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taratill, Solicitor
Category: Employment Law
Satisfied Customers: 6466
Experience:  15 years experience of advising on employment law matters
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I have been offered a settlement agreement by my company.

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Hi, I have been offered a settlement agreement by my company. I am currently a Director in the company. The reason they have given is that the relationship between myself and my boss has broken down and the situation had become untenable. I have been trying for several months via HR to schedule a meeting with my boss to discuss and fix the issues but nothing has happened from his side. Since February this year I have countless examples of what could be considered bullying and harassment. I am now excluded on a regular basis, for example until 3 months ago I received a weekly report from my boss, which without warning and explanation he stopped sending whilst continuing to send to his other direct reports, when I asked if he had stopped sending it in an email to him, I received no response. Another example is that my mid-year performance review should have been completed by the end of August, when I asked my boss when he was planning to conduct it, I received no response. I would like to know my options and what the difference is between 'irreconcilable differences' and 'untenable'. I am the only party that has attempted to resolve the issues so I don't see how either terms could apply. I am tempted to reject the settlement agreement and go through the process to prove I have made multiple attempts to resolve the situation which has not been reciprocated by my boss. Thanks, D
Hello my name is ***** ***** I am happy to help you today. How long have you worked there for?
Customer: replied 2 years ago.

Hi Jenny,

I have worked there for 2 years, 7 months

I can understand your anger at the situation. The difficulty is that if they think that the relationship has broken down it will be very difficult for you to forge a situation whereby you will be able to remain in employment. You are asking what the difference is between 'untenable' and irreconcilable differences'? I'm not sure that there is one. If you were to be dismissed in the circumstances you describe it is likely you would be able to claim unfair dismissal and potentially you also have the right to resign and claim constructive dismissal.
When considering the settlement agreement the correct approach would be to consider what the likely compensation would be were you to bring an unfair dismissal claim. If the sum is much less than you can reject it or ask the solicitor you instruct to negotiate a fair settlement. If this cannot be acheived then you remain employed by the employer and you can claim unfair dismissal in the event they terminate your employment.
There is nothing wrong with you saying that you are not happy about the fact you have been offered the agreement and ask them what they propose to do if you do not agree to sign it. This might assist you in making a decision.
IF you have any further questions please ask. If I have answered your question I would be grateful if you would take the time to rate my answer. Thank you and all the best.
Hello is there anything further you would like to know about this as I note you have not yet rated my answer which is an important part of the process?
Customer: replied 2 years ago.

Hi Jenny,

Many Thanks for your reply, I will ask them today what they plan to do if I do not accept. I do have more questions though !

First of all, they continue to include the words 'Without Prejudice and subject to contract' in all written communication, even changing the subject line of my email when they respond to it. I understand this is so the details cannot be shown if this goes to a tribunal, is this correct ? Should I infact include this in my correspondence ?

The details of my settlement agreement are as follows:

- 3 months salary in lieu of notice (approx £23K before tax)

- A tax free lump sum of £25K

- 9/12 of my annual bonus entitlement, approx £13.5K before tax

- My company car must be returned by 26th October.

- Outstanding holiday will be fully paid.

I guess its not a bad offer, although I would not accept this for the following reasons.

- This works out to around 8 months money maintaining current standard of living, clearly we would make some changes. 8 months sounds like a lot but as I am now only about to start my search for a new role, I am certain I would be very lucky to find something similar in that period, its October now and Dec/Jan can almost certainly be written off.

- I am concerned as to how I would communicate why I left my previous company, a settlement agreement raises all sorts of questions like "Is he a trouble maker ?" Would you think they would be open to calling it redundancy or allowing me to go on gardening leave for 6 months ?

- I will really struggle without my car to attend interviews e.t.c, Do you think they would allow me to keep it longer ?

- I really think as a minimum I should be asking for 12 months salary plus bonus e.t.c. Is this unrealistic in your opinion?

I'll give you an example of one of the things my boss has done which has really started all the problems..

In February this year I was driving a hire car on a Motorway in Italy with my boss and one of my direct reports. My boss proceeded to dismantle the interior of the car, removing as much plastic as he could, he threw a piece at the other passenger and then folded in the exterior mirror so I could not see traffic on the right side of the vehicle, I actually have it on video. I told him I would not be putting the car back together, his answer was "I don't care, the car isn't in my name" he eventually did put everything back in place when we arrived at the rental car return facility. A few days later I sent him an email saying I found his behaviour very disturbing and unsettling. His eventual reply was "Thanks for the candid feedback, I will take time today to reflect on my behaviours, I have some initial thoughts on what was behind but I don't want to shoot from the hip" he then sent a further email saying "Having reflected on my behaviours during last weeks journey to the airport I am confident I have identified the trigger and on that basis I will avoid the same trigger in the future with a change to my routine. I apologise for my actions". I found this response totally unacceptable and raised it to the HR director who questioned if my boss was close to a breakdown. Then in March I had my 2014 YE review with my boss and he gave me a way over the top pay rise of 11.65%, full bonus and equity shares in the company which were not due until 2016, he was shaking as he gave me it and I felt it was money to silence me, I also raised this to HR.

This is just one of many examples, a word here or a remark or email there, which I have documented, I have confided in HR and tried to have them mediate to get myself and my boss around the table to sort the problems out, I have worked with my boss for 17 years (14 in my pervious company), he was the one that recruited me to my current company.

I do feel they simply want me to go quietly and want to avoid a review of all the events, my concern is I will not get a fair hearing, it is him that needs to be disciplined for his behaviours but I don't know who to trust in the company now.

Hi thanks for the further information.
As a starting point compensation for unfair dismissal would never exceed your economic loss so the tribunal would look at how long it would take to find a new job, subject to a duty to mitigate your loss. It is rare that an award would exceed 6 months salary unless the job is very unusual. On the face of it therefore the amount you are being offered seems reasonable. You can ask to retain the company car or be compensated for it for the period.
It is not abnormal for all correspondence to be marked without prejudice and subject to contract. You can also mark yours in the same way.
Many employments end in this manner and it should not present a particular problem. You can ask for an agreed form of reference to form part of the Settlement Agreement.
It is clear that you have been treated inappropriately by the employer and this is why they are offering a fairly generous settlement.
I hope that helps.
Customer: replied 2 years ago.

Hi Jenny,

Thanks for the reply, it all makes sense.

I do feel I need a meeting with my boss and HR (and my own independent person, perhaps another employee not in HR) to understand why they feel they do not want to solve the problems and to try and avoid this process. Do you think this would be a sensible first approach from my side ? If they refuse then I can ask them what they intend to do if I don't accept the response.

There is no way this can be an untenable situation if I am the only party that has tried to fix this.

I have felt very isolated the last few days and not really knowing who I can trust in the company but I should be entitled to advise from them shouldn't I ? considering I am still an employee.

Yes your approach does seem sensible.They may chose not to hold a meeting though and in reality there is little you can do. They are offering this because they clearly do not want to discuss/ find a solution.
However you are correct that you remain and employee and they owe you a duty of trust and confidence. You therefore could raise a grievance.
From a pragmatic point of view I doubt it is resolvable if they have offered the agreement. I am sorry that this is the case.
I would be grateful if you would now take the time to rate my answer as I am not otherwise credited for my time. I will be happy to answer your follow on questions.
Customer: replied 2 years ago.

Hi Jenny,

I have more questions.. Sorry ! You will get a great rating at the end though !

I was given the settlement offer on Friday last week and I tried calling the HR director I had been asking for support, he did not reply nor did he reply to a text I sent him asking for a call back. So I am certainly not getting support.

I am therefore thinking to ask for a meeting, if they refuse then I can ask what they plan to do if I do not accept the offer and I guess I could resort to sending an email including the VP for HR on circulation listing all the things my boss has said or done ? I don't want to resort to this but I really feel a need to get his actions out in the open. If they still wont work to solve the issues then I assume they either allow me to continue working (highly unlikely) or they do something else, I don't know what their options will be however.

So I could refuse and then raise a grievance which should mean all details come out ? Or could they then simply sack me leaving me no choice but to go to a tribunal ?

You need to be a bit careful. There is a fine line between raising a complaint and being seen as being disruptive. There is a possibility that if you are particularly difficult (may be perceived if you copy in vp) that they could try to build a case that you could be fairly dismissed for 'Some Other Substantial Reason'. If they could do this then you could find yourself in a position where you are not entitled to any compensation if you are dismissed.
By all means ask what will happen if you don't accept but I wouldn't try to 'out' the manager. I know what has happened to you is unfair but it happens. Be careful not to jeopordise your future because you are angry.
In your situation I think it is sensible to accept and move on.
Customer: replied 2 years ago.

Hi Jenny,

Thanks for the advice, I agree, copying in a VP and trying to 'out' the Manager is not the best idea I have ever had, and yes it is absolutely anger!

I think I will try the approach of asking for the meeting because I would like to understand the reasons for the offer being made and that I would like to understand the next steps if I choose not to accept.

I think anyway that they will reject the meeting and the answer to my question on next steps but for my own piece of mind I need to ask.

I have a meeting scheduled with a Solicitor tomorrow morning, I was going to ask about my options but I think you have covered that already. (The company have offered to pay upto £350 +VAT towards agreeing the settlement). So I will instead focus on the settlement agreement.

I do want to push for a little more money and more favourable terms and as such I was thinking of asking for the following:

- Paid gardening leave for 6 months (or I am willing to work which they wont accept) whereby I retain my company car at no cost to me, to aid my search for a new job. (It will be impossible without a car.)

- £30K tax free lump sum (I think this is the maximum that can be provided tax free and is equivalent to approx 6 months take home pay) plus outstanding bonus and holiday pay at the end of the 6 months or when I find a new position, whichever is sooner.

- Detailed pre-agreed reference.

- Agree that this is redundancy not a settlement as I don't want to have to explain to a potential employer that it was a settlement.

Does that sound reasonable ? At the end of the day, they want me out and don't want to run an internal process to hear my side of things.

Yes there is no harm in asking for those things. Hopefully they will agree to them.
All the best for sorting this out.
£350 should be enough to cover the cost of the advise under the agreement.
Customer: replied 2 years ago.

Jenny, thanks for all your advice, before I close this conversation do you know if there is a way to print it off ?

I think the only way is to do a screen print.
You should be able to access this after you close as it will show as a question if you log back in.
Please do remember to rate my answer before logging off: )
taratill and other Employment Law Specialists are ready to help you
Customer: replied 2 years ago.

Hi Jenny, I have just tried to give my rating and I get an error message saying 'Access denied, you do not have permission to view this page' after I click submit. Any ideas ?

Hi it has worked the question is showing as rated. Many thanks : )