Settlement agreement vs performance management - help

(16 Posts)
Collateraldamage Wed 05-Feb-14 08:08:27

Being managed out at work - been there over 2 years, fairly senior position. Being offered two options: performance management after a brutal review (which I am challenging) or a settlement agreement. Line manager left the business, conversations happening with HR. Had first meeting this week. Can I get some support and advice please - no other job to go to, v anxious, not sleeping, feeling ostracised at work. TIA

NewJobNewLife Wed 05-Feb-14 08:17:19

If the settlement agreement would mean no mention of the bad review, and you can afford to survive while you find another job (assuming good chance of finding another job), then I would take the settlement agreement.

The problem with challenging the review is that a complete change from "she's no good" to "no problems at all" would mean the manager losing face. HR and the line manager will try very hard to avoid this. I would think the best you can hope for is a reluctant acceptance of some 'excuses' and for them to be included in the review ("Jenny did not complete the report on X. She had several conflicting projects and was unable to balance her time between them or negotiate longer deadlines"). Sort of panders to you, but you'll still be on your way to performance management.

I am by no means saying you are in the wrong here, just what I think would happen in my organisation.

Good luck, whichever route you take. It must be very difficult to keep going at work while all this is going on sad

alli1968 Wed 05-Feb-14 08:33:23

I would approach on a 2 way basis assuming the settlement agreement doesn't have a time limit. Push back hard on the review where you have good grounds to do so, whilst accepting quietly that a settlement is likely to be the best overall outcome. If it becomes more apparent to hr that you are happy to stand your ground on certain issues then they will be more nervous and potentially will increase the offer.

These situations unfortunately are more like poker than a real pursuit for the truth.

I work in town in hr. Dm message me if you want to chat

Collateraldamage Wed 05-Feb-14 08:39:47

Thank you so much for your reply and your sound advice. I have never been in a situation like this before, it is v frightening. It very difficult to keep going at work. I can survive while looking for another job for a bit, I am just looking for the best way out.

Line manager is gone, and I think the reason why they are offering a compromise/settlement is because the performance management would have to be done by someone at board level.

Settlement means we will agree what is said by whom about the situation and it feels like the best way out - I am not happy there, but I agree that I would be on my way to performance management and I don't think I have the strength to go through it right now, so settlement looks like the best way out.

SolomanDaisy Wed 05-Feb-14 08:41:00

Go for the settlement, but push as hard as you can for a good pay off. That will probably mean challenging your performance review at the same time. If the organisation wants you out, it's much better to negotiate a good reference and a bit of money now.

Collateraldamage Wed 05-Feb-14 08:52:18

Thank you - it sounds like a settlement is the best way. Shall I look for a solicitor? Ir do i wait until they mame some sort of an offer?

prh47bridge Wed 05-Feb-14 09:19:32

If they are offering a compromise agreement it is in their interests to make sure you get proper legal advice. If you don't the agreement is binding on them but not on you. Check that they will pay your legal expenses and whether there is any limit on that.

alli1968 Wed 05-Feb-14 09:55:40

Agree with all of the above. Think about also asking for an extension after your leaving date for healthcare if you have it. This is a dont ask dont get zone.

Collateraldamage Wed 05-Feb-14 10:08:04

Great tips - will make a list of things to prepare for negotiations. Can anyone help with the wording of the 'reasons for leaving?' I dont yet Have another Job to go to. I do have two children (8 and 12). What sort of statement would be best?

alli1968 Wed 05-Feb-14 11:28:13

I would suggest a schedule attached to the sett agreement with an agreed reference. We all know that elegantly crafted references generally hide a multitude of sins and that most people receive a standard "she worked as x from a to b. We have no reason to doubt her honesty and integrity 2 liner".

you dont need in a sett agreement a statement a reasons for leaving. You can suggest to HR that you will agree to resign alongside agreeing the terms of the agreemnt which would cover both sides.

Collateraldamage Wed 05-Feb-14 11:55:25

Thanks alli1968 - the reference advice makes a lot of sense. Does resigning have any implications? Not sure what the alternative would be for being unceremoniously fired is redundancy a 'better story'?

Collateraldamage Fri 07-Feb-14 22:51:38

Reporting back - thanks to your good the advice, alli, Solomon, prh and NewJob followed it all and worked a treat. Stood my ground, and they upped the offer substantially after I pushed back hard.

I now have 5 days to accept the offer and they have also offered some money towards legal fees - is £250 enough?

I still feel bereft that it has come to this, but I am trying to take the positives out - I managed to make the best of a bad situation!

Thanks for being there and helping me out - it made a world of difference to know you were there for me thanks

shoom Fri 07-Feb-14 23:13:13

£250 seems low, I'd expect double. If you are in a senior position then presumably your benefits package should be considered carefully by your solicitor, as well as them considering the merits of your case in terms of constructive dismissal etc. Have initial free chats with a few solicitors and sound them out in terms of their expected fee and their availability. Don't worry about the 5 day limit, once you appoint a solicitor they'll push back on that if they need to, and if they are any good at this game.

The compromise agreement is only legally binding if you receive legal advice, so the company are not doing you a favour by paying for the advice. They are protecting themselves. By offering a low amount of money to pay for the advice they put you in the position of your solicitor not spending much time on the offer, or you topping up the fees.

Your solicitor will cover this but the official reason for you leaving employment and the message given to other staff can be included in the agreement. I.e. you resigned, you weren't sacked.

It's a rubbish position to be in. Realistically, if they want you out and you are in a senior position then the performance management can be a subjective "it's still not good enough" rather than an objective "your factory line colleagues have an error rate x and output rate y; your rates are unacceptable". Plus you probably don't want the stress, the inevitable last-minute demands "but we need you to stay late / travel / produce thus report". I'm sure you've seen it happen to others so know how it works. Unless someone in the organisation is willing to admit they were wrong etc it's a horrible position to be in. Try not to take it personally, or expect fairness. And keep note of them not following their own processes.

shoom Fri 07-Feb-14 23:19:16

Sorry, that seemed like accepting the compromise agreement was your only option. If you want to turn it around and can identify someone in the org to help then try, maybe a sideways move could be possible. Either way say you'll consider the CA and show it to a solicitor. You don't have to accept it. It buys you some thinking time.

good luck.

Collateraldamage Sat 08-Feb-14 10:38:57

Thanks shoom - it is a v hard position. I think it's more of a 'your face doesn't fit' as performance management issues have been very vague, I have pushed back hard on all objective pieces with factual evidence (I.e. If the objective was to produce document XXX, here is a copy of said document). I also pushed back on the process - I was completely unaware that performance was being questioned until four weeks ago. My line manager left a few weeks back, and was very opaque about what was happening. There has been a complete overhaul of the board I report into (all new people I don't know and a couple of the ones left I am not close to), so it sounds like am being part of the 'spring clean'

I think the CA is the only realistic option - if I stay they will probably make my life hell, and I don't have the energy or the will to go through it. I am trying very hard not to take it personally, but it just feels demeaning.

I will push back on the legal fees, as the structure if the CA means that I might have to take advice twice - for a 3 month gardening leave on full pa and bens, and then for the 'award' they are proposing on top (which would be tax free)

I haven't seen any docs yet, it's all been conversations with HR - what they said is that the deal is on the table, and I take it or not (this is what they have given me 5 days to do). The or not means I will take the performance management route (although in reality after pushing back I am unclear as to what they are performance managing me against).

Once I say yes, I want the deal, they draft the paperwork. Is this the correct procedure?

honestpointofview Sat 08-Feb-14 10:53:05

Hi Collateral

As an employment solicitor for employers the advice you are getting from Shoom is right. It is for you to decide but frankly my advice to friends to same situation is maximise the amount you get from the settlement agreement (and that means in you case showing why they are wrong re performance) but not to stay. There is no point staying in an organisation that does not want you. It is stressful and if they want to get rid of you they will.
Re fees- lots of employers still only pay £250 as the view is that you have to have legal advice to make the agreement lawful but there is no legal obligation on them to pay the fees. It is a contribution. For more complicated agreements, which often senior ones are, then the solicitor representing you, will ask you to ask for more and they would agree with Shoom that the figure is to low. Sometimes I trade off higher fees as part of the extras someone has asked for.

Re 5 days. I think they are just saying let us know within 5 days if you want a deal. Not that they expect you to sign the deal within 5 days. If it was me acting for them I would say, given it is the 8th, that I would expect agreement to be signed and back with me by 24 and back with a leave date. Have they suggested a leave date?

Re next steps. Yes they will draft the agreement and then you need to go to a solicitor.

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