Employment Lawyers Can Answer Your Employment Law Questions
i would like to know where I stand legally ?
Hello again. I empathise with the position you have found yourself in and it is certainly not the first time I have come across a similar situation where employees are given a difficult decision of either accepting an agreed exit or facing formal action that could eventually result in their termination.
As far as the law stands, the initial act of offering you a compromise agreement is allowed and the employer is able to come ‘off the record’ and make you an offer ot leave, without you being able to bring it up in any future proceedings against them. So they cannot really be blamed for making this offer, but of course you are able to refuse it.
When it comes to your rights in relation to dismissal, if an employee has been continuously employed with their employer for at least 2 years they will be protected against unfair dismissal. This means that to fairly dismiss them their employer has to show that there was a potentially fair reason for dismissal and that a fair dismissal procedure was followed.
According to the Employment Rights Act 1996 there are five separate reasons that an employer could use to show that a dismissal was fair: conduct, capability, redundancy, illegality or some other substantial reason (SOSR). The employer will not only need to show that the dismissal was for one of those reasons, but also justify that it was appropriate and reasonable to use in the circumstances. In addition, they need to ensure that a fair dismissal procedure was followed and this would depend on which of the above reasons they used to dismiss.
So before the employer considers dismissing you, they must show there was a fair reason to do so and that it was reasonable in the circumstances. To do so they would really need to be looking at something that amounts to gross misconduct and to be honest I cannot see that applying here. There may be some friction between you and other employees but this is not gross misconduct. The employer should consider moving you for example or trying other ways of diffusing the situation before dismissal is contemplated and if they just proceed with a dismissal it could amount to an unfair dismissal.
If that was to happen, you would have a potential claim for unfair dismissal, however to make it you would need to go to the employment tribunal, pay the required fees and build a case against them. Once a claim is made you may find yourself in the same position you are in now – the employer making you an offer to drop the clam. If you then refuse to accept their offer you would need to proceed to a full hearing and hope you win, then claim compensation, which could or could not be better than what was originally offered. So there are risks involved as you can see.
So if the employer is adamant that they want you gone, you can use that in your favour to try and negotiate a better payout. You may love the job but I can promise you it may not be that good if the employer wants you gone and it may worsen things over time, making it unbearable sooner rather than later. So you need to consider what is best for you in the long term and that may well be an agreed exit but only once an appropriate level of compensation is reached. So use their determination to try and remove you, together with the fact their reasons for a potential are likely to be weak to negotiate an improved offer, which you could eventually accept. If you are adamant you do not want to leave now than you will have o face the potential consequences of the employer’s intentions to dismiss you anyway and then start a a legal fight.
thanks Ben . i have 2 days to think about it and as you say ultimately even if i love the job , if they want rid of me they are probably going to make my life unpleasant even if it is in subtle and insidious ways so think i will take your advice and see a local solitictor to try and negotiate harder on my behalf. I cant stop crying and my friends and family are asking me to go and get some advice from my GP as despite my employer being warned by the occupational health doctor to support me and reduce stress for me at work , my family feel that my employer has handled this in a way which has increased stress on me rather than reduce it , especially as it is well documented by other colleagues over the past 3 months how hard I have tried to find a way forward with this employee who has raised the grievance against me and therefore any complaint against me should have been dealt with in a far more sympathetic and informal way to minimise the stress and show support to me in what they recognise is a situation not of my making. thank you
Yes I agree and employers have a duty under health and safety regulations to ensure their employees are protected against such things like stress and whilst it is easier said than done as most jobs can be stressful, if there are obvious things they can do to at least reduce that they should be expected to do so. You may use their failure to do that as a further negotiating tool to try and get an improved offer
Appreciate your impartial advice as my head is so confused and just cannot think straight .The pressure has been relentless since this all kicked off just a week ago and i really am exhausted emotionally . Thanks
you are welcome, take the next couple of days to think about it, without putting too much pressure on yourself
can they force a decision so soon or can i ask for longer so i have time to see a solicitor locally ?
they can ask for an answer as soon as they want but once you have agreed to go ahead with it you are legally required to seek legal advice anyway so that won't be the end of the process
thanks Ben .
you are most welcome