I’ve been accused of poor performance and have been sent home until further notice (to think about a settlement agreement offer my employer has made). It feels like I’ve been banned from coming in and treated like I’m guilty of gross misconduct. I was told they have evidence of gross negligence and I may be dismissed.
My remote access to email has been cut-off and I’ve been asked to hand over my work office keys and fob. I was basically frog-marched off the premises. The letter I was handed gives me five days to sign the settlement agreement. Any advice?
Poor you. It sounds like you’ve had a tough time. I know it’s hard but try and be objective. You don’t say what the financial terms of the offer are or whether you accept your employer’s concerns about your performance are valid and if so how serious.
You need to weigh up the value of the offer against how things may play-out if you turn it down, including a disciplinary and possible dismissal, if you are guilty of gross negligence. Your employer has not said you will be dismissed, only that you may be dismissed. But you may feel the way you’ve been treated points towards your employer having pre-determined the outcome.
An employer that has genuine concerns about an employee’s performance may decide to make a settlement agreement offer. However, a clumsy and insensitive approach by an employer puts it at risk of claims.
You do not say how long you have been employed. If you have two or more years’ service, you have accrued the right not to be unfairly dismissed. In certain circumstances, an employee will be able to bring an unfair dismissal claim regardless of length of service. For example, if dismissal was in connection with pregnancy or because the employer was a whistle-blower. No minimum service is required to bring a discrimination claim. If you believe your employer is treating you this way for some other reason you should discuss this with your solicitor.
If an employer acts is a way (without good cause) that was likely to destroy or seriously damage trust and confidence, an employee may decide to resign (within a reasonable period of time) in response and bring a claim of constructive unfair dismissal.
The way you employer has treated you during the settlement discussions may form the basis of an argument it breached mutual trust and confidence, giving you (the employee) the option to immediately resign and treat yourself as constructively dismissed. Bringing a constructive dismissal claim is not easy. The burden of proof falls on the employee to show he resigned in response to a serious breach of a fundamental term of the employment contract. Your employer may deny acting as you allege leading to a factual dispute an employment tribunal would need to decide. Or your employer may argue it behaved reasonably (and with good cause) in the circumstances. You should consider discussing these issues and the relevant documents with an employment solicitor so you can obtain a legal opinion specific to your case.
Admissibility of Settlement Discussions
Your employer may also argue you cannot rely on what was said and done in the settlement discussions because they are inadmissible.
The offer of a settlement agreement cannot be used in an ordinary unfair dismissal employment tribunal unless the Judge accepts the employer said or did something during those discussions that was improper. You may be able to convince an employment Judge that your employer acted improperly by only giving you 5 days, or by frog marching you off the premises and cutting-off your work. These are only arguments which if successful, would enable you to rely on the discussions in support of your claims. Whether this behaviour would be deemed sufficient to amount to grounds to treat yourself as constructively dismissed would be a separate issue for the tribunal to decide.
You don’t say what (if any) evidence your employer has provided you with to support its contention you are guilty of gross negligence. If the employer has misrepresented this evidence this too may amount to improper conduct by your employer.
Careful analysis of the evidence including any notes or meetings and /or letters should take place, to assess the strength of your case.
Deciding to resign is a big decision and one you I recommend you consider very carefully, assessing the personal issues, the financial implications, availability of legal advice and merits of your claims.
Settlement agreements provide certainty and usually prompt payment. Bringing a claim will take months with no guarantee of a successful outcome. Claims can be stressful. Depending on your funding options, you may also have legal costs and tribunal fees to consider. You should seek advice from an employment solicitor without delay.
Answer given 27 April 2017 by contributing settlement agreement employment solicitor
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IMPORTANT: The contents of this page are for guidance only and do not constitute legal advice (nor are they intended to constitute legal advice). You should consult a solicitor for advice on your particular case and circumstances.