COT3 wording help

Masha_2

Hello, 

AI might not be getting it right

I have a claim in the employment tribunal with a subsidiary company A, which is noted as my employer, the respondent in my claim.

There is a parent company  B  that manages and decides on my overall employment and is responsible for all decisions and treatment referent to pleadings on my Claim, however I failed to name them in my claim. (in practice it’s a group and acts as one, have same management, HR, finance). As well there is a subsidiary company C that has been involved on the ongoing acts.

After uncertainty of the tribunal to let me add the other respondents to my claim, and because the issues continue (continuing acts of discrimination) I notified ACAS on the other companies involved in the decisions and treatment as well as one employee as individual.

The group -company B- on behalf of company A, has made a settlement offer. I accepted and provided my conditions and reference according to standard COT3.

The draft COT3 I received, does not mention the company B or C at all, but refer to them as subsidiaries, holding companies, group companies and subsidiary of any holding company.

The group consists of 4 entities in UK, 3 of them acts as one.

the agreement asks me to withdraw all current and future claims, and only then mentions the companies that I have to settle with.  Company B and C and the individual. 

I do not see that right. anyone here would know by sure?

Also, would you accept a wording in which it says:

“If the either party breaches any material condition of this Agreement, they agree to indemnify the other party for any losses, suffered as a result thereof, including (without limitation): a. damages b. all reasonable legal and professional fees incurred; and c. the repayment of the Settlement Payment (if already paid by the Respondent to the Claimant). Upon any breach, the non-breaching party may be entitled to terminate this Agreement and pursue other legal remedies available to them.

I will appreciate any kind comment around this out of experience and founded views.

Many thanks

Savvy_Sue

Are you not getting some paid for legal advice on this?

Masha_2

No, COT3 does not require. and I am not arranging for one.

LightFlare

Sounds as if it might be worth considering getting some professional assistance 

Undervalued

Masha_2 said:

No, COT3 does not require. and I am not arranging for one.

It may not require legal advice (unlike a settlement agreement) but that doesn't mean it isn't sensible to get some!

Obviously it depends to some extent on how much money is involved. Obviously if you are completely happy with what is on offer, fully understanding that if you agree that is the end of the matter and you cannot "go back for more" then perhaps you don't need to seek proper advice?

ACAS are, at best, a neutral broker in this, they are not a substitute for a solicitor looking after your best interests.

Be very careful what you say on the phone when discussing this with ACAS as it is apparently easy to make a legally binding agreement to the COT3 without intending to!

Masha_2

Undervalued said:

Masha_2 said:

No, COT3 does not require. and I am not arranging for one.

It may not require legal advice (unlike a settlement agreement) but that doesn't mean it isn't sensible to get some!

Obviously it depends to some extent on how much money is involved. Obviously if you are completely happy with what is on offer, fully understanding that if you agree that is the end of the matter and you cannot "go back for more" then perhaps you don't need to seek proper advice?

ACAS are, at best, a neutral broker in this, they are not a substitute for a solicitor looking after your best interests.

Be very careful what you say on the phone when discussing this with ACAS as it is apparently easy to make a legally binding agreement to the COT3 without intending to!

Thanks Undervalued
I am more or less aware of all the legal aspect around it and how the proposed cot3 is one-sided and protective on the respondents. 
the compensation is notable, but a lot less of the value of my claims. but my actual reason is that I do not wish to continue because of health and what all this implies in my life. 

it's more of a decision to take on my side. Legal advice at this stage would be unrealistic and really time wasting, my case is of a very complex.

Under the current proposal, due to the undefined names, I risk that the settlement allows them to do whatever they want, including not guaranteeing to provide reference if some information comes to them that would make them consider not to! and surely I wont agree to give back monies, however on other hand of course I won't break any of the clauses and do not want to go. I think there is a slight risk. but also, true, for me and for them, a court process would be difficult. I want to believe they want a closure on this too. 

ACAS doesn't even look at the transparency of the agreement. won't read or provide an standard COT3. I had a previous proposed COT3 months ago which clearly was very detrimental on my side, but they only encouraged me to consider the settlement and accept it. 

Juliette100

Your cot3 should only name company A as that is who you had the ET1 against. 

The additional wording is standard re breaching the agreement 

Masha_2

Juliette100 said:

Your cot3 should only name company A as that is who you had the ET1 against. 

The additional wording is standard re breaching the agreement 

Are you sure, the notifications on ACAS is for the other 2 company names as well. this is because they are directly involved in the treatment I received. 

Undervalued

Masha_2 said:

Juliette100 said:

Your cot3 should only name company A as that is who you had the ET1 against. 

The additional wording is standard re breaching the agreement 

Are you sure, the notifications on ACAS is for the other 2 company names as well. this is because they are directly involved in the treatment I received. 

Back on 31 Jan, in a reply to my earlier post, you said "Legal advice at this stage would be unrealistic and really time wasting, my case is of a very complex." However this question shows just how difficult it can be without.

Your other thread has questions about the wording of an agreed reference.

To be honest, depending on how much money is involved, I think you either have to "go with the flow", get a COT 3 agreed, put the money in the bank and move on, or spend so money on a proper legal assessment of the strength (or otherwise) of your case.

Keep in mind the level of stress involved in fighting, that there are two sides to every argument and that most employment tribunal awards are for comparatively small sums of money - far less than most people realise. 

Finally, even if you go to tribunal and win they have no power to order a reference. That can only be guaranteed as part of a settlement.

Masha_2

 Thanks a lot for your valuable comments. I have other important question. not sure if I have to open another thread.
It was settled. I did so solely for my health recovery.

Because the settlement did not included the return of laptop and I never had a contract of employment in written. I know I am not legally obliged to return it, I assumed this was a little detail that it was implicit in the settlement negotiation that after the signature there was nothing else pending between the parties, apart of the agreed bit. 
but I received an email from solicitors requesting it to return. 

My plan is to make a request of a good gesture, but of course I am prepared to returned if they were to decline. 
Data in the computer was already given to me through SAR.

The policy in the company was when a laptop was returned it had to be reset. 
I do not trust them in any way, although they cannot accuse me on anything on any data in the laptop if they access the laptop, they could invent something to accuse me for, I am just fearful, and they have still to pay me by next week. 
but my question is whether for security, and maybe for good data protection practice, as well as for my protection I should maybe return the laptop already reset. will that be too risky to do? I am thinking that giving the computer as it is containing confidential information the could construct something, and less risky if the computer is already reset. 

gm0

If you have a something which was issued by them and is genuinely a company asset (likely with at least something of their intellectual property on it).  i.e. they issued it or paid for it.  Absent a fully explicit agreement to the contrary for you to keep it.  Assuming it might be OK to do so would not be that.  Return of all IP on leaving is a common contractual obligation of employees.  As is return of company assets.  And they have asked for it now.

Returning it at the end of employment.  Without quibbling.  Would be completely normal. 

Now to protect you - some evidence of delivery/receipt obtained at the time to avoid dispute later. That is undoubtedly the best approach.    Creating further argument about it or attempting setting more conditions from healthy (or unhealthy) suspicion is NOT.

Even if all that will happen is that some IT support function wipes it and it is disposed of in the 2y market for such things once old.  Personally I would make/have an appointment to return it around the end of a contract/employment.  Take it in.  And then absent being offered a receipt. -I'd take a picture of it and of me delivering it on that day.  If there is any ambiguity about what happens to it next - or the mailroom/reception/IT bod providing me with a "receipt" for handing it in. 999/1000 that's the end of it.  1/1000 it goes missing or disposal doesn't get properly recorded and the asset "system" (list/person/actual database) still thinks I have it due to that mistake made by others.  But dead easy to rebut the 1/1000 acting prudently.  Appointment, photo / receipt.  Or you courier it back with delivery tracking.  And take a picture of the thing (and the label) on shipping, keep the receipt.  Cheaper to walk it in and take a free phone picture with record of the appointment on personal email.

Now if you have personal information on the laptop which belongs to you - correspondence about your disputes/case or otherwise.  Then I would ALSO consider using a "Hard" delete technique (multiple overwrite tool) on my personal files only.   I'd leave their OS build etc. And work files. 

I would not get into a pointless debate about security practices and what is or is not acceptable by pulling ideas out of my backside. What matters is their policies - however good or bad and whether implemented well or badly.  You have ZERO business just making stuff up.

Delete (any) personal data (properly).  Give the rest (work data, machine, os) back promptly

This dual approach avoids personal files being at risk of improper data destruction and handling of the machine - where your personal information escapes.  You don't control what happens once you give it back.  Nor should you debate that with them.

So wipe (just that - personal data you care about - not their work related stuff nor machine build before returning it. 

They don't get anything you don't want to them have. 
They get their property back (unmolested)
And you no longer have any of their IP post employment. 

They can protect their own laptop build, other intellectual property (if any on it) as well or badly as they choose.  It's their issue at that point - not yours.

If you believe they would basically invent further evidence of wrong doing to harass you further - then that - to be honest - is a separate suspicion which doesn't provide you with ANY legitimate justification to FAIL to return their assets and IP. 

Given they have written formally asking for it and the agreements are silent in terms of contradicting that.  It needs to go back promptly and without further mucking about by you based on stuff you made up in your head. 

The response to the request is a delivery to who, where and when question - about return.  Checking the personal information thing.  And doing it.