Son raised grievance that was not reviewed with employer offering settlement contract

[Carlblues7]

My son issued his CEO with a grievance against himself in November. This was not heard and the CEO employed an external HR consultant to hear the grievance.

It has taken until today for the HR consultant to arrange an informal conversation during which my son was offered a "Without Prejudice" Settlement Contract. If he does not accept this offer, then my son will be investigated for Gross Misconduct and Gross Negligence.

The CEO offered the settlement, though the document is titled "Protected Conversation", they have not reviewed the grievance and don't know the full contents of the grievance, which include bullying, harassment, discrimination and references relating to sexuality.

The settlement contract states that if not accepted, then he could be dismissed without notice and any future job references would include the information (if proven).

As there was no dispute prior to my son raising the grievance, does this negate the "Without Prejudice" settlement contract offer and the grievance hearing should take place?

Your assistance would be greatly appreciated.

[ULA]

How long has your son been employed at the company?

[Carlblues7]

As far as the company is concerned, he commenced employment at end of November 2020.

He only received copy of his contract today, having never seen copy before and never signed one. In fact, the contract was only created today by the company.

It also states that he earns £30,000 per annum for working a 3 day week and with 25 days annual leave. There is no pro rata contained within this contract, yet he has only received a monthly income of £1,500, hence £18,000 per annum. Therefore, he will request his back dated pay of £12,000 per annum that he has not been paid

He raised his grievance before there was any dispute in work against his CEO (also his Line Manager), nite that the company do not have any HR representation.

Under ACAS guidelines, the raised grievance should be heard within 5 days, to date no hearing has taken place and the HR consultant does not even know the issues.

She has worked with the CEO and cobbled together the settlement offer.

[Carlblues7]

See attached schedule of employment contract for my son of £30,000 per annum for a 3 day week and 25 days holiday.

[ULA]

So coming at this backward in your post order.

#4 Your son given his start date has a "day one" right to a written statement of terms. If that is all he has been provided then this does not comply.

#3 I guess they have forgotten to indicate those are full time rates for salary and holiday. When you point that out, I am sure they will put it down to an admin error.

#3 & #1 I am presuming this is a small organisation and if the grievance is against his line manager who is the CEO then if there is no-one internal of sufficient seniority, then the only choice would be to bring in an external person. However, that should have been communicated to your son and timescales provided as to when realistically someone could be brought in to manage the grievance process.

I am sorry to say that it seems rather than hear the grievance the company is now looking at a way to exit your son from the business.

The idea of a without prejudice conversation is for an employer ad employee to speak freely during settlement discussions in order to reach a settlement out of court. However, there must be an existing dispute between employee and employer for the protection to apply. By implying that there are potential allegations that could result in disciplinary action being taken against your son and his grievance in play, they are potentially creating the dispute that allows for a without prejudice conversation to take place.

Protected conversation (not a document) is generally used where the employer wants to terminate the employee’s employment for example, in a situation where the an employee is being accused of misconduct or the employer thinks they are underperforming. In your son's case it is the misconduct angle they are using. However, the difference with a protected conversation is that you can have one between employee and employer, even where there is no existing dispute.

In my view there is confusion either on the part of the CEO or the HR representative as to the purpose of these two types of conversations.

The benefit to him of a Settlement Agreement (SA) not settlement contract is that for this to be binding he would need to take advice from an employment law adviser. Part of their job is to ensure that the compensation being offered is at the correct level given the circumstances and the rights that your son would be giving up to not bring any further claims. If they do not feel enough is being offered then they would have to negotiate with the employer to increase the sum.

Most employment advisers have a standard payment for providing this advice which is between £500 and £750 which is generally the rate that the employer offers to pay. This is usually enough to cover the costs of the SA is straight forward and there is not much back and forth negotiating terms.

I hope that this has answered some of the concerns you have raised but just come back to this thread for any other questions.

[Carlblues7]

Thanks for response to my outlined issues. As you state that they are pushing for him to agree to walk away by voluntary resignation, so that it simply goes away.

The CEO has a proven record of bullying employees and accusing them, for once somebody took issue, being my son.

The HR representative was brought in at beginning of December, however due to the stress my son was under, his GP had signed him off sick for the 1st time in his professional career. They were still sending information to him during his sick leave, though not to arrange a grievance hearing.

They had delayed meetings last week to hold the hearing and delayed 3 times until the HR representative said they would have an informal call before arranging the grievance. During this call on Monday is when she simply went into the wording if the sertlement agreement, advising him that it would be best to accept Option 1 being VR and take 3 months pay and a good reference to future employees

If he refused, then they would not hold a grievance hearing and go straight into an investigation of Gross Misconduct and Gross Negligence, citing 5 reasons for investigation.

However, these reasons are all functions and my son has all the records and evidence which demonstrate that he is innocent, honest and truthful. They are issues that the CEO has created and has lied to the HR representative and she has taken them at face value without hearing and seeing the actual truth.

All this demonstrates is his continued bullying of employees, all because he can.
.
They have also outlined that he has taken 28 days leave against his permitted 25 days, providing the dates to my son. He has checked all dates and only 4 if the days were actual vacation, all others he was on company business, even in meetings in London with his CEap or travelling to San Francisco for a conference, hence a travel day. One of the dates is even a Sunday!

As I eluded to, this has been cobbled together by the CEO and the HR representative is enforcing his wish.

My son will not resign (option 1) and I stead go for Constructive Dismissal, he will be meeting a solicitor friend of mine.

The whole issue is a stitch up because the CEO doesn't like being challenged

With regards to the contract, the CEO got my son to back date his start date as he took advantage of the furlough scheme for all employees, yet they all continued to work throughout furlough.

Hope this helps.

[ULA]

Many thanks for your response and further information. My comments are as follows:

1 An SA is effectively and agreement on the part of both parties to end the employment arrangement. Yes it is being offered by the employer but your son also has to agree to it and understand the rights he would be giving up to make any future claim/s.

2. They cannot decide not to hold a grievance hearing because they want to "trump" this process with a disciplinary hearing. They can be run as two separate processes.

3. Please ensure that the solicitor friend of yours is an experienced employment lawyer.

4. When did your son actually start?

5. If your son believes the company has committed fraud in respect of any claim for furlough support from the government, he could consider reporting them to HMRC. They have a website I have linked to below:

https://www.gov.uk/report-tax-fraud

[Carlblues7]

Hey ULA,

Quick Update.

My son is providing the evidence for his grievance hearing to the independent HR company this Wednesday.

He has involved ACAS who are now going to speak to the company CEO.

As it is a small company with my son reporting directly to the CEO, all of the grievances are against the CEO for bullying, harassment, victimisation, xenophobia, etc. After raising his initial grievance, the HR company held the settlement offer meeting, my son countered the offer which was rejected. Therefore, they are hearing the grievances, but at the same time, the CEO is going to chair a Disciplinary against my son, which of course, he will be found guilty and sacked.

Can the CEO perform a Disciplinary when he is the reason for the grievances raised?

Before my son raised the issues, he had never had a single performance review since becoming employed in 2020 and never received an employment contract or written statement of employment. The actual retaliatory reasons for the disciplinary are at best a performance discussion, yet the CEO has now fired another member of the team for the key issue and made the employee sign a NDA so that he cannot support my son as a witness!

Key question being can CEO chair Disciplinary review with the grievances directly associated against him?

[ULA]

In theory yes since the disciplinary process is a separate process from the grievance.

However my view is that because of the circumstances of the grievance raised, then I am not sure how fair and reasonable a disciplinary process undertaken by the CEO would be. Is there no other manager that could manage the disciplinary process or would they be too influenced if they did?

If there is an independent HR company dealing with the grievance, maybe they could also deal with the disciplinary?

If your son has been notified correctly of a disciplinary hearing, then I would suggest he puts in writing his concern with the CEO hearing it and presenting alternatives as I have set out.

[Carlblues7]

Thanks for prompt response

Unfortunately, my son was a direct report to the CEO and after he raised the grievance directly with him, the CEO contacted external HR as company too small to have own. HR Co worked with CEO to conduct the grievance, then made a settlement offer, which if turned down would result in the Disciplinary review. He also advised that the outcome would be instant dismissal.as the threat to sign the offer.

My son refused as both he and a colleague built the business and turned it into a strong AI company, having been promised shares aligned to the growth, which never materialized.

He reverted to the HR company to manage the grievance, but will chair the Disciplinary, hence it will be biased and unfair, already guilty as charged! My son requested external HR company must handle, which has continually be dismissed by the CEO.

MY son will not attend the Disciplinary and will be found culpable and dismissed on Wednesday, so will revert to ET for constructive dismissal.

[ULA]

I would advise your son does attend and if he is dismissed go through the appeal process, particularly if he is thinking of making an ET claim. That way he can prove he exhausted all internal processes.

Also if he is dismissed the potential claim would be unfair dismissal