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Compromise agreement

 
Compromise agreement

Hi

Opinions sought on this situation...

I have been with my employer over one year in a full time position with no previous issues (always got good pay rises etc.)

I have some physical health issues which are likely to continue. Occ health have advised my employer that I am likely covered by the DDA. Workplace adjustments were suggested by OH, a few were made but simple things (like raising the monitor height) have not been done.

Employer's response to the OH report was to call a meeting and say that they intend to terminate my contract; if I don't go quietly they will begin performance management and intend to make things difficult.

I do have reduced performance and the suggested adjustments are linked to this so employer should reasonably expect performance to improve if they provide these adjustments. Also, the employer has given me a reduced workload and first raised concerns about performance when notifying me of their intention to terminate.

I have been offered a comp agreement with compensation of 2 months' salary as well as pay in lieu of notice.

I have consulted a solicitor who have described tribunals in a negative light (which I understand) and seem keen that I settle for an easy route to put this behind me. They were concerned that I would find it difficult to secure alt employment (due to ongoing disability) but that performance mgt may add stress to a difficult situation. I fear their advice is 'sign the agreement' whatever the circumstances.

My questions are: (1) Does it sound likely that the employer can fairly dismiss on the grounds of performance without providing adjustments and when giving me a reduced workload? How long would the process to dismiss fairly for performance (or capability) reasonably take?

(2) Does compensation of two months' salary sound ok? Any other CAs I've heard of have been at least 6 months + PILON.

thanks

katiez02

01/06/2009 23:48:25

The DDA does not give you protection fully. Based on what you have said, if reaosnable adjustments which would enhance your performance have been recommended and not carried out the, provided they are "reasonable" (don't ask - it's the length of a piece of string!) you may have grounds for unfair dismissla and disability discrimination. The length of a piece of string is also the answer to how long it would take to fairly dismiss! But I would expect more in terms of a settlement - two months is very low. I would advise a second legal opinion.

shikahra

01/06/2009 23:55:52

PS - I think your solicitor may be keener to put his fee behind him than in your interests here. Try to get advice from someone with employment experience - sounds like he hasn't got much experience of tribunals. I won't say they are fun or risk free, but I wouldn't suggest that they are negative - unless you have no case at all! You might also remember that an agreed reference is a good thing to include in a compromise agreement.

shikahra

01/06/2009 23:59:02

CA - deal or no deal?

Thanks for your reponse.

My employer wants an answer today to their CA offer. I am not happy with the terms but expect they will make life difficult if I return.

Do you have any knowledge on how long the ET process takes? My solicitor indicated that it would likely be 9-12 months to have the hearing, and that the employer then has 6 weeks to appeal.

katiez02

02/06/2009 09:11:21

Hi

It does sound as if you are being fed ill-informed 'advice' from that solicitor and it might be prudent to get a second opinion.

I don't think it is possible or even very realistic to make sweeping generalisations about how long a case might take to get to tribunal. Only by asking your local tribunal office might you get any meaningful answer and in any event the vast majority of claims get settled before they ever reach a tribunal.

The bit about employer appealing just mystifies me - appeals against tribunal awards are very very rare, not to mention exceedingly expensive.

It's you choice entirely, but setting you ultimatums like this sounds pretty dodgy to start with - just toughing it out, ensuring full evidence is generated and letting employer make the next move might be an option, but as stressed, it's your choice.

bubbles_once

02/06/2009 10:27:05

I agree with Bubbles. Your solicitor is certainly not advising you as I would! The "lists" for tribunals vary from area to area, and also depend on the complexity of the case (it takes longer to list a case that is estimated will need 5 or more days at hearing, than it does to list one that will take 45 minutes and can be squeezed in somewhere!). I suppose it is possible that somewhere like London or the South East, with a very dense population, may have a long waiting list. But I generally find that 6 months is more realistic a guess than 9 - 12 months. I would still advise a second opinion - and telling your employer that you have not yet made a decision. They aren't offering a compromise agreement out of the kindness of their hearts - they are doing it to avoid you fighting back and possibly winning. Surely you should make sure that you are fully and entirely satisfied that this is worth signing away all your employment rights? They cannot sack you on a first stage capability hearing anyway, and whilst you may be heading that way eventually, it also gives you time to collect more evidence of their failure to make the adjustments.

shikahra

02/06/2009 12:27:05

Thanks - I do feel like that my employer is trying to intimidate me. I have spoken to my solicitor again, and they have spoken to the other side's solicitor. My solicitor has not been able to negotiate a better offer and think my employer will dismiss me due to performance or capability. If I stay, my employer will begin performance monitoring now and dismiss 'fairly' sometime later - it's relatively easy to make the process look fair? Otherwise they may cite medical capability reasons, or even both. (My employer has a firm of solicitors on retainer as they do this a lot.)

Do you have any experience or thoughts on the performance management route - there are no performance targets in my role so my performance is pretty subjective and I am concerned that my employer may be able to easily dismiss through this route. If so I would lose any unfair dismissal argument which is likely to be higher value than a DDA claim (my DDA claim would be 'failure to provide reasonable adjustments' as they have failed to provide some simple things e.g. raising the height of a monitor - they have made some other changes but failed to provide most things suggested by occ health. My solicitor said that the fact they used occ health at all is in their favour.)

katiez02

02/06/2009 13:01:28

Using OH is not in their favour. The issue is whether they can substantiate good cause for not making reasonable adjustments (in other words, saying that they are not reasonable. Dismissal on performance grounds requires objective measurement - "I don't think you are doing well enough" doesn't cut any ice. And a dismissal on capability (medical) grounds requires then to make "reasonable adjustments" first - so this one is going around in a circle! Personally I wouldn't take what they are offering and would submit (if you haven't already done so) a grievance on disability and bullying (trying to force you to resign and take a compromise agreement) - then slam in an ET1 for disability discrimination. But that's just an opinion. Only you can decide if you have the strength and resources to fight this. In the end, it is down to you. You know the risks involved - you might loose. But you also might win a lot more.

shikahra

02/06/2009 13:55:05

Thanks again for your response and advice.

katiez02

02/06/2009 14:05:52