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ralphrj
Original Poster
890 posts
60 months
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I am currently considering a compromise agreement to leave my current employer.
I was not enjoying my role so I am not unhappy to be leaving.
However, I am stuck in a stalemate position and the compromise offer will expire on Monday or Tuesday.
I have shown the compromise agreement to a solicitor who has pointed out that the company has failed to give an "on record" reason for the offer of a compromise.
My role is not being made redundant and I had never been made aware of any issues with my performance. As far as I can see it is a clash of personalities between my line manager and I.
My solicitor says that without knowing why my employer wants to terminate my employment they cannot advise if the ex-gratia sum I am being offered is reasonable.
I have asked my employer for their reason for me being offered the compromise agreement and they have failed to respond.
My original request was made by telephone last Thursday.
I followed that up with a further telephone call and email on Tuesday.
It was suggested in the second telephone call that I needed to get my solicitor to set out the request in writing but I have said that is ridiculous. Firstly, the reason must have been given to HR before the process started (this is not a small employer but one with 3,000+ employees). Secondly, the company will only pay £250 for an independent solicitor to review and witness the compromise agreement - writing unnecessary letters to request basic information will take my bill over that and have to be settled by me.
Does anyone have any advice on how I can move this along?
Should I suck it up and pay the solicitor to write pointless letters?
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Firefoot
1,450 posts
86 months
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You say you have not been dismissed or made redundant. So why are you leaving? Have they said that it is a case of leave under compromise agreement or we will discipline and dismiss you?
Your solicitor needs to know this to make an informed decision on the rate of compensation and to check the wording of the agreement. Having said that, the solicitor should be able to work out a suitable sum from your monthly salary. The company should suggest how much they are willing to pay and you negotiate from there.
The way most companies deal with a compromise agreement is as follows:
"It is to be noted that the agreement must make reference to the statutory provisions governing compromise agreements in respect of each complaint that is covered by the compromise agreement (see Lunt v Merseyside TEC Ltd [1999] IRLR 458, EAT). For example, if the compromise agreement involves a settlement of complaints of unfair dismissal and sex discrimination, the agreement must specifically refer to the conditions regulating compromise agreements in the Employment Rights Act 1996 and the Equality Act 2010 being satisfied."
Send this to your employer. It is from Croner employment law specialists and shows that you need to know the reason that the compromise agreement exists.
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davepoth
19,965 posts
68 months
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Walk straight into your HR person's office and request a "without prejudice" conversation. Chances are they don't want to go on the record about the reasons.
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Firefoot
1,450 posts
86 months
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Here you go, bullet point number 2 makes it a bit clearer for you.
Duties and Responsibilities
Where the parties enter into a settlement which satisfies the requirements in respect of agreements that are exempt from the prohibition on contracting out of employment rights, such an agreement will be capable of being binding upon both parties. This prevents the employment tribunal from having jurisdiction to deal with the matter which has been settled or compromised, and gives both parties the ability to take legal proceedings to enforce the settlement or compromise in question.
In entering into a compromise agreement, both parties will need to satisfy themselves that the wording of the agreement meets the technical requirements in respect of compromise agreements, specifically that the:
¡ agreement must be in writing
¡ agreement must relate to a particular complaint which has already been made or intimated
¡ employee or worker must have received independent advice from an advisor falling within one of the permitted categories of advisors
¡ advisor must be covered by a contract of insurance or appropriate professional indemnity arrangements
¡ advisor must be identified in the agreement
¡ agreement must identify the specific statutory provisions governing compromise agreements which have been complied with, and confirm that these conditions have been satisfied.
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ralphrj
Original Poster
890 posts
60 months
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Firefoot said: ¡ agreement must relate to a particular complaint which has already been made or intimated This is the bit that my employer has failed to do and won't respond to requests for them to provide. Firefoot said: You say you have not been dismissed or made redundant. So why are you leaving? Have they said that it is a case of leave under compromise agreement or we will discipline and dismiss you? I originally joined the company in a lower level role. During my time the role was restructured twice into one with more responsibilities. My employer wants a project completing in the next few months. Although I have been tasked with delivering the project I don't have the experience required to do parts of it as I have only been in the industry for a short period of time. The company wants me to leave and an interim (with the relevant experience) replace me to ensure that it is delivered smoothly. However, my role is not being made redundant (my replacement has already been found and has started). My line manager muttered something about "not wanting to go down the performance management route" when he offered the CA. However, no allegation was put on record of poor performance and I don't think that not having enough experience is a performance issue. The company has made an offer of pay in lieu of notice plus an ex-gratia payment. My solicitor cannot say if the ex-gratia is sufficient without knowning what the reason for me being offered a CA. Edit to add: Thank you for the comments so far - it is very helpful and appreciated.
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Odie
3,675 posts
51 months
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ralphrj said: Firefoot said: ¡ agreement must relate to a particular complaint which has already been made or intimated This is the bit that my employer has failed to do and won't respond to requests for them to provide. Firefoot said: You say you have not been dismissed or made redundant. So why are you leaving? Have they said that it is a case of leave under compromise agreement or we will discipline and dismiss you? I originally joined the company in a lower level role. During my time the role was restructured twice into one with more responsibilities. My employer wants a project completing in the next few months. Although I have been tasked with delivering the project I don't have the experience required to do parts of it as I have only been in the industry for a short period of time. The company wants me to leave and an interim (with the relevant experience) replace me to ensure that it is delivered smoothly. However, my role is not being made redundant (my replacement has already been found and has started). My line manager muttered something about "not wanting to go down the performance management route" when he offered the CA. However, no allegation was put on record of poor performance and I don't think that not having enough experience is a performance issue. The company has made an offer of pay in lieu of notice plus an ex-gratia payment. My solicitor cannot say if the ex-gratia is sufficient without knowning what the reason for me being offered a CA. Edit to add: Thank you for the comments so far - it is very helpful and appreciated. I think your company is trying very hard not to go down the 'Constructive Dismissal' route.
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McHaggis
7,785 posts
24 months
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Odie said: I think your company is trying very hard not to go down the 'Constructive Dismissal' route. I think Odie is right.
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StevieBee
4,266 posts
124 months
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All things considered, are you totally unhappy with the amount offered or is this a point of principal thing?
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tex200
188 posts
40 months
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put bluntly - the reason for your going is that you employer is saying that you are not competent for the job - this is the reason that your solicitor wants to know i would guess.
If you are not happy and wish to leave anyway, I would say sign whatever you have to and take the money and run.
otherwise stick with the job and they will have to invent a way to get shot of you.
It seems they are actually doing you a favour by offering you an incentive to leave.
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ralphrj
Original Poster
890 posts
60 months
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StevieBee said: All things considered, are you totally unhappy with the amount offered or is this a point of principal thing? I have a choice of either taking the compromise agreement or going back to work and potentially (as the company won't say but are implying) facing a performance management process. Without knowing explicitly what the company's issue is it is impossible for me to know if I should take the offer or stay and fight (i.e. I don't know if I am happy with the offer or not). Similarly, as it is a requirement that an independent solicitor reviews the compromise agreement and advises on the reasonableness of offer, without knowing the reason the for the offer they cannot advise me if it is a good offer or not. To illustrate it in some hypothetical examples: If I had been caught stealing then an offer of £100 would be more than reasonable as the alternative would be dismissal for gross misconduct. If I was being shown the door due to my gender/race/sexuality then an offer of £10,000 would probably not be reasonable as I would be likely to get much more at a tribunal. Without knowing the reason why it is impossible to say if it is good or not.
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ralphrj
Original Poster
890 posts
60 months
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tex200 said: put bluntly - the reason for your going is that you employer is saying that you are not competent for the job - this is the reason that your solicitor wants to know i would guess. Quite possibly but without stating their position my solicitor can't determine if: 1. they have enough to dismiss me immediately therefore I should take the offer, 2. they will put me on performance management which will take 3-6 months and at the end they can only terminate my employment with notice therefore the offer I currently have is insufficient, 3. they have nothing therefore the offer I currently have is insufficient. It is critical that the employer tells my solicitor their reasons as if the solicitor advises me incorrectly I can sue them. Hence, the solicitor won't sign the agreement without the reasons and the agreement isn't valid without the solictor's signature. Stalemate.
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rpguk
3,470 posts
153 months
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McHaggis said: Odie said: I think your company is trying very hard not to go down the 'Constructive Dismissal' route. I think Odie is right. Although it seems that they are setting themselves up for a constructive dismissal claim with this behaviour. OP - The solicitor works on behalf of the employee, despite being paid for by the company (who are doing so only through obligation). He'll be working to get a fair payout for you and his opinion on the matter should carry most weight. However my opinion as someone whose dealt with this kind of thing in and out of court as an employer is that it sounds like the employer has managed the situation poorly and as a result has ended up with you on the payroll without having any work for you. You are likely to end up without a job through no fault of your own and in the current economical climate I think you should feel no guilt in trying to negotiate the best possible deal for yourself. If the offer from the employer wasn't generous, I'd be inclined to to pay for the solicitors letter out of my own pocket. If the offer does get cancelled you keep your job. If they try and get rid of you through unfair 'performance management' - well with no previous issues on record and a dodgy attempt at a compromise agreement they've already provided good evidence for an unfair dismissal claim. The deadline on the offer is reasonable in isolation but combined with withholding important information does smack of unfairly pressuring you into making a decision without the full picture.
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ralphrj
Original Poster
890 posts
60 months
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rpguk said: some useful stuff This is my solicitors view - by failing to start the performance management process before making the offer they have prejudiced any future performance management process should I choose to stay.
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davepoth
19,965 posts
68 months
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ralphrj said: This is my solicitors view - by failing to start the performance management process before making the offer they have prejudiced any future performance management process should I choose to stay. Very much the case - you know they want you gone, they know you know, so if you don't take the money and stay, the working relationship is destroyed. Assuming you wish to stay at the company, I imagine you'd be put into the performance management process? I think if the result of that was dismissal, you'd have a very good claim at the tribunal and they'll know as much. IANAL, but since they end up paying their legal fees at the tribunal whether you win or lose, I'd be looking at the average cost of defending a tribunal as a minimum settlement. That's currently £8,500. http://www.telegraph.co.uk/finance/comment/9151613...You can always push for more. Make sure the reference is agreed too.
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StevieBee
4,266 posts
124 months
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ralphrj said: StevieBee said: All things considered, are you totally unhappy with the amount offered or is this a point of principal thing? I have a choice of either taking the compromise agreement or going back to work and potentially (as the company won't say but are implying) facing a performance management process. Without knowing explicitly what the company's issue is it is impossible for me to know if I should take the offer or stay and fight (i.e. I don't know if I am happy with the offer or not). Similarly, as it is a requirement that an independent solicitor reviews the compromise agreement and advises on the reasonableness of offer, without knowing the reason the for the offer they cannot advise me if it is a good offer or not. To illustrate it in some hypothetical examples: If I had been caught stealing then an offer of £100 would be more than reasonable as the alternative would be dismissal for gross misconduct. If I was being shown the door due to my gender/race/sexuality then an offer of £10,000 would probably not be reasonable as I would be likely to get much more at a tribunal. Without knowing the reason why it is impossible to say if it is good or not. OK. The reason I ask is that sometimes, it is best just to bin things and move on. There sounds like something is clearly amiss in their processes and you may well be the victim of bad management or similar. I've had a couple of friends and colleagues enter into fights to remedy cases where they have suffered in various similar ways. In all cases, they won but the amount they won wasn't that much more than they would have had had they accepted the situation as it was. Plus, the process of the fight was draining and caused more problems personally than the ruling in their favours solved. I'd be the last one to suggest anyone simply keels over at the first sign of a problem but life is about picking your fights wisely and life is too short for fighting tossers (individual tossers or corporate tossers). They way you write and the content of your posts suggests to me that you have your head screwed on the right way so as painful or confusing as the current situation is, try to look forward and move forward, both difficult with this hanging around. You will prosper! If you go this route, in the absence of a clear reason then you need to make sure they guarantee good references. Good luck! (and don't let the b  ds wear you down!)
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ralphrj
Original Poster
890 posts
60 months
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I am not unhappy to be leaving and I am confident on using the experience gained to my advantage in a future role elsewhere. I am not going to waste time and energy seething over it or attempting to get revenge.
However, at the moment I can't actually "move on" as:
1. without the information the solicitor can't sign the agreement,
2. if the solicitor can't sign then the agreement isn't valid.
3. if the agreement isn't valid then I don't get a severance.
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Firefoot
1,450 posts
86 months
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My suggestion would be that you pay for the solicitor to send a letter stating that you are unable to go ahead with the compromise agreement due to the company's failure to adhere to due process. This should not be a without prejudice letter as you will want to refer to this later on when they no doubt start the performance management process.
It may cost you £50 for the solicitor to write the letter for you, but would be worth it in the long run.
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edc
3,949 posts
120 months
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If you are happy and your brief understands the context and you want a quick resolution then simply put down resignation.
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ralphrj
Original Poster
890 posts
60 months
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Firefoot said: My suggestion would be that you pay for the solicitor to send a letter stating that you are unable to go ahead with the compromise agreement due to the company's failure to adhere to due process. This should not be a without prejudice letter as you will want to refer to this later on when they no doubt start the performance management process.
It may cost you £50 for the solicitor to write the letter for you, but would be worth it in the long run. Having considered it overnight I think that this is going to be the best option. Edit to add: Many thanks to everyone for their thoughts. I'll let you know what happens.
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Vee
2,299 posts
103 months
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Apologies if I've missed this bit . . .
How much is the net compromise offer in relation to your normal salary and notice period.
The reason for a compromise agreement is because your company is breaking employment law procedure. As a result it needs to be more than you'd get that if you went on gardening leave for example.
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