose to ignore them for whatever reason. The heavy nature of my work is thought to have contributed to a miscarriage. My employer has accepted that they failed to act on risk assessments and I have that in writing but they are arguing that if I felt so ill through pregnancy and that if my concerns were genuine then I should've ignored their wishes to continue working and that I should've stopped without their say so. The only problem with that mentality from them is that if I had refused to work they would most likely have issued me with a conduct code and probably used it against me in the future to try to sacking me and not having to give a payout at all.

jdturk

Uncertain wrote: »

For a compromise (not compromised!!!!) agreement to be binding the OP would have had to receive independent legal advice. The advisor (normally a solicitor) has to provide a certificate of this and have proof of carrying the legally required insurance. The are number of legal requirements about details that have to be contained in the CA.

You cannot, in English law, force the terms of the agreement by the silence of the other party. In other words it is not sufficient for the firm to say "here is some money and by taking it you have agreed to this that and the other".

hence why I said 'like'

ceridwen

If you have received papers to sign to say that you will take redundancy AND signed them then I'm afraid I dont hold out much hope.

If they hadnt sent you a solicitors letter saying it would be necessary for you to drop the case to get redundancy

OR

if you hadnt signed anything saying you accept redundancy (after having received that solicitors letter)

then I think you would probably be "in the clear".

BUT -

Did you sign anything saying you would accept redundancy?

getmore4less

ceridwen wrote: »

If you have received papers to sign to say that you will take redundancy AND signed them then I'm afraid I dont hold out much hope.

If they hadnt sent you a solicitors letter saying it would be necessary for you to drop the case to get redundancy

OR

if you hadnt signed anything saying you accept redundancy (after having received that solicitors letter)

then I think you would probably be "in the clear".

BUT -

Did you sign anything saying you would accept redundancy?

I thought the ONLY way to give up employment rights was through a CA

jdturk

getmore4less wrote: »

I thought the ONLY way to give up employment rights was through a CA

I would be amazed that a court would not take an enhanced payout into account even if its not a CA and the employee has signed a form stating so, it may not be legal but if the company have misguidedly shown an attempt to pay for its mistake the court would probably come down more leniantly on it