Compromise Agreement advice

[seoladair]

My employer is finally seeing the light HMRC are breathing down their necks and I will soon receive my smp, 8 months late.

I'd like full contractual maternity pay. The Head of HR says if I get more than smp, I'd have to sign a compromise agreement. She said it wouldn't need to be an exit strategy.

I also mentioned holiday pay (off the record), and said that I'd settle for just a year's worth rather than the whole lot. I understand this would also be subject to a compromise agreement.

Here's my first question. Can I negotiate a compromise agreement which relates only to the holiday pay, but excludes the maternity discrimination and unlawful withholding of maternity pay? (The maternity issue has been so serious that I'd be concerned about signing away the right to mention it again).

Second question - The HR lady also said a proper employment contract is being discussed, but my continuous employment will be from the date the contract is issued, rather than the true date (about a decade ago). I said that this would give me no employment protection and that I would feel vulnerable after all the trouble my maternity situation caused. She said that sex discrimination is a protected characteristic, so I would still have protection from unfair dismissal even if I officially had less than a year's service. I'm very suspicious of this one.....surely if they wanted to get rid of me they could just trump something up then say it had nothing to do with the maternity situation so the protection wouldn't count for anything.
Please help!

I would seek legal advice. I have signed a compromise agreement in the past (voluntary redundancy) and my employer paid for the legal advice. I wouldn't sign one without checking it out as it sounds a bit off that you have to sign this for something you are entitled to.

What's in it for you in signing the compromise agreement? They have tried every trick in the book and finally have to pay you your entitlement - if they don't pay you what they've pay other employees then you can challenge them again. Signing a compromise is a very bad idea because they are not giving you anything 'extra' for doing so. The only benefits are for them.

Also, do not give up 10 years of employment. That equals 10 weeks of pay if they ever make you redundant, for one thing.

In reality, a compromise agreement can be worded to cover/exclude anything you want - provided both parties agree to the terms.

AFAIK, it is a legal requirement that your employers must pay you to take independent legal advice before signing a compromise agreement. Remind them of this, and use the legal advice well.

Thanks for your replies.
They did say they would pay for my legal advice on a compromise agreement.

They are still trying to maintain the fiction that I am a casual worker, and are making out that they are considering giving me an employment contract as a great favour to me rather than as a legal requirement.

Hence they say they don't have to give me contractual maternity pay for this pregnancy, as I still officially a "casual worker".

I didn't know that the 10 years of work equals 10 weeks of pay - thank you for that.

They are still being very dodgy - they tried to call my smp a "commercial payment" but HMRC said they can't do that, so they're now saying it's SMP but without liability.

On continuous employment, I'm going to point out that if they accept they have a duty to pay smp, then they have to accept that I have been continuously employed in order to receive the smp.

If I don't want to go to court for the contractual maternity pay and holiday, I might have to take the compromise agreement to get it. But maybe now they've started caving in on so much, it might be worth holding out for this too, rather than signing the compromise agreement.

To answer your questions...

I would be very surprised if they accepted a compromise deal on the terms you suggest. From their point of view it would be very one sided. They are paying you but getting nothing in return. The point of a compromise agreement is that the employer gives something to the employee (usually money) in return for which the employee promises not to sue the employer. So I don't think your suggestion that they pay but you retain the right to sue would fly. Having said that, the only thing on offer from their side at the moment seems to be that they pay you what they owe. If that is really all that is on offer I would reject the compromise as there is nothing in it for you. Find a solicitor who specialises in employment law to give you advice. They will help you arrive at a reasonable settlement.

Turning to your second question, you are only protected from unfair dismissal in your first year of employment if you are dismissed due to a protected characteristic such as sex discrimination. Whilst I would expect an employment tribunal to look at the reality of the situation and conclude you have been employed for 10 years and are therefore fully protected, it would be much better if your contract recognised this so that there was no possibility of dispute.

By the way, an employer does not have to pay for legal advice but they will normally do so as it is in their interests. A compromise agreement is not valid unless the employee receives professional advice and the advisor signs the agreement.

Hello again! So they've come back wanting to get you to sign a compromise agreement. I'm not surprised tbh.

I would not be signing a new employment contract. You are an employee of ten years standing. Do not waive that right and do NOT trust anything they say to you. Get a good lawyer and get some advice.

I would agree to a compromise agreement and sign away the right to take them to tribunal for what has happened on the following conditions:

1. They pay everything that is owing to you as an employee (holiday pay, annual leave, occupational maternity pay etc etc) plus interest.

1. They apologise and pay you compensation for the discrimination you have faced for taking maternity leave (probably about £5,000 but get your solicitor to look at your case and decide what's reasonable. Then ask for more and negotiate to a point you are happy with).

1. They confirm in writing you are an employee and the date you started.

That should cover off everything you'd get at an employment tribunal if you won but without you having to pay out any legal costs.

But get a shit-hot lawyer and talk to him/her about it.

Lots of great advice here - thanks ladies!
The HR lady said they'd pay for any compromise agreement legal advice. My lawyers habve suggested asking them to pay for all my legal advice. They say they will aim for a very tightly worded comp agreement which will protect my employment.
I hadn't given much thought to what I would do when the contract comes. You're right - if it doesn't recognise my continuous employment, I just won't sign.
My lawyers said that as they are not tax specialists, I should check whether I would be liable for tax if my employer paid my legal advice (I assume because it'd be a benefit?) My accountant doesn't think so. Any ideas...?

Well, when an employer is paying for the legal costs on a compromise agreement they are paying for a service (although the advice is obviously for the benefit of the employee) so no tax implications. This is why the lawyer will bill the employer. If the employer reimburses the employee then there could be a tax liability.

However, if they are paying more I think it depends what "all your legal advice" includes and how the bill is to be settled.

I will need to look into this more.