Settlement agreement out of the blue but love my job and don’t want to go anywhere

[atticus]

Your friend is being advised by a solicitor. She should listen to that advice, and discuss it with the solicitor if she is unsure about any part of it.

The compensation is intended to cover losses through being unemployed. It is a guess, as right now nobody knows how quick or protracted the process of finding another job will be.

She needs to understand that her employer wants her out. Her options are to agree a deal or to take an unfair dismissal claim to an Employment Tribunal. Your posts suggest that she will find that process extremely stressful.

[Retromau5]

If your friend is not willing to is finding this situation stressful enough to be feeling anxious and having their sleep disrupted then they might want to speak to a doctor and self certify with their employer as being sick. This will give them some breathing space and help alleviate some of the effects this situation is having on them, and allow them to look at their options undistracted by the working enviroment.

[HR BLAH BLAH]

She has done nothing wrong bad has a clean gold plated record so if her employer refused the SA what then ? Goes back to work next day ? 2.5 weeks of money but SA says she can’t work for three months or speak to any
any client for six months.

[Retromau5]

As uncomfortable as it would be, they would be required to go back to work the next day unless they'd been told otherwise by their employer or they were unfit to do so. If the deadline imposed for the settlement agreement passes without resolution, it will be down to the employer to decided how they want to proceed. They may try and renegotiate. My opinion on the settlement agreement is that if they don't want your friend to work for 3 months then they should be paid for this, all accrued holidays paid and the 6 months customer none contact reduced to 3 months.

[ULA]

HR BLAH BLAH I am going to try and cover off all the points since your post yesterday as I have been offline.

Firstly, the Settlement Agreement (SA) needs to make provision for a contribution to legal fees. These days the minimum is around £500 - £750 plus VAT. In my experience for the level of work £500 is at the low end. The upper end of the range is usually enough to cover the costs if the SA is straight forward and there is not much back and forth negotiating terms. However, if protracted negotiations take place, then the solicitor will try and agree an increase in the fees from the employer.

In terms of the suggested compensation your friend is due her statutory payments, i.e. salary until termination date, accrued but untaken holiday pay to termination date and notice pay, all of these are due tax and NI deductions. In addition, there is typically a compensation payment which is what the employer is paying for the employee giving up any rights they have to make a subsequent claim against and for loss of income to cover finding a new job. This payment is not subject to deductions. In terms of this latter compensation payment the solicitor is suggesting 4 months pay which will be gross rather than net.

As I have stated in an earlier post, the solicitor can try to negotiate out of the SA your friend’s restrictive covenants.

I am not sure if your friend has just got some initial advice from the solicitor or whether they have engaged them i.e. they are now a client. As a client the solicitor can start negotiating on your friend’s behalf. If so, then she can ask that the solicitor requests, whilst they are negotiating the terms of the SA, she continues past the deadline of 5pm today to remain off work on full pay.

[HR BLAH BLAH]

Update for you all and again need more help please as it’s taken a nasty turn. Thank you for your help and advice so far.

She got a one line email back from the owners saying your ‘counter offer is rejected’ and they gave no reasoning at all as to why. Even though her offer was as per their own SA restrictive covenants time frames with not being allowed to work for competitors. She replied no problem I look forward to seeing you back at work tomorrow. An hour later she gets an email saying you are on suspension but with full pay and stay at home whilst we investigate you downloading some data from the crm in November last year. They have accused her without any evidence being provided of stealing company data !!!! She now knows this is a scam and they are trying to desperately sack her on the cheap as quick as they can.

She has asked for all the evidence so she can reply and help with their investigation. Her worry has now turned into pure hatred against the man and wife owners as they are obviously now trying to set her up for a gross misconduct so they can exit her on the cheap. She is fuming with rage at them and of course worried sick. Thing is all the staff including her use memory sticks daily for various work tasks so do the cleaners out on site when they bring reports back to the office. She has used memory sticks from day one of her employment for all those years and nobody has ever said a word about it. She is on the road a lot with clients and uses memory sticks for reference etc

The only policy she can find is detailed below. There is no memory stick company policy. So let’s pretend she has downloaded the whole crm but even if she did the below company policy clearly states she just has to hand it back at her employment termination. She is simply working in line with company policy and has done for all the years she has been there. How can she be a thief and steal company data when she is still in employment and is working strictly to the below policy?

Whats your thoughts everybody please, is the business clutching at straws here by calling her a thief for downloading data. Does she simply say I refer you to your clause on copyright I’ve done nothing wrong etc is there anything more she can fight her corner with or is her company on thin ice and there is nothing to see here?

C) COMPANY PROPERTY AND COPYRIGHT
All written material, whether held on paper, electronically or magnetically which was made or acquired by you during the course of your employment with us, is our property and, where appropriate, our copyright. At the time of termination of your employment with us, or at any other time upon demand, you shall return to us any such material in your possession.

[Retromau5]

The downloading of data from the CRM (Customer Relationship Management?) would most likely fall under GDPR, so it would be best to look at the company policy for that rather than property and copyright. As long as the data didn't leave the company premises, was stored securely (in a locked draw for example), and there are no copies of it existing outside of the company now (i.e. whatever was, if anything, downloaded has now been destroyed) then the argument on their side will be fairly flimsy, unless they've got specific rules about the actual downloading of data, and even then it would depend on the type of data used.

As this situation is only at the investigation stage at the moment they are under no obligation to provide any evidence. They are merely of a fact finding mission to determine if any wrong doing has taken place (which is also know as a witch hunt in your case). Showing evidence will only be necessary if it moves on to disciplinary proceedings.

The timing for this is just really sketchy for me. A breach of trust is a good reason to offer a settlement as there needs to be some sort of dispute in order for this to happen, but I don't really see how talking to a union to get advice is a breach of trust. Then an hour after the settlement talks break down the employee is suspended pending an investigation? That's not something I'd like to have to explain my way through from their side.

I definitely think this person really need to take the advice already give here and speak with their solicitor about this. It has the potential to get very ugly.

[ULA]

Retromau5 cke-saved-href="#" href="#" class="b-bbcode-user js-bbcode-user">Retromau5 just to clarify a point you have made SAs can also be useful in situations when no legal action has yet been taken and no actual disagreement exists between the parties.

HR BLAH BLAH who went back with the counter offer your friend or her solicitor (it should have been the latter if they had been engaged to advise on the SA as is required)?

At the moment your friend has to wait whilst the investigation takes place however the following should happen:

1. Confirmation of the suspension in writing
2. She should be invited to attend a meeting as part of the investigation.

In terms of the quotation you have set out in post #22 what policy does this from part of and is there anything else identified in there that may be relevant? The GDPR as mentioned by @ Retromaus5 is also worth looking at specifically related to customer data.

Are all / relevant employees provided with a memory stick in order that they can download client information so they have this available whilst "on the road"?

Is Nov a date your friend last downloaded the CRM database or has she done this since?

Has she downloaded the CRM prior to Nov 2024 and if so how recently to that date and on how many previous occasions?

Would the husband / wife team have been aware of any previous downloads?

They may well be clutching at straws and using gross misconduct as a way to terminate her employment now that an SA on their terns has not been signed. Unfortunately my concern is ,however well your friend argues her case (dependent on some of the responses to my questions above) and if they in fact potentially false allegation they can still terminate her employment. I am not saying they would have a legal basis for doing this but some employers do not always act within the boundaries of employment legislation. If this does happen then what your friend will then have to consider is a potential claim for unfair dismissal.

[atticus]

Sorry, but dowloading customer information onto a removable device without authority is misuse of confidential business information whether this is specified in a contract or policy or not.

Why did you(r friend) do this? Was it really necessary? She appears to have put herself in a very poor position.

Sorry, but this case is not as it looked based on the first posts.

[atticus]

NB I repeat the recommendation to get good legal advice.

[HR BLAH BLAH]

Hello all they are accusing her of the downloads but won’t give her any evidence to back up their claim. They are still coming back to her as it’s still not gone to any disciplinary yet. It’s all just glitching at straws sham to sack her. In all her years herself or any staff member have ever had any issues with memory stick use. All her memory sticks are sat on her desk. The company supplies them to the staff they are sat in the stationery cupboard but plenty of staff use their own anyway. No mention of memory sticks no mention of training for the staff surrounding memory sticks. Nothing been said in years and now this happens !

DATA PROTECTION POLICY

The General Data Protection Regulation (GDPR) and the current Data Protection Act regulate our use of your personal data. As an employer it is our responsibility to ensure that the personal data we process in relation to you is done so in accordance with the required principles. Any data held shall be processed fairly and lawfully and in accordance with the rights of data subjects. We will process data in line with our privacy notices in relation to both job applicants and employees. You have several rights in relation to your data. More information about these rights is available in our “Policy on your rights in relation to your data”. We commit to ensuring that your rights are
upheld in accordance with the law and have appropriate mechanisms for dealing with such. We may ask for your consent for processing certain types of personal data. In these circumstances, you will be fully informed as to the personal data we wish to process and the reason for the
processing.You may choose to provide or withhold your consent. Once consent is provided, you are
able to withdraw consent at any time. You are required to comply with all company policies and procedures in relation to processing data. Failure to do so may result in disciplinary action up to and including dismissal.

You are to exercise reasonable care to keep safe all documentary or other material containing confidential information, and shall at the time of termination of your
employment with us, or at any other time upon demand, return to us any such material in your possession.

[HR BLAH BLAH]

They accused her of the download it happened in November they said. So she’s told them I don’t recall nearly three months back but please send me the evidence and reports etc of what was downloaded she’ll then comment on it but shes told them how can I comment on something that you won’t give me the detail for. Plus all memory sticks are supplied by the business and they are on her desk at work like all her colleagues are also. Even if she had downloaded something it’s sat on her desk at work and she’s at home on full pay !

Her union advised her on the SA counter offer word for word. The fact that it’s been rejected even though it was on the company’s own restrictive time period demonstrates they don’t have a pot to p*ss in and they are looking to sack her on trumped up charges.

[atticus]

I do not see the link between contractual restrictive covenant period and compensation payment.

[ULA]

HR BLAH BLAH I will again reiterate the legal point on SA's that I set out in an earlier post I made.

They require an individual to take independent legal advice from an employment law solicitor who will negotiate the terms of the settlement on their behalf. It should have been that person who went back on the issues of the SA not your friend by way of information provided by the union. That would have sent a message to the company that someone with legal expertise was advising your friend. The response may have been different.

Also has stated, if they do ultimately terminate employment then consideration about making a claim would be best taken once legal advice has been sought.