Negotiation and settlement

**GoldenRaven** · 23rd June 2023, 23:56:PM

I have done some reading on the forum and I have another question. Given that I am still employed (but on sick leave) can I ask my employer to contribute to the cost of my obtaining advice regarding a settlement? So far discussions have been made via emails with ACAS copied in. Being on sick leave my income in greatly reduced and I can't afford any legal advice.

**atticus** · 24th June 2023, 08:39:AM

You can always ask

**ULA** · 24th June 2023, 15:44:PM

A Settlement Agreement (SA) is a document which set out the terms of what the company is going to pay you as “compensation” for you giving up any rights you have to make a subsequent claim against your employer and to leave their employment by what you have said in your pos.

If so, then part of the process of signing a SA is that you will be required to take independent legal advice from an employment law specialist. Part of their job is to ensure that the "compensation" being offered is at the correct level given the circumstances and the rights that you are giving up to bring any further claims. If they go not feel you are being offered enough "compensation" then they would have to negotiate with your employer to increase the sum being offered.

Most employment advisers have a standard payment for providing this advice which is between £350 and £500 which is generally the rate that the employer offers to pay. This is usually enough to cover the costs if the SA is straight forward and there is not much back and forth negotiating terms on your behalf.

In your case if your employer is asking for you to sign a Settlement Agreement, I would suggest engaging an employment law advisor and explain the situation, they should also ask for a copy of your contract of employment. They can then best advise as to what you should reasonable expect to receive and negotiate accordingly.

Alternatively since the current negotiations are being conducted by ACAS any settlement could be done by means of a COT3 which against sets out the details of the settlement being reached. However in this instance the company is not obligated to pay towards your costs of independent legal advice.

Although typically in an Employment Tribunal claim, each side pays for their own costs, either side can, under certain circumstances, make an application for costs. I would suspect, given what you have said, the respondent will try to argue that they were prepared to settle for a reasonable figure (albeit you many not think this) which you refused to do and incurred them the ongoing costs of preparing for and attending the hearing.

**GoldenRaven** · 26th June 2023, 11:02:AM

Thank you very much for your response. I am the Original Poster's (OP) daughter and I am helping my mum with this due to her illness, she is not able to cope with the stress.

The settlement discussion is via ACAS and COT3, not a SA with her employer.

Can we add interest in the SoL? I did the schedule of lost based on a link from CAB and it had interest on it: https://www.citizensadvice.org.uk/wo...mination-work/

Will the ET see my mum as being unreasonable for not accepting their offer and make her pay the respondent's cost if she does not take an offer that consists of her giving up her employment contract? From what I have researched the ET does not terminate the claimant's contract of employment, this is only arranged between the claimant and respondent, is this correct?

My mum really does not want to lose her job because it is the largest employer in UK, a public body and she can be transferred to another location to work. That way she retains all her benefits earned in a 10yrs working there. Especially the employer's pension contribution and salary deduction car lease.

Alternatively, should we price up what my mum's job is worth and give them a counteroffer for effectively 'buying' her employment contract? If so how should I calculate this, as my mum is not expected to go back to work in the foreseeable future, and due to her disability which was sustained due to her employer and part of the claim, it is unlikely she will find and be able to do a similar job for a while. Can we make a counteroffer for a sum to settle her current ET claims and an additional sum of 3yrs worth of wages to give up her employment?

Obviously being on the hook for her employer's costs is really worsening my mum's mental health, and I am trying to help as much as I can. Thank you so much for your kind help. It is a life line for people like us. Thank you.

**ULA** · 26th June 2023, 20:21:PM

Unfortunately a COT3 as I set out in my earlier post does not require the respondent to make a contribution to independent legal advice. However it does not preclude you from trying to negotiate some contribution to legal advice, so why not push back on this via the ACAS conciliator.

In employment tribunals, interest can be claimed on past financial losses in discrimination cases and for injury to feelings at the rate of 8% per annum Interest is calculated on a daily basis up to the date on which the compensation award was calculated (usually the day the tribunal hearing ends).
However, the starting date for each type of claim is different.

I really cannot say how a judge would view any "turning down" of an offer by your mother if it went to a hearing and the respondent made an application for costs. Costs are not typically awarded but it that does not mean to say they are never awarded, I have seen it happen.

I am just asking your mother to consider a practical viewpoint, she has already been off work for a year, what is her prognosis for being able to return to work if this matter gets resolved? Would she actually want to return to a work environment where she has been treated in the way that you set you in your initial post? I suggest that your mother considers these questions carefully in respect of the option to put in a counter offer on the basis of compensation for terminating her employment. I think it would be this where some legal advice would come in very helpful.

**GoldenRaven** · 5th July 2023, 15:17:PM

Thank you for your response ULA and the boatload of helpful information (and on the forum). I will leave the interest on the schedule of loss, very naughty of the respondent to say that this does not get awarded.

Having had time to think on it, my mum has declined their offer. Her reasoning is that she has done nothing wrong and taking their offer and giving up her job will only punish her for standing up to how she was treated and cause her further issues. There is no way she is giving up her job. She is keen to go back to work, she is good at her job and loves it. It is in the NHS her only other option if she gives up her job is to go in private healthcare which she loathes. She is very committed to her job, particularly with the current lack of skilled staff. She just does not want to work in the same location, with the same people. The issues causing her stress and depression are how she has been treated by the people and the trust she works with. In her career she has work in different trusts and has never had any issues. She wants to go to a different trust and we are putting this in a counteroffer: She will drop her employment tribunal case if she gets the following: move to a different trust, monetary compensation for her loss in salary and a small amount of compensation for what she went through, and a return to work plan where she starts off on less hours and move back into full-time.

I am however concerned that they don't want to keep her as an employee because of the liability they open themselves to if they treat her badly again as it can be classed as victimisation because she has brought a discrimination claim. Or that now they know she will go to the tribunal, they won't want her to work for them.

**ULA** · 5th July 2023, 20:32:PM

So has your mother put forward the counter proposal as you have set out with a view to withdrawing her ET claim if it is accepted?

Your mother has worked for them "for a long time" and the counter offer, if not accepted by her employer, I presume will result in her continuing with the ET claim. If so her employer would need to be careful in terms of how they manage her absence to ensure they do not act in a way that would be construed as victimisation.

**GoldenRaven** · 12th July 2023, 16:27:PM

Originally posted by ULA View Post

So has your mother put forward the counter proposal as you have set out with a view to withdrawing her ET claim if it is accepted?

Your mother has worked for them "for a long time" and the counter offer, if not accepted by her employer, I presume will result in her continuing with the ET claim. If so her employer would need to be careful in terms of how they manage her absence to ensure they do not act in a way that would be construed as victimisation.

Thank you for pointing this out ULA . You must be very experienced or have a 6th sense! Her counter-proposal was not accepted. The Respondent's response was that they were only making an offer for my mother's peace of mind to give her room to get better without stress and so that she does not have to come back to work in an environment she does not like. They stated none of my mum's claims happened, there is no reasonable prospect of success, they will robustly defend the claims and my mum is now liable for any costs they incur from now which they will seek at the hearing. And according to them, in the unlikely event my mum wins, based on past tribunal rulings and their own experience, the award will likely be equal to or a lot less than they are offering.

My mother is going ahead with her claims. So far they were paying her contractual sick pay. She has been on sick leave for just over 1 year and last week they informed her that she will not get any more contractual sick pay. Their policy clearly says that employees are entitled to contractual sick pay at half rate until there is a final review meeting (quoted from their policies below). There has not been any review meeting or a final review meeting. Mum has not had any formal meetings regarding her absence at all. When my mum pointed this out they said they followed policy and policy is only 6 months full pay and 6 month half pay for her length of service. This is despite pointing out the quote below. She has been providing all her sick notes all the time she has been off and has had a few informal calls with her manager where she has explained her illness and treatment.

The situation is that part of my mum's claims is that the Respondent's discrimination caused her illness and disability. In all honesty, this is the case and there are no other contributing factors. I have read about the Respondent needs to have known and reasonably been able to foresee the injury. I think we have this covered as my mum had emailed her manager about being stressed, explained the reasons why, made several complaints via their internal procedures and has been signed off for stress and anxiety on several different occasions in the year before she went off on long term sick. Sometimes she had a return to work interview and sometimes not, but when she did she did explain what they were doing that caused her to be so stressed, she has copies of these. There are also talking therapy notes from when she started becoming ill to date that specifically record the issues causing trouble for my mum come from these behaviours from the respondent.

I have shared my concerns with my mum that they have cut off her pay, leaving her not earning anything, to pressure her to take their offer. And that I worry they may be getting ready to dismiss her, especially as she has pointed out to them that she has not had a final review. My mum is convinced that should this happen from what she understands, she can ask the tribunal to reinstate her as a remedy. ULA can you please confirm if reinstatement can be requested as part of the remedy?

Mum just wants to get back to work and put all this behind her. She has asked for a transfer and a flexible return to work on fewer hours for the first few weeks as recommended in the occupational health report, but the Respondent insist they cannot accommodate this. My mum is not moving on returning to work for the NHS, she is convinced that she has done no wrong. Honestly, we think she is not asking for a lot, just what would put her back to where she would be without the issues: her financial losses so far from being on sick leave and the middle of the middle vento band for injury to feelings and the same for personal injury plus the interest. There is also the fact that she has paperwork proving a lot of her claims, like records of requests for training to do new jobs allocated to her, she never got any training for these and she got disciplined and warnings for not meeting the set targets. While other colleagues of different races and sex got the training, were performing worse than my mum but no one said anything to them. Mum has team emails recording everyone's performances. There are a few more incidents, all recorded where she let management know about it. Her complaints were either never dealt with or dismissed as no grounds for it even when she appealed, the respondent insisted no wrong happened when it was clear as day it did with paperwork to back up. There are also deductions to her wages for a number of various reasons, miscalculations, not paying her all the hours worked, etc. Mum has parking evidence of being at work on these occasions and copies of rosters. Some of the deductions were eventually paid to her after several formal letter/email confirmations from the Respondent that they do not owe this sum.

So right now, we are just waiting and putting together paperwork for the preliminary hearing case management orders. My sibling and our partners are helping my mother out financially. She rents and she is thinking about making a decision to take my sibling up on their offer to move in with them and give up her rented home. This will incur costs of storing my mums belongings, can we add the storage costs to the schedule of loss?

I have included the relevant section of the Respondent's policy below, this is not confidential information and is readily available on the internet https://www.nhsemployers.org/system/...version-27.pdf

"Employees covered by NHS Terms & Conditions of Service who have exhausted sick pay, entitlements should be reinstated at half-pay, after 12 months continuous sickness absence in the following circumstances:

· Staff with more than 5 years reckonable service – sick pay will be reinstated if exhausted before a final review meeting for long-term absence has taken place.

· Staff with less than 5 years reckonable service – sick pay will be reinstated if sick pay is exhausted and a final review does not take place within 12 months of the start of their sickness absence.

· Reinstatement of sick pay should continue until the final review meeting has taken place. Reinstatement of sick pay is not retrospective for any period of zero pay in the preceding 12 months of continuous absence. Please note, this provision will not apply where a review is delayed due to reasons other than those caused by CSU."

**ULA** · 13th July 2023, 19:31:PM

In terms of your post I can respond as follows:

1. The issues of costs - I have set out my response regarding this in my post #4. So your Mum may not necessarily be liable but they can make an application for costs which a Judge will need consider. I have set out what I think they may try to argue in my post and this may sway a Judge to make a costs award against your mother, which she needs to factor as a risk for her.

2. Yes the respondent is correct if your mother did win her claim the award set by the Tribunal could be less than what has been offered via settlement, again this is a risk factor for your mother.

3. Do not forget that in the same way your mother has built up evidence to support her claim that the discrimination caused her illness, the respondent will equally have evidence they believe will prove they did not. Your mother has to be able to prove her claim and disprove their evidence.

You say your mother has Fitness to Work Certificates whilst signed off but does she actually have a medical report that say the discrimination has caused her illness and absence from work?

4. Should your mother be dismissed and bring a claim for unfair dismissal, reinstatement is an option she can request, however orders for reinstatement or re-engagement occur in a very small proportion of successful unfair dismissal claims. Even if reinstatement or re-engagement is ordered, a Tribunal cannot force an employer to take back an unfairly dismissed employee.

5. It sounds like your mother is trying to claim 2 times middle Vento bands one for injury to feeling and the other for personal injury. In most discrimination cases, as far as I am aware, the injury to feelings compensation covers impact on a person's health. It is only in some rare cases, where there may be a physical injury or a more serious mental health problem that will allow for an additional claim for personal injury.

I need to spend more time to review the staff handbook so will come back in due course on this.

**GoldenRaven** · 19th July 2023, 08:36:AM

ULA Thank you for being clear on the risks. I am making notes because it is something we must be clear on and my mum must understand before she makes any decisions because the stakes are high.

My mum does not have any reports saying her mental health illness is the cause of her absence from work. Do you mean GP report like a letter from her GP? She has notes from her GP consultations, sick notes and notes from talking therapies she has attended. And the occupational report from her work.
Are you able to explain what else might be needed to prove this? And any other steps we can take to obtain reports that will be suitable to prove this?

Many thanks

**ULA** · 19th July 2023, 15:55:PM

The very first post states that your mother is claiming sex and disability discrimination for which she is going to have to prove both parts of the claim. This means setting out how she was treated versus her male counterparts in similar roles and versus other work colleagues who are not disabled.

At post #7 you state that the "issues causing her stress and depression are how she has been treated by the people and the trust she works with." This sets out that her medical conditions relate to the treatment she received at work prior to her being absent for a year. This will need to be backed up by medical reports in that period and subsequently. This will need to include GP/consultant medical reports or occupational health reports etc where this is set out. In addition she will have to set out in detail the treatment, by whom, when, witnesses if any etc.

I am not trying to put your mother off continuing with her claim but she needs to know that this is a lengthy and stressful process. As much information as she believes she has to prove her claims the respondent will also have theirs in which to defend the claim. In addition she/you/your siblings supporting her will need to be able to research the legal arguments and case law to support the claims, it is not just the non-legal evidence that wins claims.

One question you have not answered which I have asked previously is, even if it was agreed your mother could return to a different trust, she has already been off work for a year, what is her prognosis for being able to return to work if this matter gets resolved?

**GoldenRaven** · 20th July 2023, 12:19:PM

One question you have not answered which I have asked previously is, even if it was agreed your mother could return to a different trust, she has already been off work for a year, what is her prognosis for being able to return to work if this matter gets resolved?

So far, the GP, therapist and OH have all stated that my mum will be able to get better and work productively once this matter is resolved. She has been advised by all 3 sources to return to work on modified hours and responsibilities and build it up to her normal role requirements. She was told this should be covered under reasonable adjustments to support her return to work. However, her work has refused to consider any return to work. It is worth saying that my mother does not provide care for patients, she does admin.

We are all trying to help her as best we can. This forum is really valuable. Thank you ULA for your support. We have contacted a couple of lawyers but we were told that mum needs to be willing to give up her job there if they take her case.

Are the legal arguments what we can gain from the Equality and Human Rights Code of Practice? I've been going through this and it explains the Equality Act and gives examples.
https://www.equalityhumanrights.com/...codes-practice

Case law is something that I do not know where to begin with. Are you able to point me in the right direction please?

Many thanks for your time and support.

**ULA** · 21st July 2023, 09:39:AM

Can you confirm when the preliminary hearing (PHR) has been set for and what the Orders are for that hearing?

Does your mother's claim still relate to:

1. Sex discrimination
2. Disability discrimination
3. Unlawful deduction of wages

The purpose of the PHR is to enable the tribunal to understand the basis of the claim and defence, identify the issues and set appropriate case management directions to help both your mother and the respondent prepare for the final hearing. The hearing can cover:

* Date and time of the final hearing
* Estimated length of the final hearing
* Witnesses to be called and documents to be disclosed
* A timetable for exchange of statements and documentation.

PHRs are usually required if the case is complicated or involves an allegation of unlawful discrimination, which if your mother is still claiming sex and disability discrimination has led to this hearing being required. It is likely that the tribunal will use the hearing to determine the specific issues in the case and again, with relevance to your mother's claim, whether for example, she would be considered disabled under the Equality Act and can therefore continue with the disability discrimination part of the claim.

A suggestion for the PHR is therefore to have together the documents i.e. reports, medical evidence that can prove your mother is disabled as defined under the Equality Act 2010 which is that she has a physical or mental impairment that has a "substantial" and "long-term" negative effect on her ability to do normal daily activities.

The terms "substantial" and "long term" are set out below:

* substantial - is more than minor or trivial, and impacts someone's life or how they can do certain things
* long-term - means is likely to last for 12 months or more, or may be a lifetime condition.

Prior to the PHR both parties are usually required to complete a Case Management Agenda, which is sent out by the Tribunal in advance of the hearing and must be submitted no later than 2 days before the hearing unless Ordered otherwise. I have uploaded this for you, so your mother can start to think about what to include to complete it. Both parties are encouraged to agree the agenda but if this cannot be done, then each will submit their own version.

Resources you find on the internet should only be considered if they come from reliable sources and the issue is to ensure that any information you use from them is directly relevant to the specifics of your mother's claims. If you do not, then it will be put under scrutiny by the respondent/their legal representative. Also be mindful of information that is not up to date, look at when it was produced/written and if it was years ago and referencing cases from that time you may need to look at whether findings from subsequent cases has changed interpretations of case law - it does happen. I have linked to Bailii where you can find case law and legislation

https://www.bailii.org/

Hope all of the above information assists.

Just a couple of further points picking up on your last post in respect of reasonable adjustments suggested by the GP, therapist and OH, were these put in writing to your mother's employer and was this request supported by any written reports from any of the medical advisers? Was there any written response from her employer to this request and did they provide reasons from why they did not consider the adjustments reasonable.

Attached Files

Agenda for Case Mangement @ PHR.pdf (57.2 KB, 4 views)

**GoldenRaven** · 16th November 2023, 09:54:AM

Originally posted by GoldenRaven View Post

So far, the GP, therapist and OH have all stated that my mum will be able to get better and work productively once this matter is resolved. She has been advised by all 3 sources to return to work on modified hours and responsibilities and build it up to her normal role requirements. She was told this should be covered under reasonable adjustments to support her return to work. However, her work has refused to consider any return to work. It is worth saying that my mother does not provide care for patients, she does admin.

We are all trying to help her as best we can. This forum is really valuable. Thank you ULA for your support. We have contacted a couple of lawyers but we were told that mum needs to be willing to give up her job there if they take her case.

Are the legal arguments what we can gain from the Equality and Human Rights Code of Practice? I've been going through this and it explains the Equality Act and gives examples.
https://www.equalityhumanrights.com/...codes-practice

Case law is something that I do not know where to begin with. Are you able to point me in the right direction please?

Many thanks for your time and support.

Thank you ULA for all this valuable information. We were able to use the resources you linked to. I am sorry for the delay in getting back to you. I lost my laptop with all my login details. I was able to search for the post in the forum and get to your links, thank you.

The PHR went well, hearing is set for the end of 2024. The list of issues has been agreed and includes:

1. Sex discrimination
2. Disability discrimination
3. Unlawful deduction of wages

And there are orders for a number of things which we are in the process of gathering. Thank you again for your help.

Negotiation and settlement

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