Lifting at work

[rhinochopig]

That sounds VERY like constructive dismissal to me.

[gaz1234]

I have just done my back in. Been off for a week.
What have you done?

[Super Slo Mo]

rhinochopig said:

That sounds VERY like constructive dismissal to me.

He's not been there very long though, doubt there's much else he can do about it. 10 weeks settlement isn't bad either really, I'd take it and run.

On the weight front, it is naughty expecting personnel to lift heavy weights into the back seat of a car, even 25 kg's could cause injury, depending on the strength of the individual, and the need to bend or twist whilst doing it.

Personally I'm happy to lift heavy stuff that's way over the guideline amounts, enjoy it even, but would never, ever expect anyone else to do it, as everyone's capabilities are different. That's why there are manual handling guidelines and regulations.

The 25 KG rule drops to 10 kg's or less depending on circumstances anyway.

[MrsMiggins]

tenpenceshort said:

They expressly refused redundancy as the paperwork is too onerous on them.

I suspect it's not the paperwork, it's the fact that the role isn't redundant and now they can hire a direct replacement rather than having to muck around changing the role just enough to get round the redundancy rules.

[tenpenceshort]

I totally agree that's what they intend, though it's not what they said.

I suspect the guy who took over running of the UK sales has a friend on mind for my old role.

It's all very frustrating, as the guy spent a year 'managing' the UK sales in 2012 and had to be taken off it, having being unable to keep hold of sales people and internal staff threatening to leave if he continued. I was expressly promised he wouldn't be reinstated to the role when the MD who hired me left.

Oh well, you live and you learn.

I'm hoping I can persuade them to pay me the one weeks notice through payroll as normal and the remaining £8000 or so direct to me as a settlement figure, as per our agreement.

[MrsMiggins]

Get it sorted then shop them to the HSE anyway!

[Spathodus77]

I think that by law this kind of activity should be risk assessed and the risk assessment documented. This will detail the hazards and risk control measures. If there is no risk assessment then the employer may be at fault, if there is a risk assessment and you are not following it you may be at fault (if there is a training record showing that you were aware of one). So, I'd ask to see the risk assessment and compare it the activity you are performing.

[egor110]

Have you been taught how to lift these items into your car?

[hidetheelephants]

egor110 said:

Have you been taught how to lift these items into your car?

Given 45kg cannot be safely lifted by one person that's an impossibility, never mind the dubiousness of being obliged to lift it in and out of the back seat of a car, which is an awkward access at best.

[Countdown]

MrsMiggins said:

tenpenceshort said:

They expressly refused redundancy as the paperwork is too onerous on them.

I suspect it's not the paperwork, it's the fact that the role isn't redundant and now they can hire a direct replacement rather than having to muck around changing the role just enough to get round the redundancy rules.

It costs them more to do it this way than to make you redundant but HMRC are wise to termination payments being disguised as Redundancy to avoid tax and NI.

[Zeeky]

This isn't constructive dismissal. It is dismissal. Only contractual payments should go through payroll. Settlements should be paid gross. The agreement can state that the employee is liable for any tax or NI on the settlement. Less than £30k is tax free regardless.

If you haven't taken legal advice on the effects and scope of the agreement then it is unlikely that you have waived your statutory rights by signing the agreement.

If you have back problems already then it is unlikely you will be able to claim for this having agreed to settle any potential PI claim.

[tenpenceshort]

Thanks Zeeky, that was my understanding. I've just got to figure out how to encourage them to do this (pay me the balance directly).

I'm presuming that whilst the agreement gives them no protection, as I was prevented from taking legal advice before signing, my settlement is protected. In other words they cannot renage on their obligations.

[Nezquick]

I'm not so sure that the "agreement" you have with them restricts you from also making a further claim for PI if you wanted to.

I'd also be very interested to see what their EL insurers made of their "offer to settle" as they've clearly gone way outside of their remit by offering to pay you the extra (or indeed anything).

As you've said above, you don't know how long your back pain is going to trouble you for. If this is a pain which is going to niggle you from now onwards, 6 weeks extra pay is nowhere near what you'd get with a PI settlement through a good firm of solicitors. It may be worth having a word with one to see what they say.

[andy-xr]

tenpenceshort said:

Thanks Zeeky, that was my understanding. I've just got to figure out how to encourage them to do this (pay me the balance directly).

I'm presuming that whilst the agreement gives them no protection, as I was prevented from taking legal advice before signing, my settlement is protected. In other words they cannot renage on their obligations.

Dan, if it's a compromise agreement, you have to have legal advice on it, otherwise it's not valid for them. They should, but dont have to, pay for this - couple of hours with an employment solicitor who tells you everything you already know, then handles it with the company

You want the payment ex gratia, which isnt subject to income tax and all that. It's a helper outer payment, pay tax on your 1wk notice, and the rest without any deductions

I used Sara Frisby at Morgan Russell, really good. And helped in negotiations too

[anonymous-user]

tenpenceshort said:

Thanks Zeeky, that was my understanding. I've just got to figure out how to encourage them to do this (pay me the balance directly).

I'm presuming that whilst the agreement gives them no protection, as I was prevented from taking legal advice before signing, my settlement is protected. In other words they cannot renage on their obligations.

How is it possible for them to prevent you taking legal advice?

In all honesty, I think you've done very well here. I'd take the money and find a job you can do.

[tenpenceshort]

andy-xr said:

Dan, if it's a compromise agreement, you have to have legal advice on it, otherwise it's not valid for them. They should, but dont have to, pay for this - couple of hours with an employment solicitor who tells you everything you already know, then handles it with the company

You want the payment ex gratia, which isnt subject to income tax and all that. It's a helper outer payment, pay tax on your 1wk notice, and the rest without any deductions

I used Sara Frisby at Morgan Russell, really good. And helped in negotiations too

Hi Andy, that's my understanding. They caught me out unawares and I was told "take it now, or our layers will dispute everything and you'll get nothing". I don't want any more than we agreed at the time, but I do want the agreement to bind us both properly and the settlement to be paid as it should.

[Zeeky]

If the agreement itself is void then neither party can enforce it.

If the agreement covers both employment rights and PI then the PI part of the agreement should survive and you can enforce that part of the agreement.

[andy-xr]

tenpenceshort said:

Hi Andy, that's my understanding. They caught me out unawares and I was told "take it now, or our layers will dispute everything and you'll get nothing". I don't want any more than we agreed at the time, but I do want the agreement to bind us both properly and the settlement to be paid as it should.

I doubt they'd go back on it, but they've left themselves wide open tbh for a claim later down the line

website said:

The settlement agreement will only become binding once you have received independent legal advice on it, usually by a qualified solicitor, and that solicitor has attached a certificate confirming the advice that has been given

http://www.settlementagreements.com/what-is-a-settlement-agreement/

[tenpenceshort]

I've put the documents to an employment lawyer, so will revert back as soon as I find out what my position is.

[tenpenceshort]

Zeeky said:

If the agreement itself is void then neither party can enforce it.

If the agreement covers both employment rights and PI then the PI part of the agreement should survive and you can enforce that part of the agreement.

The specialist advice I've taken is that my employer is not protected by the agreement, however I have common law rights to enforce the contract for my benefit (ie. The money).

Having spoken to them about this, my previous employer's response was 'we are not rewriting the agreement under any circumstances'. This leaves them committed to paying out but not protected from legal action later on. Which is an utterly bonkers point of view.