Dh being bullied to accept a rubbish severance package - does anyone know what his rights are? URGENT!

[wilbur]

Dh got called into boss on Fri afternoon and told he was being let go due to boss losing confidence in his work (firm going through tough time, not dh's fault, but he's in the firing line). Boss is a known bully, very bad guy to work for, so dh not too sad to be leaving, but they're offering him a crap severance package, not even his 3 months notice, and have said he has to accept it by 9am tomorrow or he gets nothing. And if he tries to go for unfair dismissal, they say it gets mediated by his boss who decided to dismiss him in the first place. Is that legal? Company HR person is basically saying "accept this small amount of money so we can sidestep the disciplinary process, if you choose not to accept it, we will fight you and you will get nothing." I have looked on the ACAS guidelines and it only seems to say that "where possible" the complaint about unfair dismissal should be dealt with by someone other than the manager who the dismissed person has been working with. Am assuming the compnay will argue there is not other possible person.

If anyone know anything about this, I would really, really appreciate some guidance.

bumping for wilbur!

I'm guessing he's not in a union, but do you have legal cover as part of your home insurance? If so you can get advice on stuff like this.

Has he got a copy of their HR policy where this is spelt out? I'd be surprised.

I'm not in HR myself but hopefully posters who are will come along.

How long has he worked there?

Has he had any warnings about performance previously? if so are they in writing and detailed what is expected of him and by when they expect an improvement?

if so it looks like they would be able to argue in an industrial tribunal that they have taken reasonable steps to rectify the situation and given suitable warning of the outcome if not fulfilled by you dh.

reading between the lines it sounds like they haven't done any of this. he needs to get all of the threats in writing and printed off and taken home in case he is escorted off the premises.

companies can give you a bung to get rid of a person but normally they make it worth the persons while and get them to sign a compromise agreement to waive all rights.

It sounds like they are trying to do this but on the cheap. This is dodgy ground for them as if they don't get it right then you can take them to an industrial tribunal for unfair dismissal.

If he wants to go he should go in with a realistic offer - usually what he would be entitled to if made redundant. if they refuse and go down the disciplinary route then see a lawyer - he should highlight this to them.

Sorry this response sounds a bit over the place but on my phone at the mo.

I'm not in HR but I would say that if boss has a problem with his performance then they should have gone down the disciplinary route. They can't just push you out of the door with a couple of hundred quid! There are laws to protect employees.

If it were me, I would go in tomorrow and tell them that I wasn't prepared to accept the offer and need to take further advice. Get on to ACAS in the morning - they are very helpful.

Employers have a duty of care to their employees. If they have a problem with performance they should go through a process to address the issue. If, on the other hand, they are planning to make your DH redundant likewise they need to go through a consultation process. The fact that they have done neither would not stand up at tribunal.

I faced a similar thing myself a few years ago. My boss just decided to sack me one afternoon. He very kindly offered to pay me until the end of the month. He told me I didn't have a leg to stand on as I had worked there for less than 11 months. After taking a bit of advice, I went in the next day and told him he couldn't just push me out of the door and he was, in fact, in breach of my contract. I requested a meeting with him and the HR Manager to discuss it all. His face fell... They ended up paying me three months salary tax free. (I was on one month's notice.)

I hope this helps a bit. I'm sure an HR bod will come along shortly with more advice.

Best of luck.

Thanks so much for your responses, I really appreciate it. He has been there just under a year, which it seems means that he has few rights, or that is what they are telling him. He spoke to a solicitor yesterday who said his situation was a tough one, although the company should at least pay the lump sum they are offering tax free. When he went back to the company about that today, they refused again to make any changes to their offer or to look at the possibility of doing a tax-free lump sum. I am so furious, I would love for him to take them to a tribunal - he has had no warnings, nothing in writing - his boss never puts anything in writing - and it's all so effing dodgy I could kill someone. And dodgy boss is always in the media gushing about his fabulous company.

But dh is very, very low and I don't think he can face a fight, and also, what does he do about a reference? He works in a very incestuous field and everyone know everyone - and he's worried that a bad outcome and a fight with a previous employer will make him unemployable elsewhere.

Ok, he's been there under a year so he doesn't have ordinary unfair dismissal rights, how much just under a year 51 weeks or more?

Assuming he doesn't then he has very few claims he can take to an employment tribunal, as he cannot claim unfair dismisal, and then it doesn't matter whether he was good bad or indifferent at his job provided he was not dismissed for a bad reason (discrimination, breach of health and safety, trade union activity, whistlebloiwng etc)

In which case what he is entitled to is his notice (net, there is no obligation to pay it tax free nor any right to have it tax free its just an extra statutory concession which permits it) and his holiday pay. If the offer is for that sum, frankly he should take it.

Oh and there is an argument that if the working relationship is broken, then there is no entitlement to notice. I have had that run both ways in the tribunal with mixed results, which means if the company really will fight him they might try and argue he doesn't even get notice, but that's very hard to do sucessfully, and i doubt from what litttle you have posted it would work here.

He's been there approx 10.5 months, but first 6 weeks was on a short term contract which went to perm. The sum they are offering is just over 1/3 of his notice sum net, ie what he would get in his bank account is just over a month's pay not his 3 month notice period. If they had offered his proper notice, he would have grabbed it and run, no problem.

It sounds like they have him over a barrel.

So the contract says he should receive 3 months notice (check if it says anything about pay in lieu of notice) and he is being offered 1. He has not been employed long enough (a year) to claim unfair dismissal. Statutory redundancy pay is very low - you can check the rates on line. Is he being made formally redundant?

Someone on here will know but if it is redundancy ( no work to do etc) then do you still have to give people their notice period (or the money in lieu of it)? Perhaps not?

if he's been there 10.5 months but 6 weeks on temp contract so permanent contract for 9 months, then with 3 months notice as required in his contract he might be over the 1 year mark. I don't know if this is a strict legal requirement or just my HR being cautious but i have always been told that if i want to terminate any contract before 1 year (to avoid the need to go through the extensive performance management process) then i have to make that decision in sufficient time for the notice period to expire before the year is up.

hopefully someone with better employment law knowledge than me will be able to advise if this is legally required and therefore worth a try.

No not formally redundant, Xenia, they're just saying he didn't do a good enough job - as I say, they gave no warnings but since he's not been there long enough, that doesn't apparently matter. And tbh dh has realised his boss is a pathological liar so it's unlikely he could engage in any kind of fair fight.

MrsW - I'll get him to check when he was made fully permanent - I bet it falls just short of the year.

Do I understand correctly in that if he was to go in tomorrow and hand in his notice then he has a 3 month notice period for which he is entitled to be paid? If that is the case he should do so as he will not be able to claim unfair dismissal and it sounds like they want him gone regardless.

I may be wrong on this one as I am not an expert in contract law but I don't think there is a qualifying period of employment for claiming under breach of contract which they would be if they try to terminate without giving the full 3 months notice.

As for your solicitor telling you that you should get a tax free lump sum, this is only allowed under HMRC rules when the job loss is due to redundancy (retiring is different) and then it is only the first £30k. If you do see another solicitor make sure it is one who practices in employment/contractual law although a quick google search should help. If you do the google search just make sure that you are reviewing the correct legal situation for the country in which your DH husband's work is recognises as applicable - it should state this on his employment contract. The reason I say this is that if it is under say Scottish law it may be slightly different to English law but again I am not expert in this field.

OK. I would push for his 3 months notice net, assuming he does have that 3 months in his contract and there aren't get outs for any reason. To avoid this the company would have to argue that he has no etitlement to notice, but I really really don't think they would win, asthey would hve to say tat the workin relationship has broken down sufficiently to undermine th relationship of trust and confidence, and that that is his fault, and that as a result the contract no longer applies. It's possible but not likely that they would win on that.

I would however give up on the tax issue, it inly applies if the company agrees that it applies and are willign to do it. There is no right to this (even in a redundancy, or any other compensation for loss of employment or office)

As his claim in in contract he could waive it if he signed something even if it is not a compromise agreement. Also he could waive it if he pockehow the money i paid, so be careul of that

Wait - 3 months notice does not mean you get 3 months' money. They can make you work every single day of that notice and often do. If they are asking him to go now and he is not redundant then he should be paid the3 months' mnoey unless he has breached his contract so badly he is lucky not to be kicked out immediately in which case some money may be better than nothing.

I believe you are entitled to a tax free lump sum if the employment contract does not provide for pay in lieu of notice. If it does you aren't or something like that. It is worth checking the employment contract and the rules. It's a tricky little point.

Hope I'm not too late - there is precedent in employment law that a tribunal can infer from an unfair dismissal just before the qualifying period (one year) is a deliberate attempt to undermine the claimant's employment rights - in which case they can act as though he has worked for the year.

If a boss calls you in like this and says 'you're fired' it is always unfair. Contact home insurance and see what is available for legal cover and make an ET claim. Even if he has accepted 3 months notice - he has three months to make an employment claim that he was dismissed in order to avoid him getting employment rights - there is definitely a case here.

note if he did go in an hand his notice in then the relevant claim would be constructive dismissal - they made it clear the contract was terminated whether he worked or not, and so he resigned.

also don't use the 'when made permanent' date - the issue is has he been in an employment relationship for a year/nearly a year (see above). It is common for employers to try this one and not get away with it.

To repeat - if he is close to a year, you can legitimately argue that the dismissal (constructive or otherwise) was planned in order to deny him his rights. Go for it, I hate employers who act like this..

OK. They tribunal will not infer that this is a deliberate attempt to avoid unfair dismissal rights. That only applies in week 51 It may however include the temporary 6 weeks and so if that gets him to week 51 check again and take legal advice on the precise circumstances. Other than that the law is that if you break a contract you are assumed to break the contract in the way which is most favourable, namely that the employer will break the contract in order to avoid unfair dismissal. Tribuanls are used to this and have no qualms in chucking unfair dismissal cases out if the perosn has 50 weeks or less service.

However if your Dh is required to work his notice then he would go over the year than he would have unfair dismissal rights. This is why he is presumably being paid in lieu.

Worried betty if you don't have a years service it is irrelevant whether the dismissal is fair or not, there is no jurisdiction to claim.

And Xenia no-one is ever entitled to a tax free lump sum. It is permitted but not required that the employer does this. A number of my clietns refuse on principle.

I agree. You can be forced to work the notice not that he or they will want that here. The point was about when it is tax free and when not which I think is based on what I wrote.

Are we saying someone is in month 11 and entitled to 3 months' notice. They are sacked immediately for gross misconduct. They cannot claim unfair dismissal. Or if they are asked if they will leave right away whereas if they did not agree that they would be given 3 months' notice and thus be over the year period for UD. Is that one of the issues here?

He is contractually entitled to 3 months notice regardless of length of service. Does his contract have a, pay in lieu of notice clause? If not he can insist on working his notice and then will gain more than 12 months service. I think you need legal advice to see if they are in breach if contract and whether you can sue for losses including ability to claim unfair dismissal.

He is probably over the 1 year mark because the 1 year does take into account any contractual notice period. As long as the permanent contract began before 1st June he should be fine. I am not sure about the position if the permanent contract began between 2nd June and 15th July to be honest - it could be grey. If the contract was signed after 15th July he is definitely not able to prevent dismissal, but still has rights to notice period pay.

He should tell HR he is quite happy for them to proceed in any way they like so long as they follow UK employment law, and that he has been advised of his rights as follows:

1. Whether resigned, dismissed or made redundant, he is fully entitled to his contractual notice period and will insist on either serving it or being paid in lieu
2. Being threatened by HR that they will 'pay him nothing' is rather a depressing experience to go through, but won't affect his legal rights in any way and he will be fully prepared to exercise them in a tribunal in order to obtain both his notice period entitlement and any redress for unfair dismissal.
3. With regards to the method by which the company decide to get rid of him, he would again prefer that they follow due legal process and that given that his length of service (including as it does his notice period) takes him over the 12 month period, he would prefer HR once again to look to legal requirements in this regards, because the company is no longer entitled to dismiss him for any reason.
4. If the company intend to make him redundant then can they please confirm in writing the reasons for such redundancy, the amount of redundancy pay being proposed, and whether or not they will require him to serve his notice period or whether he will be paid in lieu instead.
5. If the company intend to dismiss him for capability can they please indicate clearly the capability concerns that they have and the procedural steps they will be taking in order to give him enough time to address their concerns and so avoid such a dismissal. In the absence of such procedural steps, can they please indicate the amount they are proposing to offer him on top of his notice period and vacation entitlement, in order that a compromise will be reached that is acceptable to all parties

ignore bit about 2nd June to 15th July - irrelevant (not thinking 100% this morning).

By the way, if they just say 'see you in court' and pay him nothing then he will have to submit claims to an ET. You can fill them in without a solicitor and you'll have to wait for a hearing. Tribunal will be fairly straightforward in enforcing his contractual notice period entitlement (so long as it is clearly worded in contract), any other claims will depend on what company says.

Of course, company may even then not hand over award made by tribunal, but they just get themselves deeper and deeper in the shit if they do this. Chances are they will bluff and then settle just before tribunal (settlement sum probably being notice period plus vacation entitlement plus nominal sum).

Thank you stillsquiffy and others, that is very helpful and thank you for the wording. All dh wants is his 3 months notice money and accrued holiday pay, he's not asking for anything on top of that. I also think the company will bluff until last minute and then cave. I can't see them wanting a full tribunal, because as I mentioned the head of the company has a small media presence and is fond of the limelight. It's unlikely he would want his firm held up to be a terrible, terrible place to work. It will all depend, however, on whether dh can face it, and whether he decides that the risk of a bad reference is too great.

stlls, that is my view too - that if you arei n say month 11 and entitled to 3m onths' notice then y9ou can claim unfair dismissal as 3 months' notice takes you over the year so employers have to get the notice in and with time to expire before the year is up.