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Tribunals

Tribunal tales #7 – settlement strategy: creating an interesting offer

Posted on: July 7th, 2021 by Ginny Hallam

Whilst the termination payment is usually the main focus, there are lots of ways to make a settlement offer more attractive without incurring much, if any, additional cost. Below is some food for thought: 

Continue employee benefits – if you’ve already paid the annual premium for benefits (such as private medical or life assurance), allow access to those benefits for an agreed period after the employee has left (subject to insurer approval).

Outplacement and coaching support – a positive step to support employees in securing a new and exciting challenge. You can set a capped contribution (so it won’t break the bank) which can be offered tax efficiently. As members of the The AdviserPlus Group we’re able to provide this support – click here to find out more.

References and announcements – agreeing a factual reference and internal/external announcements means you’re able to work together with the employee controlling the messaging around their exit and supporting them with their hunt for the next role.

Fast payment – promising speedy settlement payments means the employee feels they’re in touching distance of the financial support – costing you nothing and often enough to secure the deal.

Get in touch if you’d like to discuss a tricky exit or your template settlement agreement. In our next update we’ll focus on limitations to confidentiality clauses and your options to capture the agreement terms. 

 

This update is accurate on the date it was sent (7 July 2021), but may be subject to change which may or may not be notified to you. This update is not to be taken as advice and you should seek advice if anything contained within affects you or your business.

Tribunal tales #6 – settlement and protecting negotiations

Posted on: June 21st, 2021 by Ginny Hallam

Not all settlement negotiations result in a deal. So, protecting any offers you make is crucial to ensure they can’t be used against you in future litigation.

‘Without prejudice’ and ‘protected conversations’ can be used to protect exit negotiations but are often confused leaving you unknowingly exposed. Both have their uses! Here’s what you need to know:

Protected conversations 

A relatively new concept, they allow for discussions about exit without exposing you to claims for unfair dismissal (unless there are allegations of ‘improper behaviour’ against you such as putting undue pressure on the employee). They DON’T protect against other claims, including discrimination or whistleblowing.

Without prejudice 

Only available for existing disputes (where the employee has raised a grievance, for example). Assuming there is a dispute, ‘without prejudice’ conversations protect against all claims, including discrimination and whistleblowing.

Get in touch if you need to discuss your options with how best to approach settlement conversations. In our next update we’ll look at the non-financial elements of a settlement offer. 

 

This update is accurate on the date it was sent (22 June 2021), but may be subject to change which may or may not be notified to you. This update is not to be taken as advice and you should seek advice if anything contained within affects you or your business.

Tribunal tales #5 – settlement and timing it right

Posted on: June 8th, 2021 by Ginny Hallam

Securing an early deal can protect reputation, avoid unnecessary legal fees and save time. But, ill-timed settlement negotiations can mean overpayment, increased tribunal risks and a worsened negotiating position. Here are our thoughts on getting the timing right in respect of negotiations:

Before delivering an outcome – if you know successful litigation is possible, consider opening a settlement discussion before progressing or finalising a formal process. Employees may be incentivised to take a deal to avoid a possible dismissal.

Sit and wait – when bringing an unfair dismissal claim, employees are obligated to try and mitigate their losses by securing a new job (see our previous update). If the ex-employee secures a job it’ll reduce your exposure to compensation and, in turn, improve your negotiating position. Top tip – write to the employee early on to remind them of their obligation to mitigate! Find out how to access our mitigation letter template.

Call their bluff  – lots of employees threaten litigation but don’t follow through. Before an employee can issue a claim they have to go through mandatory ACAS early conciliation. ACAS should contact you to let you know the conciliation process has started. If you don’t hear from ACAS, it usually means the employee has decided not to litigate and there’s no need to put forward an offer.

In the following update, we’ll look at how to approach settlement discussions, limitations to confidentiality clauses, and ways to make a settlement offer more attractive.

 

This update is accurate on the date it was sent (9 June 2021), but may be subject to change which may or may not be notified to you. This update is not to be taken as advice and you should seek advice if anything contained within affects you or your business.

Tribunal tales #4 – the importance of evidence

Posted on: May 28th, 2021 by Ginny Hallam

Evidence is the key to a successful tribunal defence. A tribunal defence reliant on individuals’ memories is uncertain and unpredictable. Written evidence avoids reliance on personal accounts and means greater clarity.

Here are a few ideas on putting your best foot forward:

Informal conversations – take notes wherever possible and follow up with an email of what was discussed and agreed actions to avoid allegations that something was said or discussed which could damage your defence.

Records – you’ll have more than just conversations to record. Ensure that evidence of poor performance, sickness absence or whatever the issue, is captured.

Formalities – have a note-taker present whenever possible during formal meetings. Documented meetings, follow-ups, and agreed actions ensure you can evidence a fair process and have the proof to back it up.

Reasons – when making a decision impacting someone’s employment, always make a record of your reasons and justifications for why that decision was made. You’ll find it much easier to argue that the decision was fair and not based on any discriminatory reasons.

Keep it safe – ensure that you have a system to store information safely and accurately once it’s been recorded. Click here to find out more about our solution.

Securing great advice at the outset of any possible issue will ensure your processes and evidence trail are robust and effective. Get in touch to find out how we can help.

 

This update is accurate on the date it was sent (28 May 2021), but may be subject to change which may, or may not be notified to you. This update is not to be taken as advice and you should seek advice if anything contained within affects you or your business.

Tribunal tales #3 – put your best foot forward

Posted on: May 20th, 2021 by Ginny Hallam

Being landed with a tribunal claim can often knock you sideways. Below are our thoughts on how to put your best foot forward and proactively reduce exposure if a claim is made against you:

Early advice – securing great advice early on will help identify strengths and weaknesses in your case and support you to plan accordingly. If your defence has any weaknesses, it’s better to know early and explore settlement to avoid unnecessary costs.

Timing – it can be complex to work out if a claim has been brought against you in time – if it hasn’t, the claim could be struck out. If you miss this argument in your defence you’ll not be able to argue the point later so ensure you secure advice when drafting your defence.

Mitigate loss – if the claimant hasn’t found a new job, start proactively keeping a list of all suitable vacancies in their area. If the claimant doesn’t attempt to mitigate their loss by finding a new job, this may damage their case and reduce compensation.

Settlement – consider whether you’re willing to settle, or if you’re determined to go to trial. Decisions about whether to settle are often made late in the process, incurring costs that could have been avoided. We’ll discuss settlement strategy in more detail later in the series.

Straight-talking advice at the start of any people challenge or process can help to minimise issues arising further down the line and reduce potential litigation risk. Find out more about how we can help you to achieve more commercial and practical people solutions.

 

This update is accurate on the date it was sent (20 May 2021), but may be subject to change which may or may not be notified to you. This update is not to be taken as advice and you should seek advice if anything contained within affects you or your business.