Settlement Agreement / Severance Payment

Dakta

Your situation is different to mine, but there's also some interesting parallels.

I am not an expert with settlements, but purely as a matter of my own opinion, if it's not a good settlement, or if it doesn't work for you - walk away.

And yeah I think we're on the same page regarding performance. They don't want you working from home, I get that and depending on the setup it might not be unreasonable to want you back. If you're absolutely sure your performance is, shall we say for benchmarking purposes on par within a reasonable margin with peers for example then it opens their allegation of the situation being untenable to dispute. So whilst you don't really want to go into performance, this is probably the most worthy area to explore as it would undermine their argument.

Basically you may want, if you're confident to hit this head on 'why am I being offered a settlement or incapability procedings?'

'because your performance isn't tenable'

'how is that so?'

'you're only working at 20%'

'Can you explain and evidence how you've come to this assessment?'...

If you can, and are able, this would/could potentially compromise everything else that follows since they're using this as the basis...

Also how recently were your reviews? I would definitely keep note of any failure to raise performance concerns and not be afraid to reference that point. 

Also I'd monitor for any signs of undue pressure to accept a settlement, and I'd certainly take an hour to have a chat with ACAS (or consult a union). I don't believe their advice is always that thorough (they are volunteers after all) but it might help and is a good starting point. 

Also, it's time to swot up on company policy. Any capability proceedings is likely documented by policy so it's a good time to know the process.

I don't know if you fall into disability but this link has some good info on the area: https://www.acas.org.uk/supporting-disabled-people/capability-and-performance-when-someone-is-disabled

With regards to performance, I *would* expect in any case for your performance to be raised informally/formally, the concerns substantiated and given chance as well as support to improve before any formal actions are taken - the capability process should factor these in and not jump straight to a dismissal conclusion (one to watch for!) but from what you've said anyway the company does look like it is trying to state a case for you ultimately leaving your job, and if your performance is okay then seems a bit unfounded to me. 

From what I've read here I'd be taking advice and making prep to fight   (but keep an eye out for other opportunities). 

TELLIT01

Just make sure there isn't a comment in the reference along the lines of "I'm sure that once you get to know X you will value him/her just as highly as we have".  Seems perfectly innocent but it is heavily barbed!

bigbars

Flags were being raised in my head when it was brought so soon after the previous meeting, didn’t like the results of the occupational health assessment, so let’s go again, until we get a result we like, bless them, the occupational health doctor even admitted they were being requested because my employer thought I wasn’t fit to work at all, but I couldn’t use that information just made it so clear they want to “manage” me out by any means, by making such claims without it being minuted or raised in my quarterly reviews. 

 And the repeated insistence that this is a great deal…. Who would really say this is a bad deal to someone? And cleverly held for the without prejudice meeting, even though this to me is pressure to conform or else tone, by threat of a process which is claimed now on hold. I totally get why they are doing it. They want me back asap and are increasingly impatient for me to recover. I get it. But then don’t feign we’ll being and caring but on the other hand you must return. They tried the performance route last year, which mysteriously disappeared when I questioned the validity of the claim. 

This process has made me since realise, that HR are not neutral, they are for the business no matter how much they paint the picture of being for your best interests. Or your new best friend. Which made me curious as to the lack of tangible evidence, minutes, email and chat to protect themselves. From what I understand a settlement waives my right to pursue them, and also is a quicker way for them to draw a line.

Jude57

bigbarslj said:

Flags were being raised in my head when it was brought so soon after the previous meeting, didn’t like the results of the occupational health assessment, so let’s go again, until we get a result we like, bless them, the occupational health doctor even admitted they were being requested because my employer thought I wasn’t fit to work at all, but I couldn’t use that information just made it so clear they want to “manage” me out by any means, by making such claims without it being minuted or raised in my quarterly reviews. 

 And the repeated insistence that this is a great deal…. Who would really say this is a bad deal to someone? And cleverly held for the without prejudice meeting, even though this to me is pressure to conform or else tone, by threat of a process which is claimed now on hold. I totally get why they are doing it. They want me back asap and are increasingly impatient for me to recover. I get it. But then don’t feign we’ll being and caring but on the other hand you must return. They tried the performance route last year, which mysteriously disappeared when I questioned the validity of the claim. 

This process has made me since realise, that HR are not neutral, they are for the business no matter how much they paint the picture of being for your best interests. Or your new best friend. Which made me curious as to the lack of tangible evidence, minutes, email and chat to protect themselves. From what I understand a settlement waives my right to pursue them, and also is a quicker way for them to draw a line.

Just a few things that come immediately to mind:

What are your Union saying about the situation? There's no reason NOT to involve them as early as possible. If your workplace representatives aren't able to advise, they should put you in touch with your Regional full-time officer. If they don't volunteer this information, speak to your Branch Chair or check your Union's website for Regional Officer contact details. 

HR are part of the management structure of any employer, even if the HR function is outsourced to an external company. They are NEVER impartial and NEVER on the side of employees. I'm astonished that anyone would think they are.

While an employer may well offer to pay towards your legal advice, it's up to you to decide which solicitor to instruct, not them. The average High Street solicitor will not have the specialist knowledge or experience to be able to do the best job for you. To be iron-clad, a settlement agreement needs to be fully understood and agreed by both parties. For it to be uncontestable, independent legal advice is vital so your employer would be foolish to insist you use a firm they recommend. Again, if you involve your Union immediately, and if they support you, you'll be able to use the solicitors the Union have on retainer and these are specialist firms well versed in settlement agreements.

bigbars

Jude57 said:

bigbarslj said:

Flags were being raised in my head when it was brought so soon after the previous meeting, didn’t like the results of the occupational health assessment, so let’s go again, until we get a result we like, bless them, the occupational health doctor even admitted they were being requested because my employer thought I wasn’t fit to work at all, but I couldn’t use that information just made it so clear they want to “manage” me out by any means, by making such claims without it being minuted or raised in my quarterly reviews. 

 And the repeated insistence that this is a great deal…. Who would really say this is a bad deal to someone? And cleverly held for the without prejudice meeting, even though this to me is pressure to conform or else tone, by threat of a process which is claimed now on hold. I totally get why they are doing it. They want me back asap and are increasingly impatient for me to recover. I get it. But then don’t feign we’ll being and caring but on the other hand you must return. They tried the performance route last year, which mysteriously disappeared when I questioned the validity of the claim. 

This process has made me since realise, that HR are not neutral, they are for the business no matter how much they paint the picture of being for your best interests. Or your new best friend. Which made me curious as to the lack of tangible evidence, minutes, email and chat to protect themselves. From what I understand a settlement waives my right to pursue them, and also is a quicker way for them to draw a line.

Just a few things that come immediately to mind:

What are your Union saying about the situation? There's no reason NOT to involve them as early as possible. If your workplace representatives aren't able to advise, they should put you in touch with your Regional full-time officer. If they don't volunteer this information, speak to your Branch Chair or check your Union's website for Regional Officer contact details. 

HR are part of the management structure of any employer, even if the HR function is outsourced to an external company. They are NEVER impartial and NEVER on the side of employees. I'm astonished that anyone would think they are.

While an employer may well offer to pay towards your legal advice, it's up to you to decide which solicitor to instruct, not them. The average High Street solicitor will not have the specialist knowledge or experience to be able to do the best job for you. To be iron-clad, a settlement agreement needs to be fully understood and agreed by both parties. For it to be uncontestable, independent legal advice is vital so your employer would be foolish to insist you use a firm they recommend. Again, if you involve your Union immediately, and if they support you, you'll be able to use the solicitors the Union have on retainer and these are specialist firms well versed in settlement agreements.

Ive spoken to the union now it’s got to this stage. I didn’t request representation in the previous two meetings as I naively believed they were just regular check in meetings which they seemed to be for occupational health assessment and updates, but they were  in fact formal meetings, but then I had nothing to hide or be concerned about so thought against it. 

I did ask Hr if I required representation for the without prejudice meeting but they said no.

sorry, my naive self initially assumed HR were impartial, I’ve since been educated on how wrong I was, and my eyes being opened to their behaviour and language. You live and learn as the saying goes. Hr and management are your best friends whilst they can make use of you, when they can’t … that’s it. That’s what I’ve surmised and why I’ve reluctantly decided to leave.

The union regional office said they will offer advice once I get an indication of the offer and what happens in last weeks meeting , so I’ve updated them and waiting advice, my assigned officer only works Tuesday-Thursday. I’m eligible for union provided legal assistance so like you say, that would be more advisable than any employer offered one, HR offered the first £500 towards one.

Undervalued

bigbarslj said:

Jude57 said:

bigbarslj said:

Flags were being raised in my head when it was brought so soon after the previous meeting, didn’t like the results of the occupational health assessment, so let’s go again, until we get a result we like, bless them, the occupational health doctor even admitted they were being requested because my employer thought I wasn’t fit to work at all, but I couldn’t use that information just made it so clear they want to “manage” me out by any means, by making such claims without it being minuted or raised in my quarterly reviews. 

 And the repeated insistence that this is a great deal…. Who would really say this is a bad deal to someone? And cleverly held for the without prejudice meeting, even though this to me is pressure to conform or else tone, by threat of a process which is claimed now on hold. I totally get why they are doing it. They want me back asap and are increasingly impatient for me to recover. I get it. But then don’t feign we’ll being and caring but on the other hand you must return. They tried the performance route last year, which mysteriously disappeared when I questioned the validity of the claim. 

This process has made me since realise, that HR are not neutral, they are for the business no matter how much they paint the picture of being for your best interests. Or your new best friend. Which made me curious as to the lack of tangible evidence, minutes, email and chat to protect themselves. From what I understand a settlement waives my right to pursue them, and also is a quicker way for them to draw a line.

Just a few things that come immediately to mind:

What are your Union saying about the situation? There's no reason NOT to involve them as early as possible. If your workplace representatives aren't able to advise, they should put you in touch with your Regional full-time officer. If they don't volunteer this information, speak to your Branch Chair or check your Union's website for Regional Officer contact details. 

HR are part of the management structure of any employer, even if the HR function is outsourced to an external company. They are NEVER impartial and NEVER on the side of employees. I'm astonished that anyone would think they are.

While an employer may well offer to pay towards your legal advice, it's up to you to decide which solicitor to instruct, not them. The average High Street solicitor will not have the specialist knowledge or experience to be able to do the best job for you. To be iron-clad, a settlement agreement needs to be fully understood and agreed by both parties. For it to be uncontestable, independent legal advice is vital so your employer would be foolish to insist you use a firm they recommend. Again, if you involve your Union immediately, and if they support you, you'll be able to use the solicitors the Union have on retainer and these are specialist firms well versed in settlement agreements.

Ive spoken to the union now it’s got to this stage. I didn’t request representation in the previous two meetings as I naively believed they were just regular check in meetings which they seemed to be for occupational health assessment and updates, but they were  in fact formal meetings, but then I had nothing to hide or be concerned about so thought against it. 

I did ask Hr if I required representation for the without prejudice meeting but they said no.

sorry, my naive self initially assumed HR were impartial, I’ve since been educated on how wrong I was, and my eyes being opened to their behaviour and language. You live and learn as the saying goes. Hr and management are your best friends whilst they can make use of you, when they can’t … that’s it. That’s what I’ve surmised and why I’ve reluctantly decided to leave.

The union regional office said they will offer advice once I get an indication of the offer and what happens in last weeks meeting , so I’ve updated them and waiting advice, my assigned officer only works Tuesday-Thursday. I’m eligible for union provided legal assistance so like you say, that would be more advisable than any employer offered one, HR offered the first £500 towards one.

Just to clarify, for a settlement agreement to be binding the employee must receive independent legal advice from either a solicitor (who must have special insurance in place) or in certain cases a specially trained trades union rep.

It is customary (although not actually obligatory) for the employer to pay a sum towards that advice. Normally they will pay something like £500 which is enough for an average solicitor to do the minimum the law requires i.e check that the employee understands the wording of the agreement and the implications of signing. Normally if you want the solicitor to do more, such as negotiate on your behalf, you would have to fund the extra cost yourself. It would be your choice of solicitor, the employer doesn't provide one.

bigbars

Undervalued said:

bigbarslj said:

Jude57 said:

bigbarslj said:

Flags were being raised in my head when it was brought so soon after the previous meeting, didn’t like the results of the occupational health assessment, so let’s go again, until we get a result we like, bless them, the occupational health doctor even admitted they were being requested because my employer thought I wasn’t fit to work at all, but I couldn’t use that information just made it so clear they want to “manage” me out by any means, by making such claims without it being minuted or raised in my quarterly reviews. 

 And the repeated insistence that this is a great deal…. Who would really say this is a bad deal to someone? And cleverly held for the without prejudice meeting, even though this to me is pressure to conform or else tone, by threat of a process which is claimed now on hold. I totally get why they are doing it. They want me back asap and are increasingly impatient for me to recover. I get it. But then don’t feign we’ll being and caring but on the other hand you must return. They tried the performance route last year, which mysteriously disappeared when I questioned the validity of the claim. 

This process has made me since realise, that HR are not neutral, they are for the business no matter how much they paint the picture of being for your best interests. Or your new best friend. Which made me curious as to the lack of tangible evidence, minutes, email and chat to protect themselves. From what I understand a settlement waives my right to pursue them, and also is a quicker way for them to draw a line.

Just a few things that come immediately to mind:

What are your Union saying about the situation? There's no reason NOT to involve them as early as possible. If your workplace representatives aren't able to advise, they should put you in touch with your Regional full-time officer. If they don't volunteer this information, speak to your Branch Chair or check your Union's website for Regional Officer contact details. 

HR are part of the management structure of any employer, even if the HR function is outsourced to an external company. They are NEVER impartial and NEVER on the side of employees. I'm astonished that anyone would think they are.

While an employer may well offer to pay towards your legal advice, it's up to you to decide which solicitor to instruct, not them. The average High Street solicitor will not have the specialist knowledge or experience to be able to do the best job for you. To be iron-clad, a settlement agreement needs to be fully understood and agreed by both parties. For it to be uncontestable, independent legal advice is vital so your employer would be foolish to insist you use a firm they recommend. Again, if you involve your Union immediately, and if they support you, you'll be able to use the solicitors the Union have on retainer and these are specialist firms well versed in settlement agreements.

Ive spoken to the union now it’s got to this stage. I didn’t request representation in the previous two meetings as I naively believed they were just regular check in meetings which they seemed to be for occupational health assessment and updates, but they were  in fact formal meetings, but then I had nothing to hide or be concerned about so thought against it. 

I did ask Hr if I required representation for the without prejudice meeting but they said no.

sorry, my naive self initially assumed HR were impartial, I’ve since been educated on how wrong I was, and my eyes being opened to their behaviour and language. You live and learn as the saying goes. Hr and management are your best friends whilst they can make use of you, when they can’t … that’s it. That’s what I’ve surmised and why I’ve reluctantly decided to leave.

The union regional office said they will offer advice once I get an indication of the offer and what happens in last weeks meeting , so I’ve updated them and waiting advice, my assigned officer only works Tuesday-Thursday. I’m eligible for union provided legal assistance so like you say, that would be more advisable than any employer offered one, HR offered the first £500 towards one.

Just to clarify, for a settlement agreement to be binding the employee must receive independent legal advice from either a solicitor (who must have special insurance in place) or in certain cases a specially trained trades union rep.

It is customary (although not actually obligatory) for the employer to pay a sum towards that advice. Normally they will pay something like £500 which is enough for an average solicitor to do the minimum the law requires i.e check that the employee understands the wording of the agreement and the implications of signing. Normally if you want the solicitor to do more, such as negotiate on your behalf, you would have to fund the extra cost yourself. It would be your choice of solicitor, the employer doesn't provide one.

Thanks, let’s see what the agreement details as to whether I need to negotiate further. I’m just not sure what to expect as a fair deal if it is not termed as a redundancy.

Undervalued

bigbars said:

Undervalued said:

bigbarslj said:

Jude57 said:

bigbarslj said:

Flags were being raised in my head when it was brought so soon after the previous meeting, didn’t like the results of the occupational health assessment, so let’s go again, until we get a result we like, bless them, the occupational health doctor even admitted they were being requested because my employer thought I wasn’t fit to work at all, but I couldn’t use that information just made it so clear they want to “manage” me out by any means, by making such claims without it being minuted or raised in my quarterly reviews. 

 And the repeated insistence that this is a great deal…. Who would really say this is a bad deal to someone? And cleverly held for the without prejudice meeting, even though this to me is pressure to conform or else tone, by threat of a process which is claimed now on hold. I totally get why they are doing it. They want me back asap and are increasingly impatient for me to recover. I get it. But then don’t feign we’ll being and caring but on the other hand you must return. They tried the performance route last year, which mysteriously disappeared when I questioned the validity of the claim. 

This process has made me since realise, that HR are not neutral, they are for the business no matter how much they paint the picture of being for your best interests. Or your new best friend. Which made me curious as to the lack of tangible evidence, minutes, email and chat to protect themselves. From what I understand a settlement waives my right to pursue them, and also is a quicker way for them to draw a line.

Just a few things that come immediately to mind:

What are your Union saying about the situation? There's no reason NOT to involve them as early as possible. If your workplace representatives aren't able to advise, they should put you in touch with your Regional full-time officer. If they don't volunteer this information, speak to your Branch Chair or check your Union's website for Regional Officer contact details. 

HR are part of the management structure of any employer, even if the HR function is outsourced to an external company. They are NEVER impartial and NEVER on the side of employees. I'm astonished that anyone would think they are.

While an employer may well offer to pay towards your legal advice, it's up to you to decide which solicitor to instruct, not them. The average High Street solicitor will not have the specialist knowledge or experience to be able to do the best job for you. To be iron-clad, a settlement agreement needs to be fully understood and agreed by both parties. For it to be uncontestable, independent legal advice is vital so your employer would be foolish to insist you use a firm they recommend. Again, if you involve your Union immediately, and if they support you, you'll be able to use the solicitors the Union have on retainer and these are specialist firms well versed in settlement agreements.

Ive spoken to the union now it’s got to this stage. I didn’t request representation in the previous two meetings as I naively believed they were just regular check in meetings which they seemed to be for occupational health assessment and updates, but they were  in fact formal meetings, but then I had nothing to hide or be concerned about so thought against it. 

I did ask Hr if I required representation for the without prejudice meeting but they said no.

sorry, my naive self initially assumed HR were impartial, I’ve since been educated on how wrong I was, and my eyes being opened to their behaviour and language. You live and learn as the saying goes. Hr and management are your best friends whilst they can make use of you, when they can’t … that’s it. That’s what I’ve surmised and why I’ve reluctantly decided to leave.

The union regional office said they will offer advice once I get an indication of the offer and what happens in last weeks meeting , so I’ve updated them and waiting advice, my assigned officer only works Tuesday-Thursday. I’m eligible for union provided legal assistance so like you say, that would be more advisable than any employer offered one, HR offered the first £500 towards one.

Just to clarify, for a settlement agreement to be binding the employee must receive independent legal advice from either a solicitor (who must have special insurance in place) or in certain cases a specially trained trades union rep.

It is customary (although not actually obligatory) for the employer to pay a sum towards that advice. Normally they will pay something like £500 which is enough for an average solicitor to do the minimum the law requires i.e check that the employee understands the wording of the agreement and the implications of signing. Normally if you want the solicitor to do more, such as negotiate on your behalf, you would have to fund the extra cost yourself. It would be your choice of solicitor, the employer doesn't provide one.

Thanks, let’s see what the agreement details as to whether I need to negotiate further. I’m just not sure what to expect as a fair deal if it is not termed as a redundancy.

It depends on the strength (or otherwise) of your negotiation position, the company's normal policy in similar situations and to what extent (if at all) they want to be generous.

Provided they follow correct procedure it is perfectly possible to dismiss lawfully in cases of protracted sickness absence. Some companies will offer a settlement, either as a gesture of goodwill or simply because fighting a claim will cost them a significant amount even if they win. Other companies may have a policy of fighting almost any claim, even ones they are unlikely to win, as they feel it may deter others. A settlement agreement will have a confidentiality clause and most likely some kind of agreed reference. However, in the real world, both only go so far as such references inevitably shout "settlement agreement", particularly as it prevents the firm from answering questions from a prospective employer. Equally, if you twist more out of them than they are comfortable paying it is amazing what can leak out on the grapevine in many industries!

There is no easy answer and realistically a decent reference may be worth far more long term than a few months salary as a tax free settlement.

bigbars

The only real benefit i can see initially is that I will get a months pay tax free, as the notice period and annual leave is a given. I guess it could be said, that I get gardening leave as they dont expect me to work my notice period. But it seems a kick in the privates to leave after 15 years with just a months pay as a be gone and dont talk about this sweetener.

Undervalued

bigbars said:

The only real benefit i can see initially is that I will get a months pay tax free, as the notice period and annual leave is a given. I guess it could be said, that I get gardening leave as they dont expect me to work my notice period. But it seems a kick in the privates to leave after 15 years with just a months pay as a be gone and dont talk about this sweetener.

No sorry.

Any contractual entitlement (such as your notice and holiday pay) is taxable in the normal way. Only additional payments, up to £30K, that are not contractual entitlements (e.g compensation or payments made with out admission of liability) are tax free.

Whilst it is not your fault you are unable to continue for health reasons, it is not your employer's fault either. Unless part of your "package" includes a form of insurance for this sort of situation (sometimes part of pension) there is no entitlement to anything beyond your normal sick pay arrangements for however long that lasts.