Settlement Agreement / Severance Payment

bigbars

Whilst I wait for an official formal offer. Is there anything I should be looking for or expecting?

I’ve been in my role for 15 + years,

Initial conversation included or mentioned :

- 3 months notice period payment taxed
- outstanding leave payment 
-  1 month salary untaxed payment
- standard reference not mentioning terms of the termination 

only thing I’ve just thought of is should I be requesting pension contribution payments continue  or any other benefits?

I’ll of course get legal advice once I have the letter/document. Just trying to get ahead of the curve as they like any offer in life claim to be giving a fair deal.

MattMattMattUK

Deleted_Userlj said:

Whilst I wait for an official formal offer. Is there anything I should be looking for or expecting?

I’ve been in my role for 15 + years,

Initial conversation included or mentioned :

- 3 months notice period payment taxed
- outstanding leave payment 
-  1 month salary untaxed payment
- standard reference not mentioning terms of the termination 

only thing I’ve just thought of is should I be requesting pension contribution payments continue  or any other benefits?

I’ll of course get legal advice once I have the letter/document. Just trying to get ahead of the curve as they like any offer in life claim to be giving a fair deal.

Why are you leaving/being got rid of? Misconduct, redundancy, performance, unable to fulfil the role, a reason means that they are at fault but the only workable solution is for you to leave employment, etc.

If it were a redundancy situation you would be expecting a minimum of a week's pay for each full year served, that would be tax free up to a threshold, but that does depend on why your employment is ending. If it were misconduct you would only be entitled to they pay up until the end of your employment and any accrued holiday pay. Performance would be based on your contract/employee handbook, plus whether they like you or not depends how much they offer etc. 

Brie

So it's not a simple redundancy situation by the sounds of it.  For reference I was employed for 14+ years before being made redundant and got a tax free payment basically equivalent to a full year's take home pay.  Pension contributions and health plan continued during a 3 month garden leave period where officially I was still employed but not needed at work.  Any share schemes were considered safe and completely accessible under tax free rules from the day I stopped being employed.  Obviously this deal was great for me (perfect time too as I was beginning to look at retirement in any case) but it also benefited my employer.

And that's the thing you have to think about....how is your termination benefiting the employer?  It's stopping an employment tribunal for one thing.  How much would that cost them?  When you talk to the solicitor (paid for by the employer of course) be sure to get a sense of whether there is fairness on both sides.  Also take into account how employable you are taking into account your age as well as your industry, location and the current situation you are in.  

El_Torro

Agreed that we need more information. If it's a case of voluntary redundancy I'd be pushing for about 1 month's salary for every year worked. If it's gross misconduct then I'd be thankful for whatever they offer you. 

I wouldn't ask for a continuation of pension payments after you leave employment. Basically because I very much doubt that your employer would agree to this. 

bigbars

Sorry, forgot to give context. Been wfh for a period due to health issues, and not in the office, but in their words it is untenable. Unable to fully fulfill my role which is claimed I am currently only doing 20%, don’t ask me how that is quantifiable and I didn’t want to get drawn into it as I know it not to be true. They want me to return to the office and I am not ready.

 So I don’t think it falls under redundancy, not that employers don’t know ways to work around rehiring for a redundant role.

not sure what it would fall under as not performance otherwise they would have start performance monitoring, performance plan etc as they have a process to follow for that and I am doing everything that is possible remotely. And such was not referred to in my quarterly performance reviews.

  not gross misconduct as I am working just not from the office and have medical service on my side, but they do not want to go down the road of on medical grounds I expect as it leaves them open to constructive or unfair dismissal. 

I know this ultimately is just a quick way to get rid of me, as the medical grounds would be a lengthy process that they would have to tread carefully.
they are impatient and want schedule, timescales but that is not possible as even therapists has alluded to that they can work to a plan but no assurances it will be ok by then. And I always stressed with work i didn’t want to set a date and then have to step back or return prematurely to then backtrack.


pension payments I meant during the notice period, as I presume it would be 3 month gardening leave in effect.
just preparing myself, 
i just wanted a rough idea if I was being given a good deal or with 15+ years I should be asking for more.

guess the exact wording would be on the document. Union will also advise once I have the initial terms. Work will offer the first £500 to legal expenses for advice but in the same way that Hr are supposed to be impartial but really work on behalf of the firm, their appointed solicitor would probably work for them rather than me.. not sure as new to all this.

gm0

Assuming in good standing and this is just targeted headcount reduction by a medium/larger corporate who doesn't want to run a formal at risk process across a large group

My thoughts

The legal review of compromise is making sure you can't make an I didn't understand claim and go to tribunal as well.  It doesn't do anything you will find particularly useful.  It's not intended to support a negotiation.  Just a bored lawyer explaining the standard T&C if you find any inflammatory as a lay reader until so explained.

Check for future employment restrictions - should not be anything overly restrictive or long lasting. Unless your role was specialised and privy to product or corporate secrets where some reasonably could be applied.

It doesn't sound generous.  Paying you your notice. Paying you your outstanding leave.  And one month extra.  In fact that part sounds suspiciously low.  Lower than your likely statutory redundancy if they got rid of you via the role redundancy department at risk and VR/compulsory selection method.  So cheeky bordering on impudent.

Redundancy takes longer and would cost them more to keep you employed a bit longer while they run a formal notified redundancy process across a relevant group.  Given you are a target for this compromise agreement your name would be likely to drop out of such an exercise unless they exceeded the the numbers with volunteers.

So it is best to work out your statutory entitlement via redundancy and decide whether to push back by saying that this is inadequate.  "I don't understand this fully - I thought the point of these agreements was to encourage an easy voluntary severance with more than the statutory redundancy entitlement and no need to run the formal process".

A compromise agreement should in most cases from civilised employers be a better offer than this statutory redundancy minimum. With your service 4-6 months doesn't look at all out of the question over PILON and accrued holiday pay true up.

If there have been redundancy rounds prior and there is a bar of more generous terms than statutory - then although there is no legal basis to enforce it being "the same".  There is a precedent and expectations are set by it.  Clearly if the company is spiraling to financial destruction - subsequent rounds may be less generous and above statutory nothing much can be done about that.  Finding out from prior leavers anonymously will assist your negotiation.

They *can* of course agree whatever *you* will accept so it is in their interest that this be as low as possible.  Hence this initial position of one month.  It's not illegal - as your role is not being made redundant.  But it's sharp practice to offer you less than you would get via the other exit method.

They may well be expecting you to come back asking for x months extra instead of 1 - and settling for a number between the two rather than just signing off.  But they will be delighted if you just sign the current offer.

https://www.acas.org.uk/manage-staff-redundancies/work-out-redundancy-pay

You will have to decide based on what you know about prior behaviour and other leavers how much to push it and whether to focus instead on what is next.

They don't need to pay you redundancy as you are not being made redundant.  But you certainly can use the statutory redundancy amount as a marker - in the argument for why the compromise offer is currently unreasonably low for someone of your tenure and should be reworked. 

If you demur and don't sign understand what can they do based on employment law and your contract.

They likely need to go and run a redundancy exercise (2-3 months) and pay redundancy at statutory - or they need to find a dismissal for cause (gross misconduct) or dismissal on capability grounds - i.e. another route to target you specifically rather than a compromise offer. Most of these other routes take longer.  So they will prefer that you sign. 

Best to shake the tin make the comparison and get some more. 

The only scenario where this would be a bad idea is if they are truly aggressively awful people who will fire you unjustly for a fabricated gross misconduct and thereby damage your future employment prospects.  And leave you trailing off to tribunal to try and prove it was all smoke and mirrors and get a payday.  But your reputation is impugned at that point.

bigbars

gm0 said:

Assuming in good standing and this is just targeted headcount reduction by a medium/larger corporate who doesn't want to run a formal at risk process across a large groups

My thoughts

The legal review of compromise is making sure you can't make an I didn't understand claim and go to tribunal as well.  It doesn't do anything you will find particularly useful.  It's not intended to support a negotiation.  Just a bored lawyer explaining the standard T&C if you find any inflammatory as a lay reader until so explained.

Check for future employment restrictions - should not be anything overly restrictive or long lasting. Unless your role was specialised and privy to product or corporate secrets where some reasonably could be applied.

It doesn't sound generous.  Paying you your notice. Paying you your outstanding leave.  And one month extra.  In fact that part sounds suspiciously low.  Lower than your likely statutory redundancy if they got rid of you via the role redundancy department at risk and VR/compulsory selection method.  So cheeky bordering on impudent.

Redundancy takes longer and would cost them more to keep you employed a bit longer while they run a formal notified redundancy process across a relevant group.  Given you are a target for this compromise agreement your name would be likely to drop out of such an exercise unless they exceeded the the numbers with volunteers.

So it is best to work out your statutory entitlement via redundancy and decide whether to push back by saying that this is inadequate.  "I don't understand this fully - I thought the point of these agreements was to encourage an easy voluntary severance with more than the statutory redundancy entitlement and no need to run the formal process".

A compromise agreement should in most cases from civilised employers be a better offer than this statutory redundancy minimum. With your service 4-6 months doesn't look at all out of the question over PILON and accrued holiday pay true up.

If there have been redundancy rounds prior and there is a bar of more generous terms than statutory - then although there is no legal basis to enforce it being "the same".  There is a precedent and expectations are set by it.  Clearly if the company is spiraling to financial destruction - subsequent rounds may be less generous and above statutory nothing much can be done about that.  Finding out from prior leavers anonymously will assist your negotiation.

They *can* of course agree whatever *you* will accept so it is in their interest that this be as low as possible.  Hence this initial position of one month.  It's not illegal - as your role is not being made redundant.  But it's sharp practice to offer you less than you would get via the other exit method.

They may well be expecting you to come back asking for x months extra instead of 1 - and settling for a number between the two rather than just signing off.  But they will be delighted if you just sign the current offer.

https://www.acas.org.uk/manage-staff-redundancies/work-out-redundancy-pay

You will have to decide based on what you know about prior behaviour and other leavers how much to push it and whether to focus instead on what is next.

They don't need to pay you redundancy as you are not being made redundant.  But you certainly can use the statutory redundancy amount as a marker - in the argument for why the compromise offer is currently unreasonably low for someone of your tenure and should be reworked. 

If you demur and don't sign understand what can they do based on employment law and your contract.

They likely need to go and run a redundancy exercise (2-3 months) and pay redundancy at statutory - or they need to find a dismissal for cause (gross misconduct) or dismissal on capability grounds - i.e. another route to target you specifically rather than a compromise offer. Most of these other routes take longer.  So they will prefer that you sign. 

Best to shake the tin make the comparison and get some more. 

The only scenario where this would be a bad idea is if they are truly aggressively awful people who will fire you unjustly for a fabricated gross misconduct and thereby damage your future employment prospects.  And leave you trailing off to tribunal to try and prove it was all smoke and mirrors and get a payday.  But your reputation is impugned at that point.

Thank you for your inciteful response, that makes so much sense. 

They are definitely angling the dismissal on capability medical grounds, as they  were surprisingly pretty clear and honest about that as the possibility as alternative roles whilst I am wfh was being  offered as an option I’ve been told are not available due to restructuring so this option seemed a fake or token offer. when I queried how long it would last and what would happen to my salary and when I return to full capability I am assured to return to my role.

as most would understandably do, just like the issues I am having currently with post car accident valuations, they claim to have your best interest at heart and to be giving you a fair offer, even so much as to scare you by saying the due process would provide me no monetary compensation. I’m not at a level high enough where my reputation I don’t believe is a worry as long as they stay true to the claim that the standard reference would be issued if requested which I understand is a confirmation of employment duration but not terms of severance.

but like car insurance they will always low ball in the hope that you bite their hand off in gratitude, but like most In power, they rely on your ignorance to not rock the boat. I made a point to not question much but wait until I have it clear in writing, but initially I believe 15+ years should amount to more than 1 months pay even if it is tax free. The notice period and annual leave is the minimum they are required to pay. So I know I am worth more than 1 month.

The cost to them to press on with the capability route could be better for them but more costly for them, but no real benefit for me. And i would remain on their payroll whilst it is being processed which it seems they would rather not. As the last occupational health assessment I had last month acknowledged that I was not ready to return. Which they conveniently haven’t addressed with me and mentioned that I should have another one which sounds like to me… I don’t like their answer so we are going to do it again until we get an answer that we like and can work with. As I have had these every 4 months for nearly 18 months.

gm0

Ah different case then - the comparator - capability dismissal while off sick and assessed as realistically unable to resume duties is outside my experience.  No idea how long that process meanders.  Cannot be of help.

Key though is how long to dismiss on capability i.e. how long it would take from now for them to do this legitimately and not be easily challenged at tribunal.  How well your initial absence and assessments have been handled to date will of course feed into that. 

Good luck finding a way through this to somewhere that makes the best of a bad situation

bigbars

As wfh was available it was the prime reason I continued to work albeit in a wfh capacity , as well the focus of work helps direct and control my attention rather than mindless Aimless thinking. They did recommend that I take time off, under the guise of taking a break, mental health etc, but I’m not good without focus, mind goes wandering, I’m an overactive person in mind and body and loathe to take time off. I can’t relax which is one of my issues. I also realised when their demeanor and tone changed, that being signed off gives them an easier incapability route. Which is why they are now claiming I am not fulfilling my role. It opens the doors to not fit to work.

Dakta

Just a bit of a tangent, but a few questions for my knowledge:

Do you actually want to leave? (I'm presuming you're open to the idea with the right payment)

Do you feel you are working okay from home?

Are there any aspects of the job you can't do working from home? 

Have you been given any warnings or communications about your performance working at home to date, and given any opportunity to improve?

Even if you are doing all aspects of work from home, are there any other challenges (such as keeping up to date with changes, interacting with others etc)

Whilst it might not affect much, it seems from your opening post that they are/were happy to accommodate your condition however have made the decision now that it's untenable due to your productivity. So depending on your answers to the above, and given I've a hunch you might fall into disability? One of the thirst things I'd be asking myself is *how* they've quantified this. You said you don't want to get drawn into it, but the devil might be in this detail.  If you work in a service centre for example, do management keep dashboards or KPI's on staff? How do you feel your performance has been? have there been any informal indicators of your performance to use a potential yard stick? 

I don't think it's unreasonable to query this, whilst there's absolutely nothing wrong with a company or employee raising asking regarding a potential settlement offer, if the alternative is going down the capability route, and I'd presume from what you've said it will, these are questions I'd want to raise - because if you are being productive, there's a red flag here. 

Whilst I get that companies will need to ultimately work something out with employees that are incapable or unlikely to undertake their role fully in a reasonable time, and this isn't that unreasonable it just sounds to me like the basis they are using is a bit closer to a performance issue which you'd expect a discussion, support for improvements, and so forth before the company commits to it being an unresolvable capability matter.

bigbars

I think the performance claim is a red herring. As I have been and are performing to the same level as I have been throughout the wfh period. To me if it was accurate it would have been brought up in an official capacity during any of my many quarterly reviews which it hasn’t. This is why it threw me having a figure thrown up which is quantifiable but based on what benchmark, I don’t know. My kpi have been consistent my levels haven’t dropped. I obviously do most if not all the tasks that are remotely possible or easier, such as admin tasks, documentation, set ups that do not require a hands on approach.

I didn’t want to initially leave, I wanted to return in a full capacity and not in a half way house way. But the recent dialogue and the tone of the dialogue has changed recently, maybe out of impatience, who knows. But this has led me to believe that I am just a facilitator and a number and it is just fake concern about my well-being because regulations dictate that. The wording of some conversations made me reconsider the stance. The insistence on quickly to make decisions and meetings and responses raised red flags… why, the rush? 

So when the options were brought up, it made me think about my future, do I actually want to return into an environment where I am not really wanted and just there to do the work and be a number, do I want to be made to feel like a burden or a hindrance. Because that is what this recent episode is making me feel. How will I be received on my return.

am I honestly respected and appreciated or is it just because of what I bring to the table when I am there that is being missed. Answer to this one is twist we all go through at some point being a member of the rat race and office culture.

I know I am fully capable wfh other than hands on items which I wouldn’t say is as big a loss in the current working climate with remote capabilities.

no formal warnings, other than the threat of a performance review if I didn’t return. To which further medical evidence was provided, to me this was a clear episode for harassment as that idea disappeared once I had another occupational health assessment. That started to plant a seed that their actions are not really about my well-being.

I’ve always had negative comments about my interactions with team mates but that has been from day 1 as i am a different personality to others, where they like to talk freely about everything and everyone, I do not. As an example. So I have actually been consistent interaction wise.

I accepted the meeting as a courtesy but wasn’t aware of this direction. Clearly and they openly admitted they would rather the severance route, but saying it’s untenable barely explains much. To me, I can’t walk back into an office knowing that they don’t really care. People talk and could be talking and will be talking..

An analogy would be a football manager leaving by mutual consent, but not really given much of a choice, but why really?

now is to make sure I get financially looked after until I am ready to get a new role whether remote or I’m office or hybrid. It’s easy for them to say it is a generous offer, people always say they are looking after your best interests and it’s fair, but I have no knowledge or benchmark to gage that claim on.