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?

Hi OP

If you want to do your own research, a good place to start would be here:

https://www.gov.uk/employment-tribunal-decisions

Do a keyword search on redundancy and browse some cases.

https://assets.publishing.service.gov.uk/media/629f5fe9d3bf7f03667c65d4/Mr_M_Birkett_-V-Interal_Uk_Ltd__1404745.2020-__Judgment_with_Reasons.pdf

Here is an example.

If you could find one that more or less matches your circumstances that the employee won, come back and post the link and how you think it compares to your situation, then people would probably be able to comment further.

You shouldn't take legal advice from people on the internet. However, it threads like these, if there is a 'grey area' you would probably have seen it teased out in the replies by now. The fact that no-one thinks you have a good case should be something you keep in mind.

On the very basis of this thread alone, I’m not the least bit surprised you find yourself in this position op and know full well that they “want you out”

This is confusing. Are ACAS advisors ever wrong? One has just advised me that being invited to a settlement discussion before the redundancy process was fully explored could be evidence they had already decided the outcome, so what I thought?

Agatha I had tried to look at cases but I'm imagining if there was a case like this the offer would have been increased so it wouldn't have reached tribunal stage anyway?

Can see I'm going to have to get proper employment law advice, not what I wanted at this stage as like I say I don't really want to get drawn into other things as but I'll remember to just stick to my main query.

Thanks again all!!

Also, I would add, you ay that based on performance you are concident you would be the lat to be made redundant. Nicely, that's very unlikely to be true. Unfortunately, I have seen many many people who genuinely believe they are doing more/better etc and who therefore push back really hard when their managers raise issues with them. But the proof is in the pudding as they say, and inevitably, the very fact that these employees THINK they're better than everyone else is part of the problem - they don't have the skills to assess the value of what they're doing vs others in the team.

An example I am witnessing with a client right now is a team member who has decided that certain tasks are tasks she is no longer willing or able to do. Her view is that she is prioritising other tasks, and those are more important. However, her manager does not agree, and neither does the business. The tasks she is doing, she is genuinely doing well. But those tasks are the ones that, actually, if there is less time/resource, are the ones that the business would choose to abandon. As a result, her manager is looking at beginning a process to get rid of her and is currently agonising over whether to go the settlement route for a quick and easy, albeit expensive, solution, or to go via the disciplinary route which can be tedious and acrimonious. She is, apparently, telling everyone about how she is being discriminated against, her boss has it in for her, HR are not being supportive, she's doing an amazing job with these particular tasks and her internal clients on these tasks are really happy. But it won't do her any good. She'll be gone by Christmas.

ACAS advisors are much less likely to be wrong than random unqualified posters on here

ACAS are often wrong, yes. The people on the phone lines are basically a call centre which is full of people working from scripts, in the main not legally qualified at all. It is hit and miss as to how competant they may be. These are not the skilled and qualifies ACAS operators that deal with negotiations etc.

I'm under no illusion at all they want me out, and why and it's no surprise to me either. Guess I just hoped me not actually causing any hassle at all would have meant I'd be ok 😔

Sure, but you still haven't said what you want as a result? Because yes, the settlement absolutely suggests they've made the decision. Which is why they're offering you more money. And why you can push back and ask for even more money.

I don't really understand why you are struggling with this concept. Unless the goal is to keep your job - but trust me, that's not going to happen. At best, you're going to get a better settlement, at a much later date.

I would look at your house insurance to see if you have the free legal cover which covers employment issues (exdh used this when negotiating a settlement from his employer)

If a company want you gone then gone you will be.

If you really want to be a thorn in their side then hit them where it hurts and get a solicitor to put your case for as much money from them as you can and get an agreed reference etc

Court cases drag on and the company will just waste more of your time than theirs. The people who work there don’t care what you do because they are still going to be paid each month whilst you won’t be able to work and they could tie you up in red tape for year, by which time you will end up looking like a trouble maker with a gap in your employment history.

was It presented to you as a without prejudice conversation? Then no you cannot use it as “evidence”.

how do you know no one else has been offered one? This information should be kept confidential.

make it difficult if you want but be too difficult and they will withdraw the offer.

I've said a few times what I want, but my query was just about one thing where the answer doesn't really have any relevance to what I want.

What exactly did they say? Yes, of course it’s evidence they want you gone, that much is clear. But it’s really not evidence that you can use at employment tribunal or that will get you anything. What exactly are you expecting to get out of proving this is a “sham” redundancy? No-one is going to give you your job back, they are not going to take some big reputational hit or have some sort of epiphany and realise how wrong they are, and you have said you don’t care about the money?

I defend employers at tribunal. I can 100% assure you that you would not "enjoy" it. It's incredibly stressful, very long winded (I've got a hearing in Feb for a guy who left Sept 23, and that's quite a quick one) and extremely procedural. If you trip over the procedures it can change the outcome completely.

I am "qualified" (30 years in HR, CIPD, first class law degree) and I'm here to tell you that being invited to look at a settlement and have a protected conversation about that would not be admissible in court. I've done hundreds of settlements.

It's also not evidence of an unfair procedure because it's not part of the procedure.
There's a ton of case law on this. Any legal firm's website has a section on without prejudice conversations which tells you they cannot be referred to in later, associated, legal proceedings. This is the whole point of the conversation.

Ref whistle blowing - you cannot "whistle blow" about an unfair redundancy procedure. Well, you could, but it would not count as a protected disclosure. It doesn't matter anyway though - the only thing you get by whistle blowing is protection from detriment. As the detriment (such as it is) has already commenced, it cannot be a result of any future whistle blowing, can it? Whistle blowing is not some kind of catch all get out of jail free card.

And I can't work out where the police would come into it. Workplace matters are civil disputes, not criminal, so the police would have zero interest.

Oh, and don't try threatening to blow the whistle unless they keep you employed - that's blackmail and that IS a criminal offence.

Remember ‘HR’ represent employers’ interests and any HR advice will come from that perspective.

I know I can speak to a solicitor, was just hoping there would be some HR people on here that might know

There are HR people on here who are advising you, but you are choosing to ignore them because they aren’t telling you what you want to hear.

If you think people would advise you to go to the police if they knew the background, then why don’t you just go to the police? If you have evidence of some illegality, then that is how you make life difficult for them, not by barking up this tree and ignoring everyone’s advice.

@Chillymoanday during consultancy anyone ‘at risk’ may find their role is designated as to be kept or to be made redundant. Redundant roles are offered a settlement and usually an allowance to put that before a law professional to see if it is ok. That’s kind of how it works. If they have since decided no other role is to be made redundant the others won’t be offered a settlement. If you can find another role you're qualified for in the organisation you normally get priority to be interviewed but they don’t have to offer you the job. It’s on you to find a suitable role. It might just be that they haven’t been through all the roles at risk. Either way it seems fairly standard so far. Even if it is not, I doubt you are going to be able to prove it but what you can do as others say is push for a higher settlement. No guarantees though 🤷🏻‍♀️

So what you want is to not give them an "easy ride" because I've reread all your posts, and that is all I can see. But you don't say what that looks like and you're dreadfully naive if you think that bringing some kind of legal process would stress them out particularly unless it's a tiny little organisation with very limited resources.

So, as many have said, the way to make sure they don't just get away with it, is to ensure you get as much money as possible during the settlment procses. THAT is the only way you can hit them where it hurts. But have to tall you, they've probably already factored that in and written off the cost - getting rid of you at this point is probablby worth a great deal to them.

She said earlier in the thread that she didn’t want to get into details about what’s going on because the advice would be all about going to the police. From that I surmise that she has evidence of criminal wrongdoing, not that there is any suggestion that potential unfair dismissal could ever be a police matter.

I agree they are often wrong. And sometimes very unhelpful. But I suspect most of that is a result of how questions are asked and facts are given to them.

Often when I've worked with Acas negotiators the story from the other side bears only a passing resemblance to reality. They are used to that though.

I haven't threatened whistleblowing?

There is a police matter involved but I don't want to go to them. So I haven't and I won't.

What acas said is further up but was along the lines of what I was thinking - one person offered a settlement, during a redundancy process,l that has begun, in a pool of 5 and that person is then selected is suspicious of a predetermined redundancy outcome.

I'm going to get further advice though, not to rubbish ACAS advice but so many in here saying the opposite so I'll double check.

I've read all her posts. I didn't surmise that. I surmised that she doesn't understand the process and thinks she can report the process to the police because she only mentioned this after another poster told her to sign the agreement then report it to the police. (Eye roll)

If the employer is acting illegally in a criminal manner why would anyone ever not want to report that? Why would anyone want to work for them?

I'm aware of that so I was very neutral and just gave the facts. I didn't ask any q's just said about 2 sentences outlining what happened.

This. It will be stressful and personal for you and you are unlikely to win in the end however just your position is.
I tried to fight redundancy with a good case a few years ago. The employment lawyer took my money but I didn’t win. Very stressful and not worth it.

Why not negotiate on the settlement to get a higher payment?

I think you need to think of how you would make it harder for them (by refusing, and going for unfair redundancy), your likelihood of winning (very low - as previously said, you can usually make the figures support whomever you want them to) and how much it could hurt your future employability to challenge it. I'm presuming that you don't want to stay in the role, in which case, I'd either take the settlement or negotiate for a better one, BUT still deal with whatever reason they want you out, but do so separately. I'm assuming you've either turned down someone higher up who made a pass at you, upset a line manager in some way (by calling out bad behaviour / showing up their incompetence) but realistically, dragging it out in an unfair dismissal tribunal will be made to look like sour grapes for them getting rid of you, regardless of the truth. In most industries, this will get you 'blacklisted'. It's terrible, and it happens all too often, but sadly, unlike in the films, the 'winner' is pretty much always the firm.