Help :( Without prejudice offer to mutually end your employment

[Amazonmulu]

This is the most knowledgable group I know so wanted to ask about an employment / legal issue - My cousin came back to work after Mat leave (20w) to be told her job was changing. She was put on a PIP three months after that. And now a month after that they have said they don’t think she can achieve the goals of the PIP (no evidence) and have offered her “a without prejudice offer to mutually end your employment in exchange for a settlement figure”. She’s been there 8y and been given two options: (exact figures removed for confidentiality):

Option 1
Payment of July Salary (subject to tax and NI deductions)

• Payment of 4 weeks pay in lieu of notice (subject to tax and NI deductions)
• Settlement figure approx 3.2 times monthly salary - This figure includes the additional 8 weeks pay in lieu of notice. This figure is not subject to tax deductions and is paid 28 days after receipt of a signed settlement agreement.

Option 2
Payment of July Salary (subject to tax and NI deductions)

• Payment of 12 weeks pay in lieu of notice (subject to tax and NI deductions)
• Settlement figure of just over monthly salary. This figure is not subject to tax deductions and is paid 28 days after receipt of a signed settlement agreement.

She has two small kids and is based in the UK.

My take is that they just want her out asap.

What’s the best thing for her to do? Any advice appreciated. I’ve never gone through this so have no experience. I am trying to help her get a good employment lawyer. She has been looking for another job in the last month.

Is there a risk if she takes too long to decide or if she tries to negotiate that they dismiss her with only basic severance? Her contract says that she has a 3 month notice period.

TIA!

Option 2 seems to be more money in her hand than Option 1 but if her notice period is actually 3 months rather than 1, then they are really only offering 1 month as a settlement. The rest is contractual but they're making it look a bit better by asking her to agree to a shorter pilon period so the tax free element is more.

Given she only took ordinary maternity leave and was entitled to return to same role, this feels a low settlement.
Ask the lawyer to advise on what counter offer may be appropriate.
But yes, agree this is end of road for her there and continuing down PIP route unlikely to be in anyone's interests.

No - they just changed her role. She was supposed to get training but the person that was going to do that left.

Tell her to check her house insurance to see if it offers any legal cover. She can use that to get an employment lawyer to review everything and get her the best deal.

My understanding is under 26 weeks she is entitled to return to exact same role? Definitely negotiate a MUCH higher settlement and look for a new job ASAP.

I went through a settlement agreement. I negotiated really hard, with evidence.
I looked at employment stats for disabled women my age and there was evidence that women in those brackets had higher unemployment levels and were unemployed longer. So that was a basis for asking for a lot more pay off. On top of that I knew there were no performance issues and that my manager had no records at all of our 121s so they couldn't just dismiss me.

You could look at stats relating to post maternity employment, or could point out the links between the mat leave, return to find job changed, no evidence for PIP (I assume there is no evidence based on what you say?) Have they inducted her into new role, kept records of 121s, performance discussions etc? If they haven't,then there's likely no evidence to support the pip.. raising the suggestion that they're moving her out due to maternity should cause concern.

I agree with suggestion to contact Pregnant then Screwed for advice and support.

It’s actually pretty rare that employers would offer at this stage to pay a large or even realistic amount towards legal fees. It disincentives an early settlement and encourages people to fight for more. They will offer something but usually a nominal amount.

I think £500 is the amount an employer has to offer for legal costs in this scenario. They don't have to pay her legal costs in full.

This

OP, your cousin needs to speak to an employment lawyer who can get all the facts and advise properly.

This is not true. They can manage her out and they are doing so. It is a fair reason to dismiss someone if they are not competent and the employer has acted reasonably. The employer demonstrates that by putting someone on a PIP.

Of course she can say it’s disguised sex discrimination (and this may well be true) but if the tribunal decides that the reason she was dismissed was due to her performance and her employer has undertaken the correct process, she will not be entitled to any compensation.

Once a settlement has been negotiated it is possible to get the employer to agree to pay all the legal fees or to divert the settlement to pay them but it’s very rare for employers to offer to do that at the beginning of the process because it’s not in their interests to do so.

This is my understanding too. I'm 95% sure that they can't just change the role if she only took 20w maternity leave

An employer doesn't have to offer anything for legal costs, but they should because it is in their interests. If OP's cousin signed the agreement without getting legal advice it would be binding on the employer but not on her. They would have to pay her the money but she could still take them to tribunal.

She has done 8 years service, gone on maternity leave and then told she has to change her role and then is put on a PIP which is not properly documented - the first port of call to me is Sex and Maternity Discrimination. She should contact PTS and get a lawyer specialising in this. She will not want to go to tribunal but she wants to make sure they pay to stop an expensive legal process.

And even if she does accept the offer for an easy life she should not be signing a non-disclosure agreement or waiver of any of her rights. And she should get an A* reference.

But she needs a shit hot lawyer.

There's misinformation in these responses OP.

Firstly, you can't convert PILON to a tax-free payment as @PinkTonic says so I'm not sure I understand the two offers.

They seem like fair offers if there are genuine performance concerns however the timing with her returning from mat leave presents risk of a discrimination claim that her employer should/will be aware of. A solicitor will likely advise she raises a grievance on this matter if there is an evidence base.

The employer is obligated to make a contribution to legal fees to make the settlement agreement legally binding and £500 is a fair amount. They are not going to cover legal costs on advice outside of the agreement (I.e. her employment) as this is not in their interest.

Pregnant then screwed will be able to provide some good advice if she is willing to share details, similarly ACAS. IME very few people get a better settlement by using expensive solicitors and unless she's willing to take it all the way to ET (which could be two years with no guarantee of success) I would negotiate independently or via ACAS and wouldn't spend anymore money on an employment lawyer than is necessary for the agreement being signed.

Option 1: Offers a larger immediate settlement but with less notice pay.

Option 2: Provides more notice pay but a smaller overall settlement.

Both options are subject to tax and National Insurance (NI) deductions on salary and notice pay, but the settlement figure is not taxed.

A shit hot lawyer will cost around £500 an hour (plus VAT). The median sex discrimination award last year was £18k.

Employment claims are slow, the process is skewed to favour employers and awards are mostly low value.

I'm not saying it's right but there does need to be a degree of pragmatism. The OP's relative is better trying to negotiate a higher settlement value, a great reference and a fresh start.

It's no longer lawful to reduce contractual notice and pay it as a settlement figure instead.

If contract says 3 months notice employer needs to pay 3 months notice and it needs to deducted.