Any employment lawyers in the house

Hi all. Odd first post I know, but this has been cleared with the moderation team.

I have worked at the same company for well over a decade. Whilst there I have been promoted multiple times and held a senior role. Then upper management changed, things got weird, it was announced that our department was being TUPEd and a lot of prior oddness around total disinterest from the powers that be suddenly made sense.

For the uninitiated – I’d never heard of it – the TUPE process means that your contract is transferred to another company. It’s a bit like redundancy, only without the redundant part. On paper nothing changes but in practice you’re working for a new company who don’t know you from adam; what doesn’t appear on paper is that you’ve just lost a decade and a half’s worth of goodwill, authority and respect.

The role the new company gave me was a support role they thought I could do. This isn’t wrong, but it’s a career I’d been promoted out of like a decade ago. I was doing support in the 1990s for god’s sake.

We were TUPEd at the start of the year. Around the same time my remaining parent fell terminally ill.

My disinterest in this thrilling new role coupled with my parent’s declining state of health along with a bunch of other crap going on at home too meant that I wasn’t exactly a model employee, but I was trying to hold everything down and make a decent fist of it. I’ve lost track of exact timescales because it’s all been a blur but somewhere along the way the wheels came off, my head broke, I waved a white flag far too late and said “I can’t do this, something has to give.” By this point work was giving me menial tasks and stuff that would normally take me hours was taking days. I spoke with HR – truth be told, I had a mental breakdown in front of HR – they said “you should talk to a doctor;” I spoke to a doctor who said “there is no way you should be in work” and signed me off.

My parent died in August. I went to pieces.

Throughout all of this I’ve been in contact with work. On the face of it they’ve been supportive. I expressed my concerns around the role, suggested that (in my heightened emotional state) whilst I understood exactly why they’d done what they’d done I thought it was frankly offensive to have me monitoring ticket queues &c and asked that they reconsider my role given that one of the things they were bigging themselves up about pre-TUPE was how great they are at moving people into jobs which they wanted to do. I was told that there was nothing else available.

I had my return to work interview last week. I came back with a positive attitude, “I’m feeling loads better now, I’ve given a lot of thought as to how we can make this work and I’ve got tons of ideas around how we can improve the business.” The upshot of which was, “don’t bother.”

They’ve offered me a lump sum to piss off quietly without telling anyone, which is broadly what they’re legally obligated to plus a couple of grand as a sweetener. They’ve said “it’s your choice whether to take the ‘offer’ of course” but it’s clear to me that the decision has already been made; it’s clear that the decision had been made some time ago, they’ve lawyered up (the offer is dripping with “or else…”); and if one were to be cynical then one might wonder whether the decision had been made before any of us were TUPEd in the first place.

Part of me wants to reject the offer just to see what would happen next, but if they replace their offer with “nothing at all” then that won’t pay 2024’s mortgage. Part of me wants to go down swinging just to give them a bloody nose. Something similar happened to me back in the 1990s when an employer did a hatchet job to replace me with someone on a lower salary, I’ve been cross with myself ever since about that but “woulda coulda shoulda” is all well and good when it’s in the past rather than the future.

So.

I don’t know what to do next for the best. I’m leaving however we slice it because my card is clearly marked. But they’ve effectively given me a day-one-demotion junior job that I can only assume they hoped I’d have just left out of frustration (constructive dismissal?), and then sacked me in all but name for being mentally ill due in a large part to bereavement with a side order of work-related stress (discrimination?). And that vexes me. But do I have a fight in me at all right now? Is that a fight I’m likely to win or at least get them to improve the deal on? I have no idea. Step 1 is dumping all this out of my head, hence this post.

I spoke with ACAS this week, they said that whilst they can’t offer advice directly they think I have a strong case under breach of the TUPE contract due to the effective demotion in the change in roles. They said that constructive dismissal is a non-starter because that would require me to resign (and is difficult anyway). There -may- be a case under the Equality Act.

Thoughts? Anyone know a good (cheap) employment lawyer?

Not a lawyer but have been in a moderately similar situation. It sounds like they want you out and you know you are going. They’ve offered you a compromise agreement (cash and no hassle to go) and honestly I’d look to taking that. The other option is to get legal but that is a pretty hard and long process. You could try negotiating the offer. If they want you gone then there might be some more money on the table.

Do the maths on what you need and how quickly you think you’ll get a new job. The offer covers that, bearing in mind you can stretch it a bit, then take the money and be happy to be out IMHO

I’d take the money, write a cv which reflects your ‘senior’ experience and get a new job.

Move on whilst you’re in a good head space and have a fresh start.

The ‘day-one-demotion junior job’ should have been dealt with as part of your consultation process during TUPE. Your mistake was not addressing it then.

.

Before you go legal, here’s my 2c: What outcome are you looking for, as you’ve acknowledged you’re leaving one way or another?

So, the question is money isn’t it? (What good is “proving a point” here?)

If so, how much would it take? Make a counter offer, “without prejudice” and offer to go quietly.

I’d agree with all the above, take the money and run. They don’t want you, you don’t want them so get out of there with some cash.
Definitely negotiate the settlement, I’d be surprised if they don’t find a couple of quid extra in some way (could be cash, could be a longer notice or more time in the garden, all are viable).
Legal can be a long, drawn out process with no guarantees. I’d take the cash

Have an initial consultation with a lawyer, but my first thought would be what they said. Take the money. Whatever fight you have won’t be worth the stress in the long run.

I was in a similar situation and got a months salary for every year I’d worked, plus a bit for the inconvenience, if that gives you any bearing on what to demand graciously accept

Go back and say you are taking advice on your legal position. Don’t say it’s on a bike forum.

Mention constructive dismissal and protective awards and see if there’s anything more in the piggy bank to make you leave without a fuss.

I found myself unexpectedly out of a job in April 2017 due to insolvency. It’s been the best thing that ever happened to me career wise. I was paid for my years of service and was forced off my comfy arse and into the job market for the first time in 26 years. It seems I was undervalued where I was…

You have an opportunity – take it.

What is the lump sum?  (No need to disclose the quantum just a % of annual salary).

I have been in a similar position.  Push them too far and they will go to tribunal (depending on how sensitive they are to negative PR). At this point they will be lawyered up so have nothing to loose.

If they have offered a years salary take it and enjoy six months of stress free life, assessing your situation and what you want to do next.

Your old job is finished so do what is best for your future (a bloody nose for your ex employer is not in your interest)

Been in a very similar situation. Work drove me to a breakdown, left site in an ambulance as I’d collapsed. Went to the doctors who signed me off, I was also due to go on leave for 2 weeks. Got towards the end of leave and realised I couldn’t access my email. Was then told to not attend work when I was due back but had to go to an off site meeting. I did wonder if they were doing the right thing and choosing a neutral venue to discuss how their behaviour had directky caused my breakdown. Nope, was told we were having a without predjudice conversation and basically i wasnt going back but they werent going to discuss terms at that point so I walked out the meeting and lawyered up. I was left with no doubt it was take the offer or be disciplined out, my performance hadnt been an issue before the new guy who caused the problems turned up (UK Ops director), in fact I’d had a big payrise and promotion based on me having already stepped into a more senior role a year earlier. Was sanctionned by the CEO and company based abroad, counted for nothing though.

Anyway futher comtact with them was to negotiate terms, they were useless my lawyer was pretty switched on and quite realistic. Best k could get was a years salary at tribunal but a full award was unlikely and costs would be high. He negotiated 6 months salary which was tax free, cost me £600, worth every penny. Lawyer actually asked me at kne pojnt if the HR manager was inexperienced and young so was that rubbish, she was in her 50s and had worked for multi nationals.

Anyway long story short, you’re out, dont over think the ways and wherefores, it’s not fair and employment law or being right wont help, it doesnt matter, your only goal now is to maximise the payout. Get the offer, if its 6 months or more (and up to £30k should be tax free) I’d take it and go. Less than that get legal advice pronto and get a lawyer to send a letter or 2.

Karma worked in my case, the git who destroyed me got sacked 12 months later, hadnt been there more than 18 months, now moved on again so im pretty sure it was him and not me.

Edit, some really good advice above, as you can see its a lot more common than you think so dont assume its anything to do with you or your abilities, shit situations happen.

Happened to me a long time back.

The best you can make of the situation is to leave with your head held high and your pockets full.

If there is a compromise agreement (which it very much sounds as though they are looking to pursue) then they should also pay for your employment lawyer support.

You can fight, but they have MUCH deeper pockets than you.

Normally, they don’t follow correct procedure (I’ve reviewed these processes in a few companies and it’s rare to see it followed correctly).

THere is a certain amount of time after a TUPE transfer where you should still be able to take any redundancy package that might have been on offer at the time of transfer.

If you can get anything close to 4 weeks per year of employment, then I’d take that as a big win. Try your luck at anything else (eg company car for an extra 12 months / keep the company mobile / laptop, compensation for foregone options / bonus, accrued holiday etc).

You should also get PILON (pay in lieu of notice), assuming you are not going to work out your notice and they are not going to expect you to. If they do, then stock up on some videos and an unlimited data package on your phone/ tablet, and google “malicious compliance”…

You want some element of gracious withdrawal – whilst they cannot libel you in a future reference, they can intimate to future employers that you (whisper) might not be good… Very hard to prove.

Clearly they view the relationship as over. You can dig your heels in, at which point they might well go down a performance management route. I’d not try.

I am very much not a lawyer though. This is one of those times where professional advice is worth its weight in sterling.

Anyone know a good (cheap) employment lawyer?

No such thing 

It sounds like

1) you want to leave

2) you are annoyed at your treatment

3) they’ve actually been quite good to you during your breakdown

4) they’ve offered more than you are contractually entitled to if you accept a compromise agreement.

I would also take the money. It’s not certain that you’d get any more at tribunal, or even if you have a claim.

In any event the stress and cost of tribunal and the amount of time (years) it would take to get a decision will not help you now.

If you’ve been offered a compromise agreement (sounds like you have) the company should also include an amount of money for you to consult a lawyer to make sure the agreement is fair and you understand what you are signing up to.

As others have said – its all about negotiating how much money to shut up and go away.  If as is usual they have mucked up the details then threatening tribunal could give you a bit of leverage.  Don’t accept the first offer

Sounds like a shit job in a shit company. How easy will it be to find a new job? Take the money, ride your bike, spend time with family, move on to another job starting fresh with no baggage.

If they have offered a compromise agreement the norm (so normal that I had assumed it was the law but I haven’t checked) is that they pay an independent solicitor to advise you.  Failing that you may have legal cover as part of a house insurance policy who can help.

What they will offer will depend how high risk you are of either staying and disrupting them, or taking them to tribunal.    Probably enough people here who have accepted one at some point to get an idea of what the “going rate” is.  I’d say it depends on the facts and circumstances – rumour at my last place was you got 12 months salary, but having been on the otherside of one it was not quite that generous: we paid equivalent of stat redundancy, plus three times their notice period, plus all untalented holidays (contractually that could have been forced to take in the notice period).

Gosh. Thanks all.

Taking tax into account, the offer equates to about 4 months salary if my sums are right. They’ve offered (apologies, I’m being deliberately vague) about 10k which they claim covers their backs legally as far as paying off outstanding leave etc goes, which is taxable like regular salary, then stuck 3k tax free I think on top. This feels low, but I have no idea.

As for what I want, I suppose I want to know whether “accept the first offer” is the right thing to do.

I would take proper advice. If they have offered 4 months and the advice suggests you have a case, say you have a case & explain why, but dont want the hassle so would accept 8 months.  As soon as they offered you a settlement it became a negotiation. You dont have to accept the first offer, but its how you dont accept the first offer which is key.  Good luck.

If they have offered a compromise agreement the norm (so normal that I had assumed it was the law but I haven’t checked) is that they pay an independent solicitor to advise you.  Failing that you may have legal cover as part of a house insurance policy who can help.

A compromise agreement (old name, now settlement agreement) is a legally binding contract between you and the employer in which you waive your rights to pursue an employment claim and as such if you haven’t had independent legal advice on it then you may still be able to take it to a tribunal (on the basis we aren’t qualified to understand the implications of what we are agreeing to). Hence it’s absolutely vital in the employer’s interest that you do have advice, ie: they should pay for it.
If you are paid in lieu of notice, that is taxable. You can then get tax free compensation (they’re buying you off from pursuing a claim) up to £30K, anything above is taxable as income. Beware, given where we are in the tax year – if you take PILON / anything above the compensation and it all arrives before end of tax year it will be taxed in that year, and could therefore be taxed in the 40% band. If it is paid in the new tax year and then you don’t for example earn for 6 months while you sort out a new job, then you may not reach that band, or not by as much in the tax year. Could be a substantial amount less /more tax.

I want to know whether “accept the first offer” is the right thing to do.

Oh, and no. It’s exactly what you said, a first offer. Negotiate, or pay extra to get the solicitor to do it for you using their knowledge and experience of similar situations (NB – employer will usually agree to a basic level of advice from the solicitor, not to fight your corner with them subsequently!!)

ie: they should pay for it.

Didnt know that!
Also on the Tax, yes can you arrange for payment after March next year (notice period etc)? Or can you put some of it into your pension?

JonV I did something similar 6 years ago and retired 😉

Factsheet: What is a Settlement Agreement?

Why do you need a solicitor for a Settlement Agreement?

An employment Compromise Agreement whereby you waive your rights to bring an employment claim can only be recognised in law if a solicitor or certified trade union or adviser signs it off.

A specialist Settlement Agreement solicitor will advise you on the merits of your claim and the amount of money you would be likely to receive at an Employment Tribunal. They will also identify any discrimination against you of which you might not be aware.

For example, you might be disabled and protected by the Equality Act and therefore entitled to reasonable adjustments before any dismissal can take place. In these cases, there will not only be an unfair dismissal claim, but also an amount awarded for injury to feelings.

Doesn’t say they have to pay for it but you must have it (or a qualified other person, eg: union adviser) – ergo if you refuse to pay for advice it ain’t legally binding so that’s a negotiable point that you should win pretty well 100% of the time.

JonV I did something similar 6 years ago and retired 😉

Hmm, yeah, I did it 5 years ago but only got enough to enable me to take a more enjoyable / lower paid job. And get out of a toxic work relationship (that technically I can’t talk about) that if I hadn’t been able to would possibly have seen me stepping off a station platform.

I got 3mo PILON, and then the stat minimum, 1 week per full year of service but not at my weekly rate, at the capped rate.

Oh, one other thing,

Naively perhaps, I thought that the conversations I had with HR were in confidence aside from the parts I mentioned about not being happy in the role. Is there anything to be had with this, shuold I ask for minutes ore something?

yeah, I did it 5 years ago

Did you!  Mine was more generous. 18 months IIRC. With no kids enough. Glad worked out for you & miss our rides.

Jon, that website looks excellent. Is it a personal recommendation or a Google result?

I think the real vital info in your post is the ‘no kids’ bit. Particularly with complex medical needs that have to be paid for, my early retirement plans are “a long way behind schedule”

Ah yes I get that totally from posts on here & well done on your approach mate. ATB.

(Sorry OP)

just a google result

Naively perhaps, I thought that the conversations I had with HR were in confidence aside from the parts I mentioned about not being happy in the role. Is there anything to be had with this, shuold I ask for minutes ore something?

Naively perhaps? You reckon?

Make no mistake, HR work for the company and their interest is in making sure you can be got rid for the lowest cost possible with no comeback on them. You should be able to ask for minutes but in reality, you should have asked for minutes to be made AND agreed with you as a record of your conversations, including if necessary having someone there with you to observe.

Learning for all – it starts as a ‘can I just have a word’ conversation but as soon as it looks like getting serious call a halt and know your entitlements. As per this evening’s other Employment thread, if it had been written down and agreed there wouldn’t be a second thread.

Just in case of doubt. HR WORK FOR THEM NOT YOU

Just in case of doubt. HR WORK FOR THEM NOT YOU

I had a conversation not so long ago where a friend said, “HR is not your friend.” Clue’s in the name, you’re a resource.

Naively perhaps? You reckon?

So it’s recorded or it isn’t, and if it is then a) shouldn’t that have been made clear from the outset and b) those details be made readily available to our Bedrock-based heroine?

Ideally, yes. But if you don’t have your own records or at least chance to agree them, or if necessary amend and then agree a set of notes at the time, then all you have is their version that some weeks later you now disagree with. Which is basically he said/she said, except rather than being all verbal, they wrote down and can point at.

Which is where an independent observer also comes in.

Or record everything on your phone…

Excellent advice above.

After my experience of a surprise ‘without predjudice’ conversation (which I did not even know was a thing at the time).

– Record everything, there will be ‘misremembering’ if it suits them

– HR are not your friend, they are there to reduce risk / stop the company getting sued

– Union (in my case) was pretty useless, get a proper lawyer

– The ‘unfairness’ creates a huge amount of stress, find a way of disassociating that from what you want the outcome to be

– Your card is not necessarily marked, but if you stay you are very unlikely to return to a role you enjoy

I was ‘surprise’ offered a demotion when my role was ‘deleted’ mid covid pandemic.  They would not even discuss redundancy or payouts as ‘it was not a redundancy situation’.  It caused me an absolute boatload of stress.  At the time it wasn’#t clear whether we’d all die from covid, let alone whether there would be jobs in the future.  With a large mortgage and 2 kids to support I took the demotion (which was argued wasn’t a demotion as it was the same grade, but had less pay….)

Anyway, I think the intention was to then try to bore me out of the job rather than pay me a reasonable redundancy.  After 3 months I moved internally away from the manager who instigated this, a few more months after that they left.   There has been a huge amount of churn at the company, and largely all the guys that remembered me in the more senior role have left, and it appears to be impossible to reclimb into that position.

Currently sitting tight, having had a procession of interims and new heads / directors come and go over the last 18months.

If there hadn’t been a pandemic, I would have pushed for redundancy and taken the money.  I wish I’d had the strength at the time to do it.  One things for sure, this company has burned any good will, which is ironic given the continual tripe they spout about caring about their people.

Hope you get your head sorted and the outcome you want, it is super stressful.

One things for sure, this company has burned any good will, which is ironic given the continual tripe they spout about caring about their people.

FTFY – caring about the people they care about. Once you’re not on that list, you’re a payroll cost to be negotiated around as cheaply and easily as possible

The company should pay your legal costs to have any settlement agreement checked by a lawyer, usually capped, used to be around £300, they don’t pay for your solicitor to send them threatening letters or provide you with advice on whether to go to a tribunal or not.

Without knowing your salary it does sound like a really low ball offer. Whatever notice period you are on is banked money, unless you do something really stupid and you get fired for gross misconduct they will have to pay that. Deduct what your take home pay for your notice period is from the offer, what’s left is the hush money. The longer they leave it the more it will cost them anyway as they will still need to pay your salary. So if they decide to try and go down the performance route that would be at least 3 months done proper so another 3 months salary plush notice. Be easier for everyone if they rolled up 3 months salary and your notice period into a settlement figure, they will end up paying that anyway and you get it tax free.

Be easier for everyone if they rolled up 3 months salary and your notice period into a settlement figure, they will end up paying that anyway and you get it tax free.

You have to be careful, PILON is taxed as income. Claiming that you mutually agreed to negotiate notice down to 1 week doesn’t wash any longer, and would be tax fraud. People say what’s the difference, good for company and you as you save Tax and NI but that’s nicking it off the state (yes, I know!!)

https://www.gov.uk/termination-payments-and-tax-when-you-leave-a-job/what-you-pay-tax-and-national-insurance-on#:~:text=You’ll%20pay%20tax%20and%20National%20Insurance%20on%20the%20part,re%20asked%20not%20to%20work)

Don’t forget to bargain in an agreed reference too. Preferably one that was for your old role and not your junior one

That’s where the settlement agreement comes in, effectively you are waving your employment rights including PILON in return for a consolidated lump sum. I do have some recollection of things changing a few years ago though so that if in your contract you had a reasonable expectation to PILON then a compromise agreement didn’t absolve you of paying it. This is why the OP needs to take proper advice. Initial consultation should be free, it cost me around £600 for a meeting, couple of letter and a number of phone calls. It doesn’t have to be really expensive unless you intend to fight it at a tribunal.

That’s where the settlement agreement comes in, effectively you are waving your employment rights including PILON in return for a consolidated lump sum. 

Taxman sees through that as tax evasion nowadays. When I was negotiating (with a lawyer) a settlement agreement it was made absolutely clear on that point, as I’d initially assumed it would be tax free and would have made a substantial difference to the value. 

effectively you are waving your employment rights

not exactly, you are waiving your right to make an employment claim. 

Hence it’s absolutely vital in the employer’s interest that you do have advice,

Well, it’s with my solicitor now, because the deadline is looming. Have I just lost the ‘tribunal’ bargaining chip?

ie: they should pay for it.

The offer in the agreement is £500+VAT.