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?

They have already started the process, I have a letter confirming my team is under consultation for a redundancy process.

It was after the second group consultation after they confirmed we were all at risk and gave us the proposed matrix that I was called back in and offered to have a "without prejudice conversation", asked what that was and they said they couldn't tell me unless I agreed to talk about it

You’re not going to get more pursuing this. Take the settlement.

Let me be clear about something. No matter what you think, it is always about money. And the second that lawyers become involved, it is then only a matter of THEIR money, and how much they make out of it. No matter what your reason, if you are so angry that you would throw away money for what you think is revenge (it won't be, but that's another story) then you are not thinking right. Take the money and a nice agreed reference that says what a wonderful person and employee you are, and walk away. If you think they've done the worst to you that they can, think again - they haven't started yet. The best revenge you can have is to walk away, get a new job and succeed.... to literally not give a damn about them. Do not let misplaced judgement ruin your future.

Tbf no one has really said they are qualified, appreciate people could lie but like I say, if someone could say "im qualified and you're talking shit because XYZ <legal stuff>" then I could do a bit of research. Instead of focusing on telling me to get more ££ which I've said I don't want. I know that's weird, but it's really not my driver here and not what I need mentally.

Plus been on MN long enough to kbow the Work board doesn't just attract HR/legal people (which is a good thing!)

You're on a hiding to nothing with this. Just take the settlement and get out of there.

When one was offered to me it was clear that there were two options for me. Enhanced settlement pay or statutory redundancy pay if I didn't sign the settlement agreement.

My solicitor said that challenging it at tribunal was almost impossible and I would end up financially significantly worse off.

Is your employer offering you a "without prejudice" settlement rather than redundancy so they can be sure you DO NOT go to the Police/make a fuss in some way?

If so, and if redundancy means you CAN make a fuss/go to the Police AND you want to make things difficult for the employer......refuse the settlement and take redundancy and sing from the rooftops

So you'd cut off your nose to spite your face? That's just stupid. I can see why they want you gone.

The way to make life difficult for them would be to negotiate a long drawn out settlement agreement, accept it, get a new job, and then go to the police with whatever evidence you have of their wrongdoing. Are people coming to physical harm because of what they’re doing?

You have no idea what the others have been offered or not. For lots of reasons the others might not be sharing what they discussed or agreed to with their employer. I wouldn’t risk it.

Even if it was proof enough to win an employment tribunal for unfair dismissal, you are very unlikely to be awarded more than the settlement they are offering you, and it could take a year. There's cashflow to consider, so I'd take the offer. But if it's all about winning, sure, give it a go.

Your alternative is to turn it down, go through the redundancy process and if you think it's predetermined you then appeal.
One of your appeal points has to be the resolution you are seeking so think carefully about what that needs to be.

At the end of the day I would accept a SA any day of the week. You'll get PILON, accrued holiday and your redundancy pay. Redundancy up to £30k is tax free, plus any other amount they offer you if you if the total doesn't exceed £30k.

They are telling you they don't want you in the organisation and are letting you go quickly and legally. Nothing will change that so try and get them to increase the offer and chuck in something like outplacement support.

Don't get a big fancy expensive lawyer - it really doesn't help and you'll end up paying for them out of your settlement agreement!

Good luck OP

As plenty of others have said, the legal position is that there’s nothing wrong with offering some employees at risk of redundancy a settlement agreement and not others. It’s perfectly standard where a company already has an indication of which candidates they’d prefer to lose or whom there wouldn’t be an ideal alternative role for, and usually makes sense for both parties.

You can choose not to accept it and go through the redundancy process. If they already know that they want you gone, they will make sure you’re one of the candidates made redundant. Unless you have a protected characteristic and can make a good case for believing this is why they have chosen you, or can evidence that you are being made redundant for an unfair reason i.e. because you have raised a grievance or are a whistleblower, you’re on a hiding to nothing. You aren’t going to make them suffer.

Edit: indeed your best leverage here would be to whistleblow whatever allegations you think deserve police attention. It’s also your obligation to do so. But if you’re adamant you aren’t going to report criminal activity then that’s not going to help you.

You could certainly give them a counter offer.

However, if they stick to the original offer, and they probably will, they will probably go on with the redundancy process, select you and ask you to go with statutory redundancy.

Unless you can prove it isn’t a redundancy or that you are being unfairly dismissed due to some protected characteristic, you are probably on to a bit of a hiding for nothing,

In any event, they have to pay for your legal advice in accepting the offer and you can discuss the above with your solicitor.

I understand that more money isn’t what you are looking for, but it’s likely to be the best outcome. If you point out that it looks as though they are not following a fair process, which is possibly true, they can either offer a settlement to mitigate that risk or they can revise the process so that it appears fair. Either way it’s probably you who is going. You can’t even be certain that you are the only one offered a protected conversation since they are confidential.

But you are getting advice on here, you just don’t like it.

some may be from legally qualified people, some may not, but it’s been broadly consistent (and correct)

This is not a TV drama. As mentioned several times, the best way to hurt your current employer is to maximise your pay out. You will not hurt them by taking them to tribunal, only yourself.

Take the money, get a new job, then recruit your current colleagues to join you - that’s the best thing long term for you.

A number of us on this thread have been in similar positions. I’ve been there 3 times in my working life. The only ‘win’ for you is to take as much money as possible.

It’s not just about the money - it’s about the best outcome for you and your mental state, which just happens to coincide with getting yourself the best financial outcome.

"I wouldn't act on any advice from here, but it would give me a starting point, especially if someone could say "one person offered a settlement out of a pool could point to a sham redundancy because of XYZ" type thing. Then I can do some research myself (feeling empowered etc)"

No one is going to be able to give you that advice because it is wrong.

Here is one website that explains the without prejudice rule. Any claim that the redundancy process is pre-determined would be the litigation in which the offer cannot be used. https://www.manorlaw.co.uk/article/what-is-a-without-prejudice-offer-183/#:~:text=The%20without%20prejudice%20rule%20prevents,them%20in%20the%20litigation%20process.

Are you the most expensive OP? It could be as simple as they need to cut £x from their budget and so getting rid of you would be the easiest way to meet that requirement. That is something that happens in practice.

No, this will not be seen as proof. They will run a redundancy, score everyone, make sure it’s all above board, and you will end up scoring lowest and be made redundant anyway. It is very, very hard to claim any extra money over redundancy pay from an employment tribunal unless they are very stupid and make the selection clearly discriminatory. It’s fine for example for them to include “behaviour” or “culture” in the scoring criteria, and it seems unlikely you will do well there.

so if the settlement is higher than redundancy I suggest you negotiate a bit for whatever is important to you (extra time, training, reference ect) and take it.

You can be offered voluntary redundancy at any point and this often happens during consultation.

things to consider:
will you likely be made redundant anyway and will compulsory redundancy pay the same or will it be lower?
is there likely to be a time you’d like following consultation and is it something you want to fight for?

This

You would be better off on the legal board, or speaking to ACAS.

I get what you are saying OP, I would have thought it would be one piece of evidence that might help build a picture.

Is there not a risk here that you refuse the settlement, they do the redundancy process and DONT choose you.....so you're stuck working there and the only way out is to resign and then there is no pay out. Not a risk I'd want to take just to be a pain in the arse to be honest.

What? What have the police got to do with anything?

OP, no, you cannot later use a protected conversation as proof that the redundancy was a sham. You can't use it at all in any later proceedings. That's why employers use it.

My usual advice - ask for double what they are offering and take it from there.

The other thing to consider is the redundancy process will take time - time during which they would be paying you and you would be earning holiday leave etc. Any settlement at minimum would need to recompense you for pay lost by you not working during this period as well as redundancy pay

Okay, I am not an HR or legal person but I have been through this process in various forms as the person seeking a settlement, as someone managing someone out, and in many case, as the person watching my clients handle this.

It sounds to me like whether or not the role is redundant, you are absolutely right that they have decided that they want YOU gone. This is not uncommon in many organisations - they need to cut costs/teams by xx% and they'd much rather do that based on employees they want to keep vs some entirely objective process such as length of service etc. It's also entirely possible that they are using redundancy as an excuse to get rid of you - without having to go through a disciplinary process. In both of these scenarios, the settlement offer is designed to encourage you to take the money, save face etc. And you get MORE money than out of a straight forward redundancy process (with all the tax benefits that come with redundancy).

The reality is that if you fight them and bring legal cases etc to them, the ONLY thing you MIGHT get is more money. They are not going to go to jail, they're not going to get some huge reputational hit etc. Even if there is one person who is driving this, the company have already decided to support your removal, so any push back you bring is NOT going to make life harder for that person but rather, will make everyone agree that the decision to let you go was the better option.

So the BEST way to stick it to them, is to go back with a counter offer that is significantly higher than what they have offered you. I would seek legal advice and explain to your lawyer what you're refusing to do here - which is to explain why it is you think you've been targeted, and why you think it's unfair. Your lawyer can then advise you regarding the potential increase in offer and the language you should use when responding to the offer.

To give you a sense, in a situation like this in financial services in London, I think it would not be unusual to expect to see an offer that is the equivalent to at least 6 months pay, up to a full year, depending on the role and the pay.