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Ben Jones
Ben Jones, UK Lawyer
Category: Law
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My employer wants to offer me 4 months garden leave while I

Resolved Question:

My employer wants to offer me 4 months garden leave while I am on permanent contract. I don't wether it is a good offer to accept. What is your advice?
Submitted: 3 years ago.
Category: Law
Expert:  Ben Jones replied 3 years ago.

Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today. Do you mean they are trying to just introduce such a clause in your contract or actually to send you on garden leave now?

Please note I am mobile today so may not be able to respond immediately but will do so as soon as I have a permanent signal, thanks

Customer:

Hi Ben,

Customer:

There has been differents views in regards XXXXX XXXXX performances at work. I haven't resigned but thr employer was happy to find a compromise. Basically they want me to leave and offered me 4 months garden leave. I took time to think but I need to give a final decision by Monday next week. I don't know what to do as I have spoken to people which have advised me that I could potentially ask for a whole year salary. I have been emplyed since 3 and half years.

Ben Jones :

Many thanks for your patience. It is difficult to say what you may be able to get out of your employer because it not only depends on what potential claim you may have against them and the merits of such a claim, but also on the employer because only if they agree to it would you get such an offer.


 


Perhaps you could briefly explain what has happened that has forced the compromise to be offered? Also is the garden leave that is being offered something on top of your contractual notice period?

Customer:

Hi Ben,

Customer:

Thanks for getting back to me. According to them my performances have not been satisfaying for the last 2 months. There have been a lot of changes within the company and that has caused lot of uncomfortably.

Customer:

I have accrued a bonus at the end of this month after a loyalty bonus scheme that I have signed back in November az at that time the company suffered few resignations. The MD told me that the bonus was a gesture of a goodwill that he gave to me considering the good relationship we always had during these years. He also told me that he could have sacked me on the day we had the meeting (Friday) avoiding to pay me the bonus. Which was equivalent to 10% gross of my salary. I never had a written complaint but apparwntky he has enough on his table to dismiss me for gross misconduct. I really don't what to do. Part of me would like to try and get as much as possible since am on permanent contract. I am also on 3 months notice and he offered me a garden leave of 4 months, good references and he would also release me at any point in case of the opportunity of a good job. What to do? What do you recommend?

Customer:

Thanks in advance.

Customer:

Claudio

Ben Jones :

Thanks for the additional information. Deciding on what to do in the circumstances is always going to be difficult because it is impossible to predict whether the offer you have been given is the best available or if you would be better off rejecting it and fighting this further.


 


Now I see you mentioned that they are having issues with your performance, yet they also say they wanted to discuss you for gross misconduct. The two are quite different – if according to your employer you are simply underperforming, then this is not a misconduct issue – it is a capability one. A gross misconduct dismissal can only happen in the most serious of cases, such as if you have committed a serious act of misconduct, like theft, unauthorised absence from work, violence, gross negligence and so on.


 


A performance dismissal is treated differently and certainly would not be fair if the employer just went ahead and dismissed you without going through a fair procedure (you are protected against unfair dismissal so you have the legal right to expect the employer to show there was a fair reason for dismissal and that a fair procedure had been followed).


 


In order for a dismissal for poor performance to be fair, an employee must be warned that they need to improve, be given reasonable targets for improvement within a realistic timescale and be offered appropriate training and/or support during the monitoring period.


 


Generally, the reasonableness of such dismissals would be measured against the following criteria:



  • Did the employer have reasonable belief in the employee's incompetence;

  • Was the situation investigated and was the employee given the opportunity to voice their side of the story;

  • Was the employee aware of what was required of them in terms of satisfactory performance;

  • Were steps taken to minimise the risk of poor performance through training, supervision, etc;

  • Was a proper appraisal conducted and was the problem identified in a timely manner;

  • Was the employee told of the consequences of failing to improve and were they actually given the chance to improve their performance;

  • Did the employer consider offering alternative employment.


 


The above are just examples and what a tribunal would generally look for when deciding the reasonableness of a dismissal. If there is a genuine belief or evidence that the employer has acted in a rather heavy-handed manner and not satisfied at least some of the above requirements, the dismissal could be challenged.


 


So you could use the above and the fact they may not have followed this as a negotiating tool to try and get an improved offer. However, the issue is that the employer could withdraw their current offer, either dismiss you or start a formal capability procedure and then it would be down to you to challenge this and take it further. So whilst you are protected in the circumstances, it would be down to you to make the necessary claims and pursue the employer so it could be a long battle ahead, depending on how they deal with it and if they defend it.


 


If you were inclined to accept an offer from them, at least ensure you get everything you are contractually entitled to, such as full salary during the notice period, any bonuses due and also something extra on top to compensate you for agreeing to leave and giving up your rights.

Ben Jones :

Hello, I see you have accessed and read my answer to your query. Please let me know if this has answered your original question or if you need me to clarify anything else for you in relation to this?

Ben Jones and other Law Specialists are ready to help you