With the country plunged into another lockdown and facing yet more uncertainty, dismissals are on the rise, this is despite the extension of the furlough scheme. Many are understandably anxious about the future and about job stability.
Companies are also having to contend with difficulties and are making tough decisions – in some cases to ensure their survival. As a result of this there has been a significant increase in the number of employers trying to ‘fast track’ dismissals, including by alleging performance issues, where non exist or raising spurious allegations of misconduct.
Employers are also having early conversations with staff about the possibility of redundancy and proposing a mutually agreed exit by way of a settlement agreement, this is often done well before any redundancy process has started or even been suggested.
If you find yourself in such a situation, it can be intimidating and stressful. Particularly as employers tend to use tactics to pressurise employees into quickly accepting a mutual termination.
Such tactics can include:
- Setting a short deadline for you to accept the termination proposal and threatening to withdraw it if you don’t;
- Threatening to start performance management or disciplinary proceedings against you, with the suggestion that this could be damaging your career and or result in a poor reference to a prospective employer; or
- Offering to pay more than your redundancy entitlement, expressing that if you are made redundant you will receive less.
Importance of legal advice
If you find yourself in such a position, don’t panic. The threat might not be real. But to understand where you stand and to assess the risk, you should seek legal advice. A lawyer will be able to identify any legal arguments you have, and how to use them to strengthen your position and achieve the outcome you want. This could include negotiating a better exit deal, avoiding disciplinary action or a dismissal.
Once you understand whether or not your employer has legitimate grounds to dismiss you, subject you to a performance management or a disciplinary process, you will be better placed to consider whether the settlement offered is fair and should be accepted or challenged.
However, given the uncertainty about the future and the ability to secure a new job, there can be an understandable reluctance to spend money on legal fees. You may have concerns about jeopardising the offer, want to avoid protracted discussions with your employer or avoid the stress and time involved in engaging in any performance or disciplinary process. Your lawyer should factor in your concerns when advising you and adopt the most suitable approach to try and achieve the outcome you want.
In some cases it might be in the employee’s interest to accept the employers offer. Whereas in others, the employee may have claims that are worth significantly more than the employer is offering. In such instances, spending a few thousand pounds on legal fees could result in a significate uplift in the settlement offer and amount to money well spent.
Below are some examples of clients we have secured successful outcomes for.
Client threatened with dismissal on grounds of underperformance
Our client works in the city, in financial services. She works for one of the top five firms. She sought our advice following allegations of underperformance. Her employer had invited her to an ‘off the record’ meeting where she was told she had no future with the company and it was proposed that they part ways with a settlement agreement – she was offered notice pay and one month’s extra pay. She was told by her manager that her dismissal was imminent and that her only alternative was to face a stressful performance management process, which the employer expressed was likely to result in her dismissal. Our client’s objective was to avoid being dismissed.
We reviewed the allegations of underperformance and identified a number of significate challenges to the allegations.
Our client suffered from a condition which we considered amounted to a disability. Following a careful analysis of the evidence and allegations of underperformance, we were able to link the allegations of underperformance to her disability. We wrote a detailed and forceful letter to her to employer arguing that its failure to provide her with adequate support amounted to disability discrimination and that the employer was legally obliged to make reasonable adjustments to accommodate our client’s disability. We also objected to the performance management process.
Following our letter, the employer confirmed that it would not pursue any performance allegations against our client and would instead assist her and provide her with the necessary support. Our client continues to be employed. We achieved this outcome in three weeks of the client contacting us.
Client accused of gross misconduct and threatened with dismissal
Our client was a senior manager in large a media company. He sought advice from us following an investigation into gross misconduct. He was due to attend a disciplinary hearing and was advised by his employer that the allegations against him were so serious that he could be dismissed immediately and without notice.
Our client’s main concern was to avoid the disciplinary, protect his reference and leave on his terms.
Whilst there was some evidence of misconduct, we wrote to the employer, challenging each of the allegations and identified that the allegations were not serious enough to justify a dismissal, let alone amount to gross misconduct. We also proposed a settlement offer which would allow our client to leave with a financial buffer and his reputation intact.
The employer’s starting positon was that it was required to take disciplinary action. Following our letter, the employer agreed not to pursue the disciplinary. We negotiated a favourable outcome and secured three months’ pay, an agreement from the employer that it would delete any reference to disciplinary action from our client’s record, an agreed reference and positive and mutually agreed announcement to our client’s team concerning his departure. The matter concluded within six weeks of our client instructing us.
Client unfairly selected for Redundancy
Our client worked as an event’s organiser. She suffered from an autoimmune disorder which made her more vulnerable to Covid. Following the first UK lockdown, her employer proposed making her and a significant number of her colleagues redundant.
Whilst there was a genuine redundancy situation, we identified a number legal claims, including arising from her selection for redundancy, which we identified as discriminatory (for reason of disability). This was on the basis that the employer had made unfair assumptions about her health. On this basis we robustly challenged her proposed dismissal, assisted her in raising a grievance. In addition to her notice pay and redundancy pay, we secured over five months’ pay for our client, plus an agreement that the employer would pay her legal fees. The matter concluded within six weeks of the client instructing us.
When instructing a lawyer you should consider the following tips
- You might want to begin by limiting the initial advice you are seeking, as such limit your fees, to first understand what your legal claims are and what they are worth.
- At the outset, you should discuss with your lawyer what you are looking to achieve. This means thinking about your ideal outcome, compromise position and absolute bottom line position. You should also discuss a rough timescale for when you hope to achieve the outcome and set your legal budget accordingly.So for example, once you have obtained advice about your legal position and the value of your claim, you might decide to set a budget of £2,000 for legal fees, with the aim of trying to achieve an uplift in the settlement offer by £10,000, then give it four to six weeks of negotiations to see how much of an increase your lawyer is able to achieve within that timescale. A lot of this will depend on how strong your legal arguments are, how robust your lawyers challenge is and your employer’s willingness to negotiate.
- Discuss funding options with your lawyer. For example, you may have legal expenses insurance or your lawyer might be able to offer a fixed fee for various stages of the work.