Negotiation and settlement

[GoldenRaven]

Thank you so much ULA , we did not even think of contacting the HMRC to ask!

I have also come across this and would be grateful for your thoughts on it. It is an excerpt from this link https://www.gov.uk/termination-payme...l-insurance-on

"What you do not pay tax and National Insurance on
You will not pay tax and National Insurance on:

• a termination payment you get because of an injury, illness or disability that prevents you from being able to continue to do your job"

Could all the payments Mum gets in the settlement via a COT3 come under this payment? Because Mum has not been able to work due to her disabilities.


"Just a thought what has happened about any pension payments whilst she has been off on long term sick?"

In answer to your question: Mum has an NHS pension, when her sick pay stopped she has not been earning and therefore not paying into her pension. Mum's schedule of loss claims for missed pension contribution from her employer and they have said in their counter SoL that the employer kept making this contribution anyway so it is not due, but they have not provided evidence of this. NHS pension says the employer can only contribute when the employee is contributing and we have this in an email in writing.

[ULA]

I would suggest as per my sign off, if you have have any queries about the advice given,.particularly as it relates to tax, then ask HMRC, if your mother decides to call them as advised in my last post.

[GoldenRaven]

I would suggest as per my sign off, if you have have any queries about the advice given,.particularly as it relates to tax, then ask HMRC, if your mother decides to call them as advised in my last post.

Thanks ULA, we'll do that this week.

[GoldenRaven]

Hi ULA ,

I have come to ask for your advice again. We have the psychologist expert witness report and the Respondent will not agree to add it to the bundle. They say, it is because they have conceded disability already and the hearing is for liability only so the report is not relevant. It is only relevant for a remedy hearing if Mum's claims succeed.

Is it true? Shall we just agree to not include it in the liability hearing bundle?

The only reason I can think to want to include it is to show that Mum's employer caused her disabilities and the extend of her disabilities and prognosis.

[ULA]

Will your mother be referring to any elements of the report in her witness statement

[GoldenRaven]

Will your mother be referring to any elements of the report in her witness statement

Thanks for getting back to us.

Yes, she will and is in the process of putting it together.

[ULA]

In which case I suggest your mother emails the respondent and lets them know that she will be referring to this document in her WS and that it will be required to be put in the bundle.

[GoldenRaven]

Hi Ula,

We are in the process of putting the Witness Statement together, it is only one witness statement for my Mum. As per above, we intend to refer to the MEWA report in the witness statement, to illustrate Mum's state of health at the time of certain of the Respondent's actions, this is to support that there was discrimination.

Is this the right way to refer to the expert witness report in a witness statement?
Is there anything else we should be using the expert witness report for in the witness statement?

Kind regards

[ULA]

Your mother cannot make generic references to the expert witness report in her WS.

The WS is an account in chronological order of the events that took place at work, and also what has happened since then. Use of the expert witness report and references to certain parts of it, by way of the relevant page number in the bundle, needs to be in the context of supporting the account of the event your mother is describing.

[GoldenRaven]

Hi ULA, I am hopefully coming to you with a last request. Mum is considering accepting a settlement offer. As expected this is subject to contract and the COT3 terms are in our non-legal opinion rather far-fetched. From research, we expected the normal terms which are included:
an employment termination clause,
dropping all current and known proceedings,
repaying the settlement amount if Mum breaches the contract
agreeing not to bring any proceedings arising from Mum's employment or during her employment.

However, these go further to include:
Agreeing not to bring any claims against the Respondent, its current, future or former associated organisations, and current, future and former employees or agents. → This means that because it is the NHS if Mum is the patient in a botched surgery she can't bring claims or if an NHS employee runs Mum over, she can't bring claims. The NHS is the largest employer in Europe.
Giving the Respondent all the documents Mum has relating to the Respondent and deleting them from Mum’s personal devices → This includes all her evidence for the tribunal, contract, notes, etc.
Agreeing not to obtain a Subject Access Request. → This will prevent Mum from accessing her own medical report as it is the NHS.

We are confused and worried about Mum signing anything she does not understand. We are particularly concerned about future implications. Mum understands that they want her to not work for the NHS and to not bring any claims related to her employment. But we think it goes too far.

We would be very grateful for your guidance. The Respondent keeps saying these are standard terms, it just seems too demanding and outside the scope of the current situation.

[ULA]

In respect of the COT3 your mother is being asked to sign and the clauses you have concerns with I can respond as follows:

"Agreeing not to bring any claims against the Respondent, its current, future or former associated organisations, and current, future and former employees or agents." - This is a standard clause, however it should go on to specify the claims this in relations to and these are mostly employment law related claims. If that is not in there then this should be included.

"Giving the Respondent all the documents Mum has relating to the Respondent and deleting them from Mum's personal devices". This is a clause related to confidential information that your mother has in her possession that she has been party to in carrying out the duties of her job and that are related to the organisation and should not be intended to cover her evidence for the ET hearing. You may just need to get them to confirm this interpretation

"Agreeing not to obtain a Subject Access Request"- again this should be related to her claim and employment but not related to her as a "customer" of the NHS. You may just need to get them to confirm this interpretation

[GoldenRaven]

" What you do not pay tax and National Insurance on

• a termination payment you get because of an injury, illness or disability that prevents you from being able to continue to do your job"

This is directly from Gov.uk. ULA do you think we can approach the Respondent to pay Mum's settlement as a termination payment because of injury, illness or disability that prevents her from being able to continue her job? Then there will be no deduction on the settlement amount?

The MEWA report clearly says that she is not currently fit for work and needs treatment and an extended reintegration into the workplace also she will remain vulnerable to psychological harm, particularly in the workplace. She is not able to return to work at the moment and will not be able to return in the same or similar role due to her inability to deal with stress and customer/patient interaction when she goes back to work, which she is planning to look for new employment in 6-12 months in a purely admin and non-customer-facing role.

Also thanks for your clarification above, we've requested the and we are still waiting for the Respondent to confirm these.

[ULA]

Sorry GoldenRaven you are again asking for tax advice which I am not prepared to do as this is a separate and specialist area of expertise. Your Mum would be best advised to speak to a tax adviser or HMRC directly.

[GoldenRaven]

Thanks Ula, we'll try and see if we can get an appropriate advisor. Hopefully that's the last hurdle