Only one offered a settlement instead of redundancy - legal?

[Chillymoanday]

I've been approached with a settlement during the start of consultation but I am the only one who has been approached.

Its a decent figure, but for a few reasons, I'm not inclined to make this easy for them despite the settlement making it fairly clear to me that I'm the employee they want gone.

Can I use this later as proof the decision to make me redundant was already decided?

I think it's been mentioned....

But it's a long thread (full of terrible "advice").

We offered to settle a case once where we knew the race claim would be thrown out (it was) and that we (employer) would lose on the remaining unfair dismissal claim, on process (due to an admin error).

We offered £2k as a "costs avoidance" payment. He declined. He wanted £25k. He was never going to get anything like that.

He won, on process. But the judge ruled in our favour for cause. The judge said that, had we followed a fair process (as we obviously should have done) it would have taken an extra week. The reason for dismissal was fair. So he got a week's pay which was c£250.

It cost us c£3k to defend.

I am a qualified employment lawyer OP.

Your employer is entitled to have a protected conversation with you under S111A Employment Rights Act. Link to the legislation here - https://www.legislation.gov.uk/ukpga/1996/18/section/111A

There is also an ACAS Code of Practice outlining the guidelines for such discussions to lawfully take place - https://www.acas.org.uk/acas-code-of-practice-settlement-agreements/html#settlement-agreement-discussions

And in practice, an Employment Tribunal will refuse to allow any evidence to be admitted that relates to a genuine pre termination discussion. There was reported case law this week when actually, the conversation arguably did contain some unambiguous impropriety, but the EAT still held that it was not admissible in open proceedings.

And actually, you can technically report them to the police if they fail to give you a breakdown of your statutory redundancy payment, as it’s actually (again technically) a criminal offence….!

You’d still get the redundancy to which you are entitled, less whatever you’d spent on lawyers

(I haven't read the whole thread mainly just OP's comments). OP I see you've left the thread but on the off chance you look back in, just bear in mind that if you sign the settlement agreement it usually includes clauses to prevent you making a claim against them in the future.

If you have been a victim of SA in the workplace and they haven't done anything to deal with that you might have a claim there as your employer has a duty to keep you safe. You could also have a claim for unfair dismissal under the whistleblowing stuff if you think this is targeted at you due to you reporting SA.

Anyway, I hope you've seen an employment lawyer to get thorough advice and good luck!

It cannot prevent personal injury claims nor criminal reports.

Not meant to talk about it with others ? Not meant to by who? it is up to you whether or not you talk about it and similarly up to the others too./ That mindset only sets a divide and conquer aspect, you talk if you want to. Now despite many having an opinion that they can do what they want your only way to find out is to get a lawyer to give you advice. You may be able to get initial advice free by many lawyers, also if you have say car breakdown insurance, travel insurance, home insurers then many such insurance companies and organisations offer free legal advice, it is general; therefore not limited to travel or household or motoring or whatever and it is a bit cumbersome - you ring up and either a clerk or a junior will answer and go and ask one of the legal partners then they`ll come back and say X Y Z etc to you, sometimes you might say no you have misunderstood, I did not mean A I meant B & C, etc but you can find out useful general advice, if you bought/sold a house etc even some years ago then a quick call to that solicitor and they will probably answer or even put the question to a colleague who specialises in your subject and they often do this for you for free or for peanuts, just asking you to remember then when you need a solicitor or recommend to friends. The important thing is to get advice from those that tend to know the law/tribunals etc and not merely the gen public on a forum. That way yopu have a far greater chance of deciding your next step. Good luck whichever decision you take.

Every settlement agreement I have ever seen contains a confidentiality clause that prevents both the employer and the employee talking about it to anyone else. The agreement is legally enforceable. If OP talks about it to anyone other than her lawyer, the company can take legal action against her. Do not encourage her to talk to others.

Whilst OP may have legal cover through home insurance or similar, it is normal practice with a settlement agreement for the employer to pay for the employee to get independent legal advice. It is in their interests to do so as the agreement is not enforceable unless the employee has had such advice. If OP uses her insurance, she is unlikely to get better advice and she won't be able to claim the cost of legal advice from her employer.

Just to add, if OP discusses the settlement agreement with others before signing it, it may give the employer grounds to dismiss her for misconduct.

Also usually prevents you from speaking to others in your position about your settlement. This happened to my husband. They settled (generously, plus costs) before it came to court because they believed he could prove they were lying. Also probably because it was cheaper than taking it further in court, with the increased costs on both sides.

True but you would need to agree to the confidentiality agreement prior to getting it. If they have not got your prior agreement before giving you the offer then it is not valid. Its in the same way as some firms try to put conditions into a sales contract once it is closed , example they ask for a deposit then give you a receipt saying the deposit is not refundable, that would not be valid. Same with a car parking ticket issuing with the words ticket not transferable, any such conditions must be at time of making offer not once you have accepted it, a contract comprises of offer and acceptance, once those two parts are done then neither party can put conditions upon it, the contract is closed, it would need both parties to agree any variation to the contract. It is amazing how many contracts, including by big firms and local councils, fall down in that respect. So if theyve made you an offer without prior agreement to confidentiality prior the offer being made then you are allowed to do what you want with it, they can not add that term onto it.

No, you don't need to agree. If your employer tells you to keep it confidential, sharing it with anyone else is a disciplinary matter. Unlike a sales contract, there is a pre-existing contract that applies.

For the agreement itself, the employer will not agree to it without the confidentiality clause and nor should the employee. It protects both parties.

Unlike a sales contract, there is a pre-existing contract that applies.

It might well apply if it is in your contract of employment (and as such is a reasonable condition - that would be up to a court to decide), certain things are confidential at work for the general good of the business itself and that could be quite reasonable, anything that could be construed as bully boy tactics would not be though (here in the UK). Your employer would not be allowed to bully you with such. Plus your rights as a whistle-blower has some legal protection too. Again up to a court to decide ultimately as I said, ask a lawyer for advice rather than a forum of normal people, we might have some idea of what things should/should not be but an experienced lawyer will be able to give you a clearer picture of what is and what is not.

Not totally unrelated, I had a beef with a well known holiday co. Our room was supposed to have a balcony, it didn`t. We arrived late evening and complained to reception, they asked us to come back to reception the following morning, no rooms with balcony available and no other hotels free in town (it was a particularly busy period), we reluctantly settled (eventually) on a partial refund in cash, not ideal but the best compromise, instead of a balcony we had a wall with a small square window and had to stand up to see out, rather spoilt it because we like to spend large parts of the evening looking out at the activities etc etc so it is genuinely a large part of out holiday enjoyment so lack of such did rather detract from it. Negotiations with the hotel manager were a bit stalled so I went over his head and contacted the UK head office of the tour operator, greatly increased offer so we accepted, our genuine threat to get the press and trading standards involved did make them take notice so yes it worked.
The following day at the welcome meeting, just as the tour reps were finishing off a fellow holiday maker stood up to speak, he had encountered the same thing and discovered they habitually offered rooms with a balcony where non were available for weeks and months beforehand, he had got them to put him in another hotel and he was very happy with it but had decided to warn more recent guests about this sharp practice. Some at that meeting were inclined to settle for a very low value refund until I stood up and told them of the far higher value refund I had got by contacting head office, a few of them did likewise and succeeded in getting an increase, most settled on the paltry amount. Apparently one rep commented to a few that I should not have shared my info with them because it was confidential, in a loud clear voice I told her in no uncertain terms that I had every right to share my info with whoever I decided to and I had not signed any confidentiality clause, all I had signed was a receipt for acceptance of the cash refund - which, incidentally, then kills any subsequent claim stone dead, I received a cheer from some in the crowd too and the tour rep skulked away silently. If ever things in a contract go to court then such court will do its utmost to determine the conditions of such contract, whether a contract of employment or for goods/services. If, exceptionally, after all their endeavours there is not clarity then such a court (in the UK) will always decide one way - in favour of the weaker party to the contract - the employee against the employer, the customer against the insurance company or travel company or supermarket etc etc.
Conditions must be adhered to by both parties and may not be altered unilaterally by one party without consent of the other party, they must be clear and legally fair too.
Talks of "this is company policy" and "these are our usual terms and conditions" are hogwash unless such policies and terms are stated before acceptance , that is why you should always read all terms and conditions to contracts before you accept them. You should always know your rights otherwise some of them will attempt to drive a coach and horses through them.

Your rights as a whistle blower are unrelated to whether you can talk to other people about a proposed settlement agreement.

The courts have already ruled that a requirement for confidentiality around settlement agreements is reasonable.

The employee can clearly disclose the agreement to their lawyer or trade union representative. If the employer allows the employee to bring someone with them to any meeting to discuss the agreement, they can clearly disclose it to that person. Disclosing to anyone else before the agreement is signed is likely to be a disciplinary offence which could allow the employer to dismiss the employee without any compensation. Once the agreement is signed, breaching the confidentiality clause is a breach of contract and could lead to the employee having to hand back some or all of the money they were paid by the employer.

Your examples of sales contracts or what happened when you were on holiday are irrelevant to employment law.

For completeness, it's usually OK to disclose to close family members but they are then bound by the duty not to disclose more widely.

I work in employment law and have seen many cases between employer and employee.

Unless you have a protected characteristic and they have not provided reasonable adjustments, sign the settlement and leave quietly.
Why stay where you are not wanted and also you are likely to need a good reference.
Move on.

Given how you’ve responded to pretty much every piece of advice on here with ‘yes but…’ I can see why they’d want you out.
take the settlement.

Depending on who the perpetrator is, testifying against the perp may be tantamount to testifying against the employer.

A good friend working for a very large comms company was the only person offered redundancy and was told if he fought it, he would only get statutory