NHS employer wants me to make the first COT3 settlement offer. How much should I say?

[Fi358]

Hi there,

I raised a grievance for indirect discrimination, age discrimination, disability discrimination, breach of NHS job evaluation policy, harassment, bullying and victimisation. I raised the grievance in December 2023 regarding being refused 3 flexible working requests, coerced to drive without correct insurance with a detriment of not being paid petrol expenses if I did not comply, being obstructed from the NHS job evaluation process by my manager ( working way beyond my grade) and a catalogue of related victimisation / unfavourable treatment including age discrimination for being overlooked for career development. In a nutshell this relates to me being a single parent with no support network and childcare issues I informed my boss about, the issues were making it increasingly difficult to do my job and my boss refused to make any allowances to remove this as a barrier.

I was further humiliated in front of the whole office and force to disclose my financial difficulties when my boss told me she wanted me to drive to different locations up to 80 miles round trips even though my contracted stated there was no driving / car required for my role, she insisted I pay for business insurance even though she knew I was in severe financial hardship prior and said if I didn't, I would be unable to claim expenses for petrol. Prior to her unreasonable behaviour, she was aware that my daughters school had called me to collect my daughter due to chest pains and shortness of breath, on one occasion she told me to give my daughters school the middle finger and that they could f%$k off. I had informed her that I was suffering from increasingly bad anxiety as a direct result of her not allowing me to work more days at home as it meant I was at least 30 minutes drive from the school. When I was recruited, she informed me the role was fully remote. I had been unemployed for 12 weeks prior to meeting my boss at a job fair at my local job centre, I was desperate to get back to work and she said the job, albeit low paid, would be perfect as I would not incur childcare costs and could pick up my daughter from school. I was over qualified for the job, but decided to take it due to the convenience of being able to have a better work /life balance,

This is the bare bones of my grievance as a lot of other incidences took place. It turned out the role was hybrid 3 days in office, 2 at home. I was employed at the lowest band in the NHS as an administrator for a new project, I consequently coordinated the project and created all operational processes, documents, comms, templates, databases etc. I was tasked with creating a staff friendly FAQ based on complex policy that was published for all staff as an authority document, albeit, on minimum wage. When I asked for my job to be evaluated, my boss told me it was a conflict of interest to support the process and refused to acknowledge I was working above my band. I subsequently went off sick in November with anxiety and was diagnosed by my doctor with high blood pressure and subsequently treated for panic attacks with medication and counselling, this is all work stress related and never suffered from high blood pressure before, but had disclosed to OH that I had been diagnosed with anxiety in 2020 during recruitment stage, but was no longer on any medication for it. Since November, I have had an ongoing battle to get my high BP under control with medication and the doctors have increased the meds, I believe it is all the stress from work.

I raised a formal grievance approx 5 weeks after going off sick. Since raising the grievance in mid December, HR informed me that were trying to find someone to undertake the investigation and would have to find someone external to conduct it due to the length and complexities of my grievance, they have not yet appointed anyone and as my tribunal clock was ticking I contact early conciliation 2 weeks before being timed out. My first contact with the conciliator was today and she stated 'they are open to discussions around a settlement offer' but wanted me to put an offer forward first. Prior to this, I had been liaising with an assistant director of HR who stated because the NHS, they would not make an offer, and were anxious for me to get back to work, she had stated I could work from home as that is what I wanted, pending an investigation and hearing that she estimated would take two months to investigate once and investigator was appointed.

Her interest during our discussions was centred around me writing a new job description to mitigate the job evaluation breach, I refused to do it as the policy states the onus is for the manager to do this for newly created positions (my job was a new role) and I kept my ground that the process had been contaminated when I was told by my manager it was a conflict of interest for her to have an opinion on my JD. It is worth noting that subsequent to requesting an evaluation, important tasks for the project were taken away from me and I was told I was no longer required to attend project meetings.

I have looked at the Vento guidelines for discrimination and off the cuff, I would say that my case is a middle cost case. I am genuinely unwell and feel that over a year of bad treatment has made me mentally unwell ( all the classic depression and anxiety symptoms with addition of panic attacks) as well as physically and I honestly do not feel well enough to embark on further employment, I am currently on half pay and that is exacerbating my mental health symptoms and I will be on no pay on 22nd February. OH have signed me off until the end of February for further review as has my GP.

I want to make sure I am compensated fairly for all they have put me through and I am worried that I will make a mess of giving the first offer for settlement. Can anyone help me to navigate a settlement, as it will be a COT3 settlement, I am not entitled to any legal advice for a settlement agreement. How do I factor in the job evaluation breach and quantify it? Can I pluck a figure from the Vento guidelines and add 12 months future loss of earnings and personal injury, in the Vento scale separate from injury to feelings? I am prepared to go to a tribunal as I know the merits of my case are strong.

Sorry for the lengthy ramble, but it is the only way I can give context and a clear overview.

Many thanks in advance, I will be responding to all additional questions and checking the forum regularly for any replies.

[ULA]

Firstly although you have set out what our grievance was you have not really set out what your claim would be for and how much evidence you have to substantiate this. Without you being able to set out what your employment tribunal claim would be for it is hard to guide you on any settlement. You also name all types of discrimination in your grievance but what is your evidence?

1. How were you discriminated against because of your age?
2. Disability discrimination - do you have a physical or mental impairment that has a ‘"substantial" and "long-term" negative effect on your ability to do normal daily activities. Substantial is more than minor or trivial, e.g. it takes much longer than it usually would to complete daily tasks and long-term" means you had or are likely to have the condition for 12 months or more?
3.Over what period did you raise the flexible working requests given that you can only submit 1 request in any 12 month period?

In terms of considering what figure to give, then Vento bandings are the starting point for discrimination claims. Compensation for loss of earnings would be 12 months as a maximum and the court would take into consideration the prospect of now long it would take for you to find a new job, which then potentially brings down the 12 month period.

Also you need to be realistic about any settlement figure you are prepared to consider. Yes it is a negotiation and have an end figure you would be prepared to settle at and then start higher. It is sometime better to get a settlement you are happy with than face going through a tribunal process. I say this on the basis that a tribunal process is long, given the various aspects of your potential claim you are likely looking at some time in 2025 for a final hearing. It is stressful. At the end of the day it is down to the judgement of a panel made up of lay members and a judge as to the merits of your case and if you do end up being successful the Judge will decide the amount of any remedy you receive.

[atticus]

For an opening offer, aim high!

[Fi358]

Many thanks for your meaningful response, it certainly gave me food for thought and has changed the way I deem my grievance, so very helpful to come out of the grievance bubble.

Firstly although you have set out what our grievance was you have not really set out what your claim would be for and how much evidence you have to substantiate this. Without you being able to set out what your employment tribunal claim would be for it is hard to guide you on any settlement. You also name all types of discrimination in your grievance but what is your evidence?

Indirect sex discrimination for refusal of informal flexible work request - as a single parent with no support network and being the only emergency contact at my daughters school, I would argue that this is a protected characteristic for the purpose of the Equality Act 2010.

Evidence - No written evidence of refusal of my flexible work requests, all manager's refusal were verbal and in her private office. I told a number of friends in real time after each request. My contract states that flexible work requests should be agreed between employee and manager, this infers that the culture is to make informal requests notwithstanding the Trust does have a formal process that my manager never informed me of until I made a written request and she verbally refused it. I was never signposted to the formal procedure. My first request was 3 months into my contract, the second was 9 months in to my contract and after my daughter was hospitalised with meningitis. Subsequent to this, I had burst into tears when a colleague asked me how my daughter was doing and I told her I felt I had PTSD as I couldn't stop worrying and crying while at work, as I felt too far away in an emergency, my boss came over when I was crying and said it was understandable that I was upset and felt I had PTSD but she still refused to allow me more days WFH. On all occasions when flexible work requests were made on the basis of childcare issues, I clearly stated that I was suffering from increasingly bad anxiety and was finding it difficult to cope with the anxiety. No support measures were put in place either. The Trust's flexible work policy encourages WFH and agile working were possible and states 'work should not be a place you go but something you do'. Most non clinical teams work remotely, it is the culture of the Trust. Trust policy also states they take equality and inclusion seriously and will make every effort to support the removal of barriers to career progression.

I informed 3 friends (as below) in real time after each refusal of my requests, they are all prepared to provide witness statement if necessary. I also spoke to colleagues about the refusals.


Bullying / Harassment ( not sure which ) - in relation to being coerced / pressured to drive (substantial distances to hold meetings with senior stakeholders and embed the project into their service) / pay for business insurance with the detriment of not being allowed to claim expenses if I did not do so ( my contract states no car required for my role, I am employed as an administrator. These unreasonable requests were made during a period when my daughters school were ringing me regularly regarding ongoing chest pains and shortness of breath that resulted in a cardiac referral. My boss was aware that I was the only emergency contact and sole carer and the school had previously raised concerns that I could not get to the school in a reasonable time ( I work approx 7 miles away) the trips I was being pressured to undertake were 80 mile round trips and expected to do this without reasonable notice.

Evidence - Another manager was present when I raised initial concerns when I was first hit with this and I became distressed about the impact on my caring obligations and that I had not income for out of pocket expenses or business insurance. During a senior management meeting I raised concerns to a Senior member of HR regarding the driving to other sites stating caring and financial implications. After raising the concerns my manger ignored them and in front of an office full of people stated I had to get business insurance and would not be allowed to claim my petrol if I didn't. This was a public humiliation as I had to respond expressing my financial difficulties in front of everyone ( she was aware I was struggling financially). To coerce or permit someone to drive is a criminal offence contrary to provisions in the Road Traffic Act if death or serious injury results. It is also a criminal offence to drive to locations that is not my normal place of work without the correct insurance.

I also spoke to a colleague on whatsapp messenger in real time about the pressure I was under to drive and that it was causing a lot of stress and anxiety. I spoke to a colleague who sits behind me and told her that the pressure to drive was making me feel unwell mentally. I told the said 3 friends separately in real time on the phone about it and the stress I was under. I contacted the in house psychological wellbeing team for support with the increasing anxiety and stress I was experiencing during this time.

Victimisation - Line manager placed her birthday invitations on everyone's desk except mine and did the same with the Christmas dinner menu. Intentionally leaving me out and my hurt feelings thereof. After my final flexible working request in writing, manager called me in her office and became aggressive stating 'everyone was concerned about me', when I pressed her as to why, she finally said someone overheard me talking about the email I sent her, she told me I shouldn't discuss anything with work colleagues. I believe this was to further isolate me from the team and feel paranoid. When I became friendly with members of another team, she reprimanded me and told me I was not allowed to be friends with anyone from that team. This is contrary to Trust policy that expressly encourages staff to be sociable and have non related work conversations as part of the work day.

Evidence = I told 3 different friends in real time what had happened, all three will provide witness statements if necessary. A school nurse, an NHS service manager and a finance manager, so I am assuming they would be deemed credible as witness and I told them all separately so there is no collusion with each other.

Breach of NHS Job Evaluation Handbook - Newly created roles sec 5.3 states - all new roles should be evaluated after a bedding down period of a few months and the onus is on the manager to initiate the job evaluation process and rewrite JD. In addition, it states Trusts must be extra careful where roles are initially banded at the lowest or highest band prior to anyone being in post ( my role was newly created at the lowest band prior to being in post). The handbook states that any breaches of the process will be remedied by the provisions of the Equality Act 2010 equal pay provisions and could result in litigation for failing to adhere to the policy My contract is an 'Agenda for Change' contract that allows for the embedded principle of 'equal pay for equal work'.
Evidence = Raising a job evaluation request by email ( when the onus was not on me to do so). Being told verbally by my manager that it would be a conflict of interest for her to have an opinion if I was working beyond my band and that she could not support me with rewriting my JD. Using manipulation to deter me from the process; she said she did not want another member of her team to go through the process and get disappointed as I could get demoted ( impossible as I am at the lowest band anyway! lol). She had a legal duty to initiate and rewrite the JD as per sec 5:3. The process was therefor contaminated. I believe this could also fall into the remit of victimisation as this happened at the time she refused one of my flexible work requests.





1. How were you discriminated against because of your age?

During a team meeting on Teams, my manager announced that the only other Band 2 worker on the team would be learning new tasks with a view to progressing her career, she is 26, I am 50. She commenced employment 3 months before me. I am the oldest member of team, most are in their twenties with exception of one being 40yrs, all of the team had annual appraisals, I was the only team member who has not had an appraisal ( I commenced employment in October 2022).


2. Disability discrimination - do you have a physical or mental impairment that has a ‘"substantial" and "long-term" negative effect on your ability to do normal daily activities. Substantial is more than minor or trivial, e.g. it takes much longer than it usually would to complete daily tasks and long-term" means you had or are likely to have the condition for 12 months or more?

Yes, but I was not aware that my health conditions could be deemed a disability under the Equality Act 2010. I disclosed my diagnosis of Anxiety. Endometriosis and Fibroids that cause severe pain and extremely heavy bleeding. The work stress excerbated these conditions and made them worse to the point I am now on medication for panic attacks and heavy bleeding. The fact that I disclosed to OH during pre-employment checks would deem the Trust having constructive knowledge of such. In particular, I raised the issue of struggling increasingly with anxiety when making my flexible work requests on the basis of childcare issues. The heavy bleeding also became considerable worse in the last few months of employment but I never mentioned this directly until I was signed off by my doctor in November, I have subsequently been diagnosed with High Blood pressure in November that has been difficult to control with medication and I believe that is directly due to work stress. I have been to A&E in November for a panic attack and I am now on medication for panic attacks that has just been increased to try and get them under control. I am now in counselling for my anxiety and panic attacks.
3.Over what period did you raise the flexible working requests given that you can only submit 1 request in any 12 month period?

Month 3, my manger said she would review in 6 months ( she didn't). Month 9, Month 11 and Month 12. Not sure which one counts now.

In terms of considering what figure to give, then Vento bandings are the starting point for discrimination claims. Compensation for loss of earnings would be 12 months as a maximum and the court would take into consideration the prospect of now long it would take for you to find a new job, which then potentially brings down the 12 month period.

In terms of the Vento banding, my understanding that the figure for each band is dependant of circumstances that apply. The higher band states where there are health issues from injury to feelings such as anxiety and depression and there are more than one instance of discrimination. I am wondering if I fit that remit.

Also you need to be realistic about any settlement figure you are prepared to consider. Yes it is a negotiation and have an end figure you would be prepared to settle at and then start higher. It is sometime better to get a settlement you are happy with than face going through a tribunal process. I say this on the basis that a tribunal process is long, given the various aspects of your potential claim you are likely looking at some time in 2025 for a final hearing. It is stressful. At the end of the day it is down to the judgement of a panel made up of lay members and a judge as to the merits of your case and if you do end up being successful the Judge will decide the amount of any remedy you receive.

Yes, my end figure is significantly lower than what my start figure would be for sure. However, I am not sure how to work in the breach of the job evaluation process into the figure as it is hard to guess what band/ pay I would have been awarded if the process was undertaken as it should have, The only indication I have is that Unison state that breaches of job evaluation can be very costly in terms of damages. I have no idea how to quantify this. This seems to be the issue that HR wants to mitigate along with pressuring me to get back to work ASAP. I assume they are hoping that if I go back to work, it will mitigate any future loss of earnings I may potentially claim for. As it stands I will be on no pay by 22nd Feb with exception of SSP. I told the HR assistant director today that I feel they are pressuring me to come back with a lack of regard that my current health issues and inability to work at present is very real.

Thank you so much for taking the time putting me straight on a few things, I needed that! Do you have any further thoughts?

[Fi358]

For an opening offer, aim high!

Thank you! I will shut my eyes and wince when I do though, I know it will get refused already.

[Fi358]

My employers have told the ACAS Conciliator that they want to settle the matter internally and have offered:

1. To make payment of outstanding holiday entitlement to mitigate current hardship due to being on half pay and shortly no pay.

2. To allow me to work from home and have me lined managed by HR.

In my grievance I stated that I would not work directly or indirectly under my manager and as she manages the project, any other line manager is just a go-between. If also stated I wanted to be transferred to a role commensurate to the level / band I was working at prior to requesting a job evaluation. I am currently still off sick with anxiety, panic attacks and high blood pressure so I am not in a fit state to return to work at this point. I told the ACAS Conciliator as much.

My question is, if I am unable to work due to the injury to my health caused by their failures, have they sufficiently mitigated my managers refusal of my flexible working requests even though I am not well enough to work from home and the unsatisfactory conditions of such (keeping me in the same post without remediation of the breach of the job evaluation policy?).

[ULA]

From what has come back via ACAS your employer is looking to try and settle this with a view to you returning to work. This seems consistent with what you were told by the assistant director of HR. I am not sure if this is what you are looking?

In terms of the company offering to allow you to work from home and be lined managed by HR, they are looking at this as a way to potentially deal with the issues of the flexible requests and also trying to resolve the concerns you have over the treatment by your line manager. That said if they want to follow this route and given you are signed off work, I believe that your employer should be considered referring you to Occupational Health for an assessment of when you may be able to return to work and whether they advise consideration of any reasonable adjustments to facilitate that return to work which may for example be working from home, moving to a new team.

[Fi358]

Many thanks for your response ULA. The offer of remote working for the same team and line managed by HR is a futile attempt at resolution. There is no way this would work, the thought of it is having even further negative impact on my mental health and provides no remedy for the breach of the job evaluation breach. IT have told ACAS conciliator that I do not accept this and would only consider moving to a different team commensurate to the grade I was working at which I believe to be much higher than the grade I’m currently at.

The issue I have is while all this is going on, so will be dropping to no pay while on sick. If I went back on their terms just so I don’t lose a wage, would this have an adverse impact on my case moving forward to tribunal?

(thanks again!)

[ULA]

The issue that you have will be time limits. Your claim/s have to be submitted within the correct timescale which is three months less a day from when the events complained of happened.

Your initial post towards the end was about navigating a settlement is this still your preferred end solution? If so then you need too be considering what that figure is whilst you wait to hear back from the conciliator with your response.

[Fi358]

Thanks ULA. The conciliator said they have back peddles on their original consideration of a settlement. HR have gone into overdrive now, they have recruited an external consultant to do the grievance investigation and has arranged a ‘Terms of reference meeting’ with me on Teams next week. I have been signed off by OH for further review on 26/02/24. They have told ACAS they want to get me back in post asap and will allow me to WFH. All they seem to be bothered about is getting me back to work, I believe this push is to mitigate any “injury to feelings” I may seek at tribunal and to deter me from pursuing the tribunal route. Conciliation ends on 22/02 and my click to file starts from there. I fully intend to file my case at Tribunal as it seems even a nominal settlement is not up for consideration by them. I am receiving emails and phone calls from HR almost daily now for various reasons to do with the grievance/ well-being. They have also tried to persuade me to rewrite my job description for the job evaluation panel. I have refused to do this on the grounds the process was contaminated subsequent to me requesting such in July. The NHS handbook states all new roles must be evaluated after bedding down period and must be done so by my manager or me and my manager. This policy breach would be open and shit at Tribunal, so I guess they will wait to see if I fil, go through the whole litigation rigmarole only to settle before a hearing.