Suspended During Grievance

zzzLazyDaisy

Hi Kelly

Just a few comments while I am thinking about this.

1 You asked about whether the payment they are offering will be taxable...

It almost certainly won't be for two reasons.

a) A PILON (payment in lieu of notice) only becomes taxable if the contract provides the employer with the right to make a PILON (which makes it a contractual payment) OR if it is customary practice to make a PILON when an employee leaves (I doubt this company is big enough to have formed an historical 'custom and practice' over notice pay).

b) Payments made under a compromise agreement are normally viewed as 'compensation' which is not taxable, apart from certain items which should be mentioned separately - for example if there is any outstanding holiday pay it should be identified and it should state that this will be paid through the payroll and taxable in the normal way.

2 You also asked if the month's salary would be your notice - am I right in saying that before yesterday you didn't have a written contract/statement of particulars? In that case did your original offer letter say you were entitled to one month's notice? If not, then the applicable notice period is one week.

3 ON the issue of the compromise agreement - it is important that you realise that in signing a CA you are giving up your right to make a complaint to an employment tribunal against this employer. There is nothing wrong or underhand in them wanting to do this, it is a perfectly normal and legal way of ending an employment relationship. But it does mean you can't go back for a second bite of the cherry later, so it is important to make sure that you are happy with the CA before you sign it.

4 On the issue of the amount of money they have offered - one thing I would say is that it is a lot more than you would have had a few days ago when you resigned on the spot and walked out.

You also have to compare it to what you might get if you were to refuse their offer and make a claim to an employment tribunal instead; based on what you have told us, if they dismiss you for gross misconduct there is no guarantee that you would be successful at tribunal, and even if you were, there is - in my view - quite a high chance that the tribunal would make a discount for your contributory conduct. For both these reasons I think they are in the right ball park, though calculation of the 'severance payment' isn't an exact science. We can come back and look again at the payment later.

5 As uncertain says, a decent reference is worth much more than the £££'s as a tribunal has no power to order a reference. We need to make sure that the CA expressly states something like 'upon request by an actual or prospective employer the company will provide a written reference in the form attached to the CA as appendix 'A' and will not enter into any further written or verbal correspondence with the requesting employer, whether by letter, e-mail, telephone or otherwise'. It is true that a refusal to discuss the reference may make alarm bells ring for a new employer - but, in my view, not as much as if CD picks up the phone and puts the boot in on the quiet...

6 re the reference - a form of words that usually works (if they will go for it) is something like:

"Kelly was employed by [company] as an [admin assistant] from [date] to [date] when her employment ended by reason of redundancy. During her time with us, we found her to be honest, reliable, and hard working, and we wish her well for the future."

7 A note about the use of 'redundancy'. The CA must state a reason for the termination of the employment. Your situation is not a redundancy situation in law. However, there is case law to say that the parties may place whatever label they wish on the termination for the purpose of the compromise agreement. Your employer may refuse to apply the label of 'redundancy' because it isn't a redundancy situation, but equally they may agree - in which case it is a good 'no fault' reason for the ending of the employment, for you going forward.

8 £250 plus VAT is about average for a solicitor's fee for advising on a compromise agreement. Uncertain is right, it wouldn't cover the costs for negotiating a better deal for you, but the employer isn't required to pay those costs, just literally the costs of the solicitor going through the CA with you and making sure you understand what you are signing. The normal way of doing it is that the solicitor bills you as the client, but send s a copy of the invoice to the employer who pays the bill direct to the solicitor.

My advice is - if possible - to do as much of the negotiating/agreeing with the employer beforehand - with our help - so that by the time you go to the solicitor, there isn't much for the solicitor to do (being aware all the time that the employer may not be open to much discussion or negotiation, so you will need to be very realistic and pragmatic about this process) Also to check with the solicitor beforehand what their fee is for signing off a CA, and if it is a bit more than the £250 +VAT, you can probably get the employer to agree to a small uplift for that.

9 remember that you are currently on paid suspension. They won't let that go on for long, but while it does, it means that you are being paid while you look for a new job, so it won't be a bad thing if it takes a while to agree the wording of the CA

10 What is the arrangement with the nursery? If you give notice now, and then find a new job, will it be easy to withdraw the notice or get her a new place?

11 just thinking out loud here... you told them you'd need to think about it, and you probably want to talk to your OH, so you might want to wait until Monday and then send an e-mail to FM, referring to the compromise agreement, and saying that as FM knows OH is away with the forces, and you are sure he will appreciate that you need to discuss this with him so you will e-mail him again later in the week when you have had chance to talk to OH. This will hold things off and buy you another week of paid employment, and give you a breathing space to think about what you (realistically) want out of the CA (bearing in mind that you may not have a lot of wiggle room for negotiating).

Hope this helps to answer some of your queries and hasn't over faced you too much.

Back later

Dx

Uncertain

zzzLazyDaisy wrote: »

1 You asked about whether the payment they are offering will be taxable...

It almost certainly won't be for two reasons.

a) A PILON (payment in lieu of notice) only becomes taxable if the contract provides the employer with the right to make a PILON (which makes it a contractual payment) OR if it is customary practice to make a PILON when an employee leaves (I doubt this company is big enough to have formed an historical 'custom and practice' over notice pay).

b) Payments made under a compromise agreement are normally viewed as 'compensation' which is not taxable, apart from certain items which should be mentioned separately - for example if there is any outstanding holiday pay it should be identified and it should state that this will be paid through the payroll and taxable in the normal way.

2 You also asked if the month's salary would be your notice - am I right in saying that before yesterday you didn't have a written contract/statement of particulars? In that case did your original offer letter say you were entitled to one month's notice? If not, then the applicable notice period is one week.

Whilst it is not totally clear, I read post 143 to suggest that there is a contractual right to make PILON.

Although obviously if that is just a piece of paper generated yesterday and not the contract the OP is working under..........

zzzLazyDaisy

Uncertain wrote: »

Whilst it is not totally clear, I read post 143 to suggest that there is a contractual right to make PILON.

Although obviously if that is just a piece of paper generated yesterday and not the contract the OP is working under..........

Sorry, Uncertain, you are absolutely right.... I was/am working on the basis that they can't start imposing new contractual conditions at the same time as they start the process of seeking to amicably terminate the old ones! But thanks for raising it, I think we'll get Kelly to make the point about not accepting the new contract at this stage, in an e-mail early next week, so there is no confusion

kelly_borntoshop

the grievance was dismissed or disagreed with down to misunderstanding statements? which i feel is unfair.

i know it will make no difference now but a rant may make me feel better. FM basically read off a list given to him by CD. It didnt take me long to click on that my job wasnt available.

he admitted the company was wrong for not providing me with particulars to which he called a "contract". he discussed the first grievance, about the work. he said that CD sat opposite me for a year so knew exactly what i was doing - dont you think thats a bit of a cop out? she doesnt get my email nor did she ever evaluate the work. anyhoo.
she said that she didnt feel i needed "direct management" and was left to my own devices (which is a fair comment).
She states that she did everything herself before me therefore i should be able to handle it - though she never had the design element or the marketing which she has admitted in the past they did way more last year because they never had the design element that i bring to the mix.
the overtime was put down to "we all do it" (not fair enough, they dont!) and you were never asked (fair enough).

she and FM seem to be avoiding the whole design thing at all costs - i dont know if there is a legal reason for that, perhaps exploitation i dont know.

the discrimination i said i had over reacted and was no longer an issue as i was paid for that day.

i was just polite and listened, got in the starting points when asked to speak. when asked for comments re: thier decision to disagree i read off daisys "the weeks leading up" statement. he said "so it all comes down to us not making allowances".

he had a few sort of FM comments himself. he said this wasnt pleasant for him (i appreciate) but he had to stand by the company (also appreciate). he asked if i felt that he had pushed me out i said no not you. he said that MD said everything would be ok but hard for CD. he said if i didnt want to deal with CD i have his mobile number or my OH can get him on Xbox lol. that was light hearted i think.

anyhoo. probably not relevant now since its moved on so rant over.

zzzLazyDaisy

Well, as rants go, it was a short one

Seriously Kelly, the grievance meeting was always going to be a farce - CD is senior to FM. He doesn't have the authority to over-ride her, or to give her instructions to change her ways - and anyway, he isn't going to put his job at risk for someone who has a neon sign over her head pointing towards the door!

So why did we let you waste your time going along to the meeting then?

Because sometimes you need to play the long game....

Dx

Edit - one relevant point though, please type up (or write down) a careful note about the meeting, in as much detail as you can remember, and sign and date it, and keep it safe with any original handwritten notes that you took at the time. We don't need this at the moment, and hopefully you will never need it, but *if* you are unable to come to a mutual agreement with the company and ended up going to tribunal, this would form part of the evidence. I really hope it doesn't come to that, because it would be a horrible stressful experience for you with no guarantee of the outcome, but still, you can't assume anything until the CA is signed

zzzLazyDaisy

kelly_borntoshop wrote: »

just so i understand - could this be something on top? that is untaxable?

I am working on the basis that any lump sum you get will be free of tax - apart from any outstanding wages or holiday pay, which would be paid through the payroll and would be subject to tax and NI in the normal way.

kelly_borntoshop

so it could be a statutory weeks notice (untaxable) within any lump sum?

this new silly contract has some get out clauses for notice pay but no i havent signed it - i wish you could see, it would tickle you. its truely been thrown together at the last minute with most focus on termination and notice.

kelly_borntoshop

3 ON the issue of the compromise agreement - it is important that you realise that in signing a CA you are giving up your right to make a complaint to an employment tribunal against this employer. There is nothing wrong or underhand in them wanting to do this, it is a perfectly normal and legal way of ending an employment relationship. But it does mean you can't go back for a second bite of the cherry later, so it is important to make sure that you are happy with the CA before you sign it.

a few worries i have.

i know its standard but the "cannot be under offer of another job whilst signing this agreement" i am not exstatic about.

and should there be a clause stating i can never go back to the company? not happy about that either because if FM takes over when CD retires, which is a big possibility, he may or MD may ask me back...

the signing away of any court proceedings. would you say this is this in my interest?

zzzLazyDaisy

I think I may have missed something here. Have they already given you a copy of the compromise agreement that you would be expected to sign?

Re signing away the right to take them to court/tribunal - that is the point of a Compromise Agreement. If you don't accept that, you may as well forget any thought of doing a deal - it's not going to happen.

kelly_borntoshop

4 On the issue of the amount of money they have offered - one thing I would say is that it is a lot more than you would have had a few days ago when you resigned on the spot and walked out.

You also have to compare it to what you might get if you were to refuse their offer and make a claim to an employment tribunal instead; based on what you have told us, if they dismiss you for gross misconduct there is no guarantee that you would be successful at tribunal, and even if you were, there is - in my view - quite a high chance that the tribunal would make a discount for your contributory conduct. For both these reasons I think they are in the right ball park, though calculation of the 'severance payment' isn't an exact science. We can come back and look again at the payment later.

This is most certainly true. Its better than a court case health wise, and i would still be left with a dismissal which is never good.

I looked at some web pages on costs to defend, i am not sure if they are insured for court proceedings in their public liability insurance but i am on my military insurance. because the internet is so reliable, i came up with minimum £2000 to defend and maximum approx. £9000? depending on the complexity.
would i be right in thinking it would be a half day/day job at tribunal?
i guess they have offered me the lowest mark because they think it will be a cut and dry unfair dismissal case? however there are contributing factors?

Full of questions today, sorry :-p