been asked to suggest compromise agreement amount - hlp please

[lelole]

Hi,

 

I have been having health problems for the last 9 months, which has meant that since December I have had a long period of sickness, and then on my return my GP has been issuing "fit notes" which ask them to restrict my duties.

 

I have been unable to get a diagnosis yet.

 

A couple of months ago, my employer offered me 6 months salary to go, but I refused saying it was premature as it seemed to me I might have a diagnosis soon. This looks unlikely at the moment, as I am still wiating to see the consultant again.

 

I met for my appraisal today, and my manager broached the subject again, very nicely, but basically said that this can't be sustained much longer and we re- discussed this issue. I replied that I understand the point of view of the company, and that I hate to think I have been a burden, but that I wish to continue my employment. I said I would consider coming to some agreement, but felt that it shouldn't be of detriment to me.

 

She then asked me to go home and discuss with my husband what we would need and come back to them. What would be a reasonable amount to return with - I don't want to go too high an look greedy, but also want to go too low and miss out on valuable money as I don't know when I will be well enough to get a job again, and we may need every penny in the current climate.

 

Currently my job includes basic pay, company car, private medical insurance, bonus payments every 4 months (if meet targets but usually get something every time), and also laptop and mobile phone. I have been with them for 6 years and have never had any disciplinary issues, in fact my boss said she felt I was extremely good at my job, and she would hate to lose me but felt the business needed to be protected (I am in a sales role, and I am limited in how much I can bring in at the moment)

 

Could anyone advise me at all? My understanding is that it is usual to go to the solicitor once they have made a formal offer, so not sure if I can seek legal advice yet?

 

Thanks

[papasmurf1cx]

Their problem is that you are still working for them on restricted duty due to your illness. Your illness is likely to last more than 12 months so is basically covered by and you are protected by the terms of the Equality Act 2010 http://www.legislation.gov.uk/ukpga/2010/15/contents

 

If they dismiss you whilst you are still trying to get to the bottom of the illness and hopefully a cure or at stabilisation of the condition they would be discriminating against you and a Tribunal would award you substantial damages. There is no limit to the amount potentially that could be awarded in discrimination cases. They have, by the sounds of it from what you have written, made a reasonable adjustment to your working conditions by restricting your duties, so you are still working, albeit not as productively as before. It sounds that they don't want to lose you as you are an asset to them and they are not getting the best out of their investment in you.

 

Do you really want to go? What are the terms of the medical insurance? Is there any pension or ill health payments attached to it? Is your condition physical or mental? Have you not been diagnosed because the doctors won't or can't define what is wrong? You have to think about how to survive once you take a severage package from them, and that may have to include benefits from the DWP DLA etc. So it is a big decision to make.

 

What have they said to you if you don't go back to them with a figure? What type of money are you potentially missing out on?

 

Loads and loads of questions here and yet to ask but perhaps you could answer some.

 

Employers make 'commercial' decisions when dealing with disability and illness.... ie what is the cheaper option for them.... they are trying to tease you into asking for a sum of money ... which will invariably be the cheapest option. Personally speaking if it were me and you are happy with how things are at present, why not take the position that until you know what is wrong you just want to continue as you have. That way it forces them into doing the nasty thing.

 

I would ensure I have Legal Protection insurance cover in place for employment disputes and that discrimination issues to be covered....... just in case. !!!!!

[Sidewinder]

Whilst much of what Papasmurf says is absolutely correct, there has to be a warning that whether covered by the Equality Act or not, the employer could, providing that they do so carefully, start procedures to dismiss on grounds of capability. The EA is not an absolute protection from dismissal, particularly where the employer has made substantial efforts to accommodate the condition in the hope that the situation improves. Where your role exists to sell, and if this is being substantially impaired with no adequate alternative role being available, an Employment Tribunal may consider a dismissal on those grounds is justified.

 

I use words such as COULD or MAY, as it does seem that the employer genuinely wishes to retain you, but as you point out yourself, there is a need currently to make every penny count, and if your absence is reducing their ability to generate income, and is costing a substantial amount in salary and benefits which is not covered by other means, then there is nothing which says that they HAVE to keep you on. They do however have to act reasonably, and very carefully, so whilst I fully agree that you should indeed try to persuade them to hang on for now, I would also suggest that you discuss this further with your Doctor, and if necessary consult an employment lawyer for an opinion. The questions asked of you above are still relevant, and it would be impossible to direct you one way or the other without knowing all of the facts, but whilst it MAY be true that you COULD be dismissed and a Tribunal COULD award substantial damages, you might equally find the severance offer withdrawn and be out of work with very little compensation.

[lelole]

HI, Thanks for your detailed replies, I do appreciate you taking time to help.

 

In terms of my illness there are several things going on: Firstly I was diagnosed with Psoriatic Arthritis a couple of years ago, but have not had any lengthly time off work because of it. They did however agree to give me an automatic car, and lumbar support in my seat as I drive so much. The more recent (and relevant) problems are with my muscles. It began with a general feeling of being unwell, easy fatigueing, just not being right. However I do now have muscle weakness in my face tongue and swallowing, and also in my limbs. It seems to be quite variable but in general will worsen with repeated activity using that muscle and will worsen throughout the day. It can also affect my vision, but in a minor way. This has been cleared by the Ophthalmologist that I can drive (although the company nearl had a kitten when they realised, because of insurance and liability). It's hard to describe the effect on me as it varies so much, but some days I struggle to walk 200 yards without my legs failing ton work properly and feel on the verge of collapse, other times I am near normal as long as I limit my activity. It is difficult too,because emotional stress usually worsens the symptoms, either straight away or afterwards, and so presenting to groups pf people or meeting new customers can rapidly decline my day.

 

I have been seeing a neurologist and they thought I had the beginnings of a condition called myasthenia gravis, but the tests have come back negative. The treatment has been helpful, so that is still under question. However the last time I saw the neurologist, he wondered if it may have a mental cause - something called conversion disorder, where your body creates symptoms from stress (unbeknownst to you). My GP tells me that it is quite normal for neurological problems to take a while to be diagnosed, and that the consideration of a mental cause is a usual one. As an additional problem., the medicine I have been taking to prevent progression of the arthritis had to be stopped as they thought initially it was causing the weakness, and so the arthritis is *just* starting to rear it's head again, still minor but I have been here before and think it may begin to progress again.

 

My Gp has written a report for my employer saying that I am experiencing these symptoms, and that of the arthritis, and that I can still work, but that they need to take their lead from me as to what adjustments I need. They are still awaiting the report from the neurologist. I currently work 3 days per week, and my annual salary is about £20,000. I also have a company car, but pay my private fuel, and I have use of laptoo and private medical cover. The medical cover does not include any form of pension cover or anything.

 

I am able to work, and although I haven't hit all of my targets, neither have others in the company doing the same job, and actually I got very close to hitting a target which I have never hit before, so I am still of some use!!!

 

I have nearly run out of sick pay (we only get 4 weeks which I have taken, they have given me 2 weeks extra and I have 1 week left of that, so not long), and so I am carrying on regardless, but I am finding it more difficult. I am frightened that if my vision does deteriorate I may no longer be able to drive and then I could be got rid of, as it is such an integral part of my job, so wonder if I should take the offer and go while they still feel like they have to offer me some money, as I am tried of pushing myself through the bad days, and my whole life is suffering as a result. Alsop I do actually care about the company, they aren't a bad lot, and I would love for them to be able to have a full time person (which they do need I think) giving it their all, and really getting the sales going as I have a lack of continuity at the moment. I do need to protect myself as much as I can financially.

 

I have been looking into things and have seen a course I could do in hypnotherapy which interests me, so the time at home could be spent wisely, but of course i have no idea how that would pan out,and being self employed would be scary with my health problems.

 

I hope that is a good overview of the details,if I have missed anything let me know .

 

i have checked my contents insurance and legal cover is not included, so I assume that even if I upgrade now that it won't cover this issue as it is pre existing??

 

Thanks for any help! I plan to call my boss tomorrow, so hope to have a good idea of what to say by then!!!

 

Thanks

[papasmurf1cx]

Hi I am really sorry to hear about all your troubles, having had my own I do know what you are going through.

 

Regarding the insurance matter, there may be a lead in period to qualify and pre existing condition may also be a factor. However for £25 - £30 it may be worth having on the back burner, after all if they go the capability route your post above @ 4 shows quite clearly that you are still an integral part of the sales team especially as there must be documented targets being met / not met. (I would start copying any document that shows that you are still employable. So if the instigate this dismissal then that is not pre existing it is something that MAY happen to you which you don't want.... get it just to give you options.

 

Have you claimed DLA you probably have a good case to get it?

 

If you go the route to take the money, why don't you consult a solicitor and ask him to negotiate for you after all what you are talking about here is a settlement which anticipates the company perhaps discriminating and victimising you.

 

When you spek to your boss tell him how worried you are that teh comapny want to get rid of him after all then tell him how good and productive you still are. Follow it up with an email or letter summarising the meeting. It is always good to have written records... courts like certainty. Tell him how disappointed you are that it is heading in that direction and that you hope to continue.......... However you do see the company's point of view but don't feel able to negotiate away your career perhaps someone independent could do it so that an agreement could be made.

 

You have to get over that the company could be breaking the law, but that you are willing to be reasonable.... at a price. Injury to feelings payouts can be up to £30,000 (although I don't think you are in that category. Look here.. case of Vento http://www.bailii.org/ew/cases/EWCA/Civ/2002/1871.html

 

On top of that you have the loss of future earnings and benefits.... sometime large payouts happen but typically 2-3 years salary are paid out. So 6 months seem rather cheap to me... and you are negotiating from a very weak position.

 

Good luck

 

Keep us posted

[lelole]

Hi papasmurf,

 

Thanks for your reply.

 

Firstly what is DLA and why would I be allowed it?

 

Secondly, I think you have summarised exactly what my concerns are: I don't want a court case, but I equally don't want to end up out on my ear with nothing!

 

Do you think that it would be better to wait for a dismissal then? My instinct is not to do that - I don't think I want to handle the stress, and also if I have to go down the route of a tribunal type thing then the wait for money to live on could be long - and it sounds like it's not necessarily guaranteed. I did/do enjoy my job, but am beginning to consider that this health problem might be longer term, and that I will need to leave at some point anyway. I also do think that the signal from them is that they will start to initiate proceedings if I don't make an agreemewnt with them (though this wasn't said in any stronger terms than "this can't go on much longer, this area needs to be viable"). I know that they have a big project starting in the area in October, and I suspect that they wish to have somebody in place of me (or me fully back) before then.

 

I have said I will speak to my boss tomorrow about it, and had toyed with the idea of saying that I would consider stepping aside for a year's pay (inc a cash equivalent for the car), but that they need to now make a formal offer to me so I can take it and seek legal help. I do see what you are saying about getting them to get somebody independant to negotiate. Who did you have in mind - does this mean the solicitor?

 

When you say I am negotiating from a weak position do you mean because they have not yet done anything illegal, so I am negotiating with them about something they may intend to do?

 

I'm burbling! What I am trying to say as I think that I am going to be leaving no matter what, and if I am able to negotiate a payment which is not too much less than what I would get if I fought tooth and nail later down the line, then I would rather do that, the question is how to do I give myself the best shot of this?

 

edit: I am so sorry I forgot to say that I was sorry to hear you have had to go through this too, I hope all is resolved for you now??

 

Thanks,

 

Leah

Edited June 28, 2011 by lelole
forgot to add something

[lelole]

Hi,

 

Well as I said I would I spoke to my manager on Weds, and said along the lines of what you suggested papasmurf, and my manager went to great lengths to ensure that I understood that as far as the company is concerned that any talk of a 6 month offer was only a suggestion to "help me" as they felt I had run out of contractual sick pay and also the extra they had given, so they wanted to give me an option of something should I need it to recover - paid. They said that any offer they made was purely for my benefit, not at all obligatory, and the lead is with me. They did however say that these limitations to my work could not go on forever, which I responded to by explaining that my work is sitting about average in terms of Performance vs Target (compared to others in the company doing the same job) at the moment, and so I wanted to continue as I felt I was still doing the job justice despite a difficult situation.

 

In the end I did just decide to sit tight for the time being, as what I am saying is actually true - I am coping OK, and to make any other decision would be rash - I think I was believing we had entered into some kind of pay -off negotiation, and felt as if I had to take something or I would be pushed, and I really don't want any extra stress at the moment!

 

What does concern me is that in response to my concerns over their intentions, my manager said she would send me an email covering the main points of our meeting, based on her notes of the conversation, and the email came today, and to by shock it was a blow by blow account with things as I exactly said them (in quotations marks and all!). I don't remember her taking many notes, so it looks like my boss either has an extremely good memory or has recorded our meeting without my knowledge.

 

The email does reflect the conversation far better than I remembered it, albeit very strongly form the point of view of my manager.

 

Any advice much welcomed...

 

Thanks

 

Leah

[papasmurf1cx]

DLA is a DWP benefit. It is given to people that have disability. You need to have care needs and / or mobility problems. Your post above gave me the impression that you may be entitled to it. Have a look here http://www.direct.gov.uk/en/MoneyTaxAndBenefits/BenefitsTaxCreditsAndOtherSupport/Disabledpeople/DG_10011816

 

 

Now get the legal protection Insurance..... only £30 p/a worth having the resource to use if they try and dismiss you.

 

The ball is now in the employers court because you have stated quite clearly you want to stay. Personally I would also write to the employer and ask her if she did in fact record the conversation. The point being if she has done that without telling you she did it, next time you should also be in a position to record it. Subtle changes can be made with one letter or one word, which changes the whole context. if you think there is something in the notes you don't agree with, I would write immediately telling her exactly what you think and correct the mistake. Sooner rather than later.

 

You may find that 'things' start to happen around you be aware of them and ensure you keep notes, evidence , memos, performance tables ...... anything that aids you.

 

I think this is a waiting game now to see who blinks......... !!

[lelole]

Hi Papasmurf, and thank you for your continued help!

 

I'm not sure if I would be eligible for the DLA at the moment, according to the link you sent because this is very variable, and although sometimes I have trouble walking 200 yards it is few and far between. Most of the time I get on fine, just with a bit of difficulty, usually I can do most stuff though.

 

I have just re-read the email, and I intend to reply to it on Monday (with my partners help), but I have to say, it does represent to me a slight sea change - the fact it has been written down, and the fact that some of the nice innocent conversation we had (in my mind) being written in a way which I think looks bad on me.

 

For instance we looked at the numbers and types of customers we see, and she showed me that the people with the highest numbers of sales had a certain pattern of customer visits which the rest of us did not necessarily have, and of course as was her intention, that led me to say that yes, she was correct it seemed reasonable to assume that the higher number of visits to a particular customer type seemed to achieve higher sales. This was said in the meeting and we were looking at how to improve for all of us and why the company strategy had changed in this cycle, but was used in a way to suggest I agreed that seeing less people would impact on my results.

 

Also, there is a statement that when we stopped talking about my health and it was time to go back to my appraisal that I said I did not want to continue. Actually in reality I had got upset (in other words burst into tears) about the conversation, and then she asked me really nicely, "so you really want to continue with this", and I said I am not sure if I feel up to it (mainly because I was so upset and felt like I was going to have to make a decision to leave or be pushed).

 

So it does look like exactly what you say - small words here and there things taken out of context and suddenly I don't look so good, and them looking perfectly reasonable!

 

I am going to ask if it was recorded, but want to ask how best to phrase it? Clearly if they admit it was recorded and we reach any sort of tribunal, the recording can be listened to or transcribed, but my concern is that the email is factually (to my memory) incorrect in places. If there is no recording or it is not admitted to, and I ask if it has been recorded, could it be seen as an admission that the email is completely accurate. If you know what I mean?

 

Thanks

[papasmurf1cx]

What I would say to the recording bit, even if it is denied, which it will be, you have put on notice the fact that you suspect it and that by challenging the account you implicitly don't trust management..

 

Now, your illness must affect your concentration and memory (because you do not accept what she has said!!) so I am sure that will cause worry, stress and anxiety when dealing with management.... so ask for a reasonable adjustment to their procedure every time you are called in for a meeting. The reasonable adjustment would be to allow you to record the conversation, so to assist your memory and ability to recall what was said. If she refuses, you have at least one act of discrimination (apart from the others of course) and I would raise a grievance about the refusal. Discrimination for employers is a tricky business and if you know what you are about they will dread dealing with you. Quietly resisting when you have knowledge of the law is powerful stuff, as other Caggers on here will tell you.

 

Got that legal protection cover yet???

[lelole]

Hi Papasmurf

 

Well I tried to get the legal cover today and they said that I could upgrade for £10 but that there is a 90 day qualification period, so if anything happens in the next few months I am not covered. The guy said that even if I got dismissed in the next month or something, but decide to take legal action after the 90 day I am still not covered.

 

I am still not sure I have the fight in me for this, I am not by nature a confrontational person, and so feel worried about asking for the recording. I feel that my employer would agree to it anyway, and that it would then a) make me seem more difficult and b) mean that I would be so worried about what I say - I get so flustered and am not used to this kind of thing, I can imagine me saying things I shouldn't or getting muddled up and causing myself an issue.

 

In the email they stated ' it is important for you to understand that we (the company) can't sustain this indefinitely. This does not mean the company want you to leave, but we will need to consider together what options are available for both you and the company to best manage this situation, once we have the report from the consultant."

 

Should I therefore make reference to this in my email reply, and ask outright how long I have before they feel they would like to get rid of me (phrased differently of course, but too tired to think now!). The report from the consultant should be in in the next couple of weeks as it has apparently already been dictated, I am just waiting for it to be written and emailed to me for checking.

 

I don't want to be greedy about this, as I don't feel it is the company's fault that I am ill, and am having trouble doing my job, but equally I do want to have some kind of cushion if I move aside for them.

 

Thanks again for your help,

[papasmurf1cx]

3 month will go quickly, at least you have it in place now and have an option sometime in the future.

 

As for fight.......... If I came into your house and said to you that all your jewellry does not belong to you and that it was intolerable for you to continue in the situation that you had possession of it and told you to put it in a plastic bag so I caould take it from you.... what would say????

 

Exactly !!! Can't you see that is what they are doing to you? These managers MANIPULATE people like you. They have NO RESPECT for weakness be it physical or mental.

 

You really have to decide what type of person you are. Having been through a fight with insurance companies, employers and a union and won each and every battle I can assure you unless you stand up to them they WILL trample all over you.

 

CAG and the Cagger's can't do it for you, but we can talk you through the moves, advise and strategize with you. The final decision is always yours and we just move on with the next person and their case!!

 

It is a cathartic experience, you may come out stronger.

[Atlas01]

I might as well just quote what sidewinder said

 

Your getting awfully close to enough time off to be dismissed without a penny if any other suitable employment isn't readily available, disabled or not.

 

You know your condition, if you are not going to be 100% better within the next 3-6mths i'd seriously consider the cash and a future reference stating you took severance instead of dismissed on medical grounds

[postggj]

the problem we have on this is you state that you have had the condition for 9 months

 

after 12 months you get the protection covered under the old dda, now equalities act

your employer will know that and as such will be unable to touch you without severe consequence

 

in your shoes

 

I WOULD TAKE THE SIX MONTHS WAGES

 

BUT THAts just me

 

you need to make up your mind on whats best for you

 

16 weeks wages is the norm on medical grounds so six months is very generous

[papasmurf1cx]

the problem we have on this is you state that you have had the condition for 9 months

 

after 12 months you get the protection covered under the old dda, now equalities act

your employer will know that and as such will be unable to touch you without severe consequence

 

in your shoes

 

I WOULD TAKE THE SIX MONTHS WAGES

 

BUT THAts just me

 

you need to make up your mind on whats best for you

 

16 weeks wages is the norm on medical grounds so six months is very generous

 

THat is not quite right.

 

12 months kicks in when a condition that affects activities of daily living applies. Equally if a condition is known prior to 12 months and the likely is that it will last more than 12 months then the Act (and old Act) provides that protection. As an example if you have an accident and 24 hours after the accident you have an amputation of you leg that stops you walking the Act would apply immediately as it would be ludicrous to suggest that it doesn't.

 

Lelole has indicated that the condition is or was originally diagnosed as Psoriatic Arthritis. In any event whatever the diagnosis her symptoms indicate a likelihood of her condition lasting more than 12 months, so she probably is covered. Obviously this would be subject to a medico/legal opinion.

 

There is a third possibility of a condition that is intermittent that affects you one day but not another, but is known to last a lifetime eg MS One may have good days and bad days and the nature of the condition as a progressive illness would afford the protection of the Act too.

 

12 months is a general guideline.

[postggj]

yep

 

i concur

[lelole]

Hi all thank you so much for your help, I did not realise I had more replies so sorry I haven't replied sooner. It is interesting that some of you say that I should take the money and go, because I am wondering the same thing too! There have been a couple of events since I last posted:

 

1. They recieved the medical report and asked me to change my working hours, they wanted me to work more days with less hours each day. I felt that this would be a problem from two points of view - it would increase the amount of driving in the job proportionally, and it would also take away one of my recuperation days.

2. As a result I was asked to attend a meeting with my boss and one of the directors as they happened to be in the area. I was told it would be an informal chat so the director could hear first hand what my symptoms were etc. but actually I felt like it was formal, especially as my manager was sat back taking notes the entire time.

3. In the meantime I have had a referral to a specialist centre, the specialist now thinks it may be related to a symptom I started experiencing in 2009, and that if it is, I would need to be seen by this specialist centre as that is where they do all the testing. This appointment is likely to be in about a month (due to company private medical insurance so that could be a problem too!)

 

 

During this meeting, we did not discuss the offer of money, although that had previously been mentioned by my manager during the working hours discussion. I felt like they were probing to see what I thought as they asked a lot about whether I was working because I enjoy my job, or whether it was just to pay the bills, and they also were trying to get me to speculate on the nature of the problem and the treatments. I get the impression that they don't want to bring the offer again, but I am not sure why - have they changed their minds? Or are they worried they will seem like they are putting pressure on me. The first formal meeting I had after being offered the money, I asked them about it - what does it involve, and said that I felt I was being asked to step aside, and that I did not wish to be obstructive, but that it would have to be good offer for me to do so (ie a very clumsy attempt on my part to negotiate). They asked me to go away and consider what I would be happy with instead. I then went away and got a bit panicked and went back and said how could I put a price on my career, what was the likelihood if I did not take the money. They came back with a very defensive email giving a blow by blow account of the meeting where it was discussed and stating very clearly that I brought it up. I replied to this explaining that I was trying to explore my options as I had felt I was being pushed. Looking back I think I made a bit of a mess of this, and that I maybe I should have just negotiated,

 

I would like now to explore with them what the offer is exactly - for instance, if it were 6 months basic pay, and the 6 months including my notice period, then it would be a very different proposition to 6 months pay in addition to my notice period with all benefits included.

 

I wanted to ask yesterday, but felt too intimidated by the fact they were taking notes, and I wasn't sure if I asked and then decided it was not of interest it would have an negative impact (I'm not sure what I am scared of, maybe them just sacking me or something, or manipulating me in some way).

 

If I was able to get a good offer from them, which was able to see me through then I would definitely consider it, but don't know how best to make that happen - I would really appreciate any further help...

 

I should add for extra info that I have had only 5 weeks sick time this year due to these problems and the majority of this was one period at the beginning of the year.

 

Thanks

Edited August 4, 2011 by lelole

[lelole]

HI, any advice on this would be great as I am drafting a response and could do with knowing what 's best to do.

 

Also could someone tell me if they have been reasonable about this meeting? I was informed the day before by my manager that she wanted me to attend an informal meeting with herself and a company director to discuss the impact on my health. When I arrived at the hotel coffee area, she then told me briefly that the director wanted to understand my work issues, and then sat back and took notes, not interacting even when I tried to get her involved by asking questions. I was basically grilled about the in's and out's of my undiagnosed condition and asked to speculate on possible treatments and their impact on my health, in this very public place. They then brought out figures which they had pre prepared and I was asked to comment on them with no preparation. It really put me on the back foot even though I had not done anything wrong.

 

I feel they lied about the formal nature of the meeting, in an attempt to intimidate me, but I don't know how the law would see it, and how I should respond? I have drafted a letter back which says that I am unhappy that this supposedly informal meeting was so formalised and intimidating, and that I would like to have the ability to record the conversation should a non independant thrid party be taking notes, also that I should be given time to prepare for a meeting where specific oerformnce issues are being discussed...

 

Am I right??

 

Thanks