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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 48193
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I signed a share scheme that waived my right to take

Customer Question

I signed a share scheme that waived my right to take employer to a tribunal then got made redundant. My employer has withheld some bonuses from me I believe illegally and is now advertising role same as my job description with a different title. How am I best to proceed with addressing these issues?
Submitted: 1 year ago.
Category: Employment Law
Expert:  Ben Jones replied 1 year ago.

Hello, my name is***** am a qualified lawyer and I will be assisting you with your question today. Do you have the wording of the scheme where you waive these rights?

Customer: replied 1 year ago.
not with me right now - it's general advice I am seeking
Expert:  Ben Jones replied 1 year ago.

How long did you work there for and when did you get made redundant?

Customer: replied 1 year ago.
Hi Ben - sorry for the delayed reply.
My employment dates were 29/7/13 - 11/4/16. I was advised of the redundancy on 12/1/16 and placed on garden leave for a 3-month period. I negotiated an additional equivalent to 3-months compensation payment on the basis I believed I was coerced into signing the waiver of rights documentation 7 months earlier. Subsequently my ex-employer has withheld an entitled bonus payment from me and advertised last week for a role almost identical in job description.
Expert:  Ben Jones replied 1 year ago.

Thank you. My main concern is that this waiver may be unlawful and unenforceable. Your right to take the employer to a tribunal is a statutory one so you cannot just waive it by signing a waiver form with the employer. To waive your statutory rights certain legal procedures must be followed and you need to have been formally advised by a qualified legal adviser on the repercussions of giving up these rights. This usually happens in settlement agreements where you waive your rights to make a claim in return for receiving a settlement from the employer but for that to be legally valid you must have been properly advised by a lawyer. So it could be that this waiver you have in place is not legally enforceable, which could allow you to make a claim for unfair dismissal and the bonus in tribunal. Even if they do try and show it is enforceable, I am not sure if it just waives your rights to claim in tribunal or also in the county court? Whilst you cannot claim in the county court for the unfair dismissal, you can make a claim there for the bonus because that is a breach of contract matter. So there is still a possibility you could claim for the unfair dismissal and bonus in tribunal, or just for the bonus in the county court.

This is your basic legal position. I have more detailed advice for you in terms of the steps you need to follow to issue a claim, which I wish to discuss so please take a second to leave a positive rating for the service so far (by selecting 3, 4 or 5 stars) and I can continue with that and answer any further questions you may have. Don’t worry, there is no extra cost and leaving a rating will not close the question and we can continue this discussion. Thank you

Ben Jones and other Employment Law Specialists are ready to help you
Expert:  Ben Jones replied 1 year ago.

Thank you. If you want to take this to tribunal then you have 3 months from the date of termination to do so. However, a new feature in the employment tribunal’s claims process is mandatory early conciliation with ACAS. This requires prospective claimants to notify ACAS and provide details of their intended claim and they would then try to negotiate between the claimant and respondent to seek out of court settlement in order to avoid having to take the claim to the tribunal. It is possible for the parties to refuse to engage in these negotiations, or that they are unsuccessful, in which case they would get permission to proceed with making the claim in the tribunal.

If negotiations are initiated and settlement is reached, then the claimant would agree not to proceed with the claim in return for the agreed financial settlement.

The conciliation procedure and the form to fill in can be found here:

https://ec.acas.org.uk/Submission/SingleClaimantPage

In terms of the time limits within which a claim must be presented, the early conciliation process places a ‘stop’ on that and the time between notifying ACAS and them issuing permission to proceed with the claim would not count for the purposes of these time limits.

If you wanted to just go for the bonus in the county court, then whenever a dispute arises over money owed by one party to another, the debtor can be pursued through the civil courts for recovery of the debt. As legal action should always be seen as a last resort, there are certain actions that should be taken initially to try and resolve this matter informally and without having to involve the courts. It is recommended that the process follows these steps:

1. Reminder letter – if no reminders have been sent yet, one should be sent first to allow the debtor to voluntarily pay what is due.

2. Letter before action – if informal reminders have been sent but these have been ignored, the debtor must be sent a formal letter asking them to repay the debt, or at least make arrangements for its repayment, within a specified period of time. A reasonable period to demand a response by would be 10 days. They should be advised that if they fail to do contact you in order to resolve this matter, formal legal proceedings will be commenced to recover the debt. This letter serves as a ‘final warning’ and gives the other side the opportunity to resolve this matter without the need for legal action.

3. Before you consider starting legal action you may wish to consider sending a formal statutory demand. This is a legal request which asks the debtor to pay the outstanding debt within 21 days and failure to do so will allow you to bankrupt the debtor (if they are an individual ) or wind up the company (if they are a business). For the relevant forms to serve a statutory demand see here: https://www.gov.uk/statutory-demands/forms-to-issue-a-statutory-demand

4. If they fail to pay or at least make contact to try and resolve this, formal legal proceedings can be initiated. A claim can be commenced online by going to www.moneyclaim.gov.uk. Once the claim form is completed it will be sent to the debtor and they will have a limited time to defend it. If they are aware legal proceedings have commenced it could also prompt them to reconsider their position and perhaps force them to contact you to try and resolve this.

Whatever correspondence is sent, it is always advisable to keep copies and use recorded delivery so that there is proof of delivery and a paper trail. The court may need to refer to these if it gets that far.

Customer: replied 1 year ago.
Thanks for the advice Ben.
Is the date of termination the date I was told of redundancy or my end date of employment. Reason being that I was informed on 12 January and then placed on 3-month (my notice period) garden leave, meaning I was employed until 11 April.
Expert:  Ben Jones replied 1 year ago.

The date of termination is the date your employment actually terminates, this being 11 April