Employment tribunal, redundancy and your rights (or lack of)

[treetop122]

Any knowledge on this is gratefully received!..

Earlier this year my parter was named in an employment tribunal. The claimant was challenging unfair dismissal from the company and my partner, as her manager, has been personally named in the claim. It is my understanding that managers can be personally named on the claim.

my partner has taken redundancy from this company and has received his offer. In the offer (which is only £1000 more than statutory) it is written in to a contact that my partner has to return to contribute to any further tribunal hearings. This he has agreed to. However it goes on to say that he is not allowed to say anything negative about the company in regards to the tribunal?

is there anyone who can advise if this is legal? How can the company effectively blackmail by paying a little bit more for only a positive contribution…or is that a normal legality and they are entitled to guarantee support and a positive statement if the tribunal goes to court?

unsure if this is standard or not?..

thanks in advance

If it’s voluntary severance, they can write anything they like into the terms (within reason). He doesn’t have to accept (but he won’t get the extra cash).

Presumably if he were staying there he would be a witness for the employer? What’s the issue?

Not a lawyer but surely any witness has to swear to tell the whole truth and nothing but the truth and potentially therefore this condition would be unenforceable to the extent it was requiring your partner to give false testimony? It smacks to me of the employer potentially wanting to pin the blame on your partner, but of course he would need to be able to defend himself if he was being accused of mistreating his managee. I hope that helps...

I don’t think there is an issue as such.
it just doesn’t feel right to be able to write in to a contract that you aren’t able to say anything negative about the company during the tribunal.
not that there is anything that negative to say. But it feels very controlling. And if during the tribunal he tells the truth, and the truth just so happens to be negative, could he then get in to trouble (ie sued?)..

just seems odd that it’s written in to the contract like that?

No, he cannot be sued by the company on the basis of his evidence to the tribunal.

Without seeing the exact wording, it is impossible to be sure what they mean. They cannot put any limits on what he says in his evidence. However, they can stop him from saying negative things about the company elsewhere. If their intention is to stop him bad mouthing the company's behaviour when talking to other people, they are probably in the clear. If they are trying to control his evidence, they are definitely in the wrong.

He will have to take legal advice if they’ve offered him a settlement so a lawyer will advise him on this.

However given individuals can only be claimed against personally in discrimination cases, not unfair dismissal claims (unless they are the actual employer ie a partner or a sole trader) has he been honest with you about the circumstances?

If the claim is only for unfair dismissal your partner cannot be a named respondent if he was only an employee of the company. If it is for discrimination or whistleblowing he may be a named respondentand be personally liable.

If the claim is only for unfair dismissal he may be named in the grounds of claim as a relevant person but that won't make him personally liable.

If he is leaving and accepts extra money to his contractual entitlement, his employer can offer that to him.under a settlement agreement which allows them to include a term that he os obliged to attend the Tribunal/ provide evidence etc if required.

He can turn down the extra money, and then they wouldn't be able to require him to attend.

Also as someone else said, for a settlement agreement to be binding he has to get legal advice as to the content of the agreement, and he should discuss the clause that says he can't say anything negative. He is obliged to tell the truth in the ET so a broad clause saying he can't say anything negative sounds very problematic and should probably be removed

You say that the clause forbids him from saying anything negative "with regards to the tribunal" - is it possible that you've misunderstood and this is a non-disparagement clause? As in, they don't want him discussing the details of the tribunal after the fact in a way that would make the company look bad?

He will need to get the meaning of this clause clarified when he takes his mandatory legal advice on the settlement. If you're correct that it suggests any payout is contingent on him not saying anything negative about the company while giving evidence at the ET, he should ask for it to be amended/removed.

IAAL and I’ve come across this recently.

In our case, a witness simply refused to answer questions after voluntarily giving a statement. Technically, any non disparaging statements clause DOES extend to giving evidence VOLUNTARILY in an ET. So they have a choice to either break the terms of the SA, or refuse to give evidence/answer specific questions.

The exception is if they are called as a witness by a witness order - in which case, they have to answer questions, even if the answers are negative, and the employer cannot then sue them or take action on the back of it.

So what the employer needs to do is make a witness order application compelling him to attend, as that would mean evidence can be given freely - because a witness who attends but refuses to answer questions does not go down well! Otherwise, if he attends voluntarily, he may be forced to breach the SA anyway, which isn’t exactly an ideal scenario.

It’s also worth checking if the payment in the SA was conditional upon him giving evidence in future - as opposed to a warranty, which might make it less likely they’d be entitled to recover the entire SA payment from him (they could still technically sue for damages, but it wouldn’t be a fundamental breach of contract).

Id say he probably needs his own legal advice (but my gut feeling is that it wouldn’t be worth the employer suing him for the £1k they paid him even if he did breach, as their legal fees would far outweigh that!)

If he hasn’t signed the SA yet, he could ask for it to be removed. And they might not even want him as a witness anyway. But if he’s a named respondent, that would be different, as he could end up personally liable for compensation so needs to be able to freely slag off the employer!

Your partner cannot lie to a court and should not have signed anything that was going to restrict his ability to tell the truth to a judge.

I would seek legal advice quickly...

He hasn’t signed yet and will be seeking legal advice on Monday.
so it doesn’t seem standard by the looks of it! I wonder if he took just statutory redundancy if he wouldn’t have a contract to sign?
it’s been such an awful year, we thought we were almost rid of the stress!!
thank you for all the replies

He shouldn't have to sign a settlement agreement to get his statutory or contractual entitlements, only if it's enhanced.

Again, you cannot contract out of statute law, if he is compelled to give evidence then he has to, that clause is not legal and he should raise it.

They have to ensure he has legal advice before signing!