Negotiating exit from work

[Lostwifehelp]

Can anyone share their experience of going through this? DH is about to go through this as a project winds down and he has nothing else in the pipeline. He has a long notice period (6 months) but I’m guessing they will try to negotiate it down so he will probably get paid for a few months? Any insights appreciated/

Even if they decide to terminate for capability reasons, he is entitled to his six months notice. Failing a performance improvement plan is not gross misconduct after all.

I don’t know how your husband is senior in law but doesn’t know these basics.

Why wouldn’t he be able to deliver?

this all sound a bit fishy to me, are you sure they aren’t sacking him for poor performance and he’s trying to make it sound better

If he's in a senior position in a law firm, then surely he'd be better placed to know the score than most Mumsnetters?

But if he's being put on a performance improvement plan, that's a bit different than his contract coming to an end!! Is he in a union?

@Mortimercat He’s saying he’s worried that if he is difficult they will start looking at his past performance and may consider his lack of performance a gross misconduct issue. Not sure if that’s possible. His mental health is really suffering and I’m concerned sometimes about whether he is able to think in the way that he normally would.

Dismissal for capability is a fair reason for termination, but it is not gross misconduct. I think your husband just wants to leave sooner to be honest.

@Mortimercat yeah but he has nothing lined up at the moment and hasn’t had much success with his job hunt over the last two months so that’s why getting the maximum he can would seem to be sensible to me

That doesn't sound right to me. If his job was on the line for gross misconduct then there'd be a whole process around it.

Are you absolutely sure he's not done something he's not telling you about?

It would seem sensible to me too.

Sounds to me like there is something he isn't telling you.

They can't suddenly decide that underperformance that they have failed to address to date is gross misconduct. Surely, as a legal professional, he will be aware of this?

It all seems very muddled to me. Are they looking to get rid because his role is redundant, because he is underperforming in his role or because of gross misconduct? His entitlement will be different in each of those scenarios, so he would need to approach the negotiations differently in each case.

What is his role? As that will affect what you’re saying (seems odd for example to put a lawyer on a performance management route when he has no clients)

I guess you never know if there might be something he isn’t telling me?

I hope it’s just in his current state of feeling depressed, anxious and at times paranoid that he is just not grasping that underperforming cannot lead to dismissal for gross misconduct.

I assume he’s in Business Services and isn’t a fee earner? Either way, if the firm has an Employee Assistance Programme then I’d suggest giving them a call. It all sounds very muddled: why would he be put on a PIP or accused of gross misconduct just because a project is ending?

If the want to exit him and if he is struggling from a MH perspective, the simplest thing for them to do would be to pay 6 months in lieu of notice. Putting him on a plan when there is no expectation that his performance will improve (and no desire for it to improve) doesn’t make much sense. It doesn’t sound like he is seeing things clearly. I’d suggest he goes to see an employment lawyer with a view to negotiating his exit. Getting 6 months as a minimum.

Is he getting medical help, OP? Sounds like he could do with it.

Do you know if you have access to legal support via your home insurance policy etc? Might be worth getting an opinion from an expert if you can. But nobody will be able to help properly unless he can articulate exactly what the situation is first... maybe the first thing to do is sit down with him to really try to unpick what's going on.

Agreed!

@FriNightBlues His role requires him to bring in work and he has nothing despite trying for a long time. So once the project ends this week he has nothing left to do.

@Radiatorvalves Yes I think he needs advice. He’s managed people out of his team before so he thinks he knows what he’s doing but I’m really not so sure.

@MrsBennetsPoorNerves No he’s refusing to get any medical help unfortunately

Is he a lawyer? If so, I’m surprised at his lack of knowledge of basic employment law.

I have never heard of an employer negotiating a notice period down. He is in a very strong position if he has never had any official warnings etc.

He needs to speak to an employment lawyer. If they are after a settlement agreement they will likely cover his costs for that anyway.

I know a great employment lawyer that I have used many times in tricky situations, just DM me for their details if you want them.

So it’s either a redundancy situation due to volume of work, for which there are statutory requirements that need ti be met in terms of consultation, notice and payments.

Or it’s a settlement agreement between employer and employee. If it is, then again there’s a requirement to have negotiation discussion and formal offer in writing. This can go round the houses as many times as needed. Usually I’d push for a minimum of full notice period as PILON and stat redundancy payment too. Might be able to negotiate some additional benefit continuations or whatever too. Acas have a good guide on settlement agreements that details the requirements from each part. For info PILON is taxed, severance is tax free up to £30k.

If your worry is that an agreement can’t be reached and they’ll dismiss him, they’d have to have a substantial amount of supporting documentation and evidence for that to stand up. Additionally they have to go through warning proceed - all of which take quite a bit of time. From experience, companies don’t do this unless they know it’s full proof, since they’ll just be forced into a tribunal.

The other thing to consider is if this is a potential redundancy situation? He may not be bringing in business because there is none - not because he’s no good at his job. However is he an employee or à partner? That may make a difference to process, but still contractually 6 months is the starting point.

Sounds like a business development manager finding clients for the lawyers, so not a particularly well paid role. If he's been there two years he has rights but if he is already saying he will fail a pip then that's a will issue rather than a skill one. If he is fired for underperforming or failing the pip it is still not gross misconduct and his notice period counts he needs to check his contract.

If they're having without prejudice discussions, presuming these are fruitful, he will be asked to sign a settlement agreement. It is a legal requirement he receives advice on the contents of the agreement, therefore in 99% of cases, the employer makes a contribution to the employee's legal fees in order for them to obtain that advice. Usually £500 + VAT, especially if employer is a law firm.

Get him to make an appointment with an employment lawyer, they can help steer him in the negotiations. They could do that on or off the record (ie off the record, he would be communicating with his employer but have advice from the solicitor in the background).

Poor performance is not a gross misconduct issue.

Whatever the reason for termination (barring gross misconduct) he will need to either be given 6 months notice to work, or have it as garden leave, or being paid 6 months salary in lieu of notice. This payment will always be taxable. He will also receive any accrued but untaken holiday.

On top of this, I would expect him to receive at least some form of additional ex gratia payments. That is the nature of settlement agreements. The employer is trying to avoid any claims of unfair dismissal. By signing a settlement agreement, your DH agrees to give up any and all claims he may have against the employer, in return for benefits. He is already entitled to the notice and holiday by law - so why would he sign without an ex gratita payment? Unless of course there is something he isn't telling you. I've known of clients on the hook for gross misconduct by sexually harassing colleagues who have kept it from their families! I'm hoping this isn't the case for you.

Go and see a lawyer. It will be worth it. I could give you decent advice in an hour. And you could end up with a lot more money (maximum award for unfair dismissal in the tribunal is 12 months salary or around £90k, whichever is lower. You won't get that much with a settlement agreement, but you could comfortably get 3-6 months salary on top of notice and holiday, depending on the circumstances. More if discrimination is an issue). Ex gratia payments are tax free up to £30k. Notice and holiday always taxable. Don't forget about the value of benefits, especially if taking PILON. Restrictive covenants are a negotiating point.

I feel as though posters are being asked to send coal to Newcastle here!

Quite