Employer offering redundancy as compromise agreement alternative - help!

[Jmebebe]

Hi There,

 

I'm seeking some advice on an issue I'm having with my employer.

 

I have been off sick with anxiety and depression since march - in this time I was also made homeless which my employer was aware of. Occupational Health services advised my employer at the end of June that as long as they created a supported return to work and followed their recommendations I would be ready for a phased return to work by the end of July.

 

The subsequent meetings with my direct line manager was a conversation about why he feels I'm not ready to return back to work, some of the reasons being that 1) Conflict might cause me to breakdown 2) Not enough has changed in my personal life to support my return back to work 3) My reasons to return to work cannot be financial (specifically in regards to me being homeless).

 

My line manager has also shared my fit note with one of my colleagues who has then asked another employee what the address on my fit note was to me (basically trying to see if I was lying about being homeless).

 

I have since raised a grievance and advised there have been serious breach of my mutual trust and confidence with the employer and as such it would be impossible for me to return to work. I have advised I am seeking to resolve this with a compromise agreement which I feel would be fair at a 12 month settlement.

 

Unsurprisingly - my boss's line manager has come back and said that this is unrealistic. She has advised me that if I didn't want to come back to work (not that they have offered for me to come back) that they would be looking to offer me redundancy and the legal minimum - she has advised at a stretch they might extend this to 3 months.

 

During the grievance process - I have not been asked at any investigation meetings to define my grievance. I also feel they are going to try and say I have created a "consipracy" with other members of staff in regards to the breach of my data protection rights.

 

Does anybody have any advice at all? I don't believe they can offer my redundancy instead of a CA? Especially since my role is not redundant - they have someone covering me as a secondment at the moment. I also have had no disciplinary issues and have always been high achieving - is 12 months salary unreasonable?

 

Thank you for help here

[tezza1234]

I think 12 months is unreasonable yes, how long have you been there please. What are the causes of your anxiety and depression. Your work are already loosing out here, continuing to pay you (full pay i assume) whilst also employing a extra pair of hands to cover you, why do you think they will cough up 12 month salary.

[Emmzzi]

seriously, one slip up on showing a sick note to someone does not constitute irretreivable breakdown and allow you to claim constuctive dismissal. Nowhere near serious enough.

 

if the doctor/ OH says you are fit to go back it doesn't matter what your boss says, the end of July has passed, it's phased return time.

 

Get yourself back in.

[Jmebebe]

Hi There,

 

I've been there for 3 years - it isn't just one slip up, and sharing information from a fit note is a serious breach of the data protection act.

 

I haven't been receiving full pay for several months - causes of my anxiety and depression are work related. I can't go back if there is no role for me to go to because they haven't made the steps to allow that to happen.

 

I haven't listed everything (it would take up too much time) and really my question was around them wanting to offer me redundancy (and the bare minimum) instead of a compromise agreement. Can they do this if my job isn't being made redundant?

[tezza1234]

Hi There,

 

I've been there for 3 years - it isn't just one slip up, and sharing information from a fit note is a serious breach of the data protection act.

 

I haven't been receiving full pay for several months - causes of my anxiety and depression are work related. I can't go back if there is no role for me to go to because they haven't made the steps to allow that to happen.

 

I haven't listed everything (it would take up too much time) and really my question was around them wanting to offer me redundancy (and the bare minimum) instead of a compromise agreement. Can they do this if my job isn't being made redundant?

 

Of course they can, it goes on all the time, They will make redundant your job (by title) and create a new post and call it something different but the job will be 99.9% the same as old (now redundant) post

[Emmzzi]

I've been there for 3 years - it isn't just one slip up, and sharing information from a fit note is a serious breach of the data protection act.

 

I haven't listed everything (it would take up too much time) and really my question was around them wanting to offer me redundancy (and the bare minimum) instead of a compromise agreement. Can they do this if my job isn't being made redundant?

 

Well, I can't advise on what you are going to make me guess might have happened.

 

Can they invent a redundancy legally? No, not really, but if they are smart they'll find a way to do it.

 

If you are not on a fit note any more, and OH have advised you to go back, rock up at the office on Monday ready to start on the return plan they have reccomended. That is my very best advice; otherwise you have gone AWOL, which is a disciplianry matter, and then you'll be out with no cash at all.

[SweetLorraine]

Hi Jmebebe,

 

You can always seek pro bono advice at a law centre, ACAS or your local Citizens Advice Bureau.

 

Just a few thoughts....

 

The perceived breach of the DPA may not be as serious as you would like to believe - and you would have to prove such a breach actually occured. You may believe it is worth a year's salary - many others may disagree.

 

If you have only worked there for three years - so (dependant on your age) you may only be entitled to three weeks statutory redundancy pay - which is a lot less than the (at a pinch) three months pay your employers were thinking of offering.

 

Your role is currently been covered by a secondment - presumably then when you return this secondment will come to an end. So you can't really say there isn't a role for you to go back to?

 

The best advice could appear to be to get back to work.

 

Another good piece of advice I seen very recently on another thread was that an employee may feel that a wrong has been done onto them, but that doesn't mean there is a legal solution to that wrong (at an Employment Tribunal). And if you were to go to Tribunal there are now fees to pay to lodge a claim.

 

If you have had a lot of run-ins with mangement, and this history of turmoil is affecting your health, consider your future and what might be best for you.

 

I know from personal experience that it can be very difficult to objectively step back and think about all your options - particularly once you have locked horns with your employer. But it is something your should do.

 

Stepping away from it all might be a healthy option? You may have made that choice already? Maybe both you and your employer are really just negotiating how much any exit strategy might cost them - you say 12 months - they say 3 months. Maybe you can come down a bit and they can come up a bit?

[steampowered]

I agree with the above. While there has no doubt been a breach of the DPA, a one-off breach is not serious enough to constitute a constructive dismissal. For constructive dismissal you basically need to show that the employer has seriously breached the employment contract such that it is impossible for you to go back to work. This is a very strict test and it does not sound like you meet it.

 

As the fit note says you are able to return to work, not returning to work would probably be seen as a resignation. When you resign the employer does not have to offer you anything at all.

 

The employer might be willing to offer you some sort of compromise agreement. But I think 12 months is unrealistic. Most unfair dismissal cases get nowhere near this figure. I actually think 3 months would probably be generous in the circumstances. You can see what you would be entitled to on a redundancy at the calculator here: https://www.gov.uk/calculate-your-redundancy-pay.

 

Sincerely hope you manage to get your financial problems sorted out. Perhaps agreeing a phased return to work, with the employer providing you with extra support, would be a good way forward?