We have an employee who has been with the Company for eight years. I’ve only been with the Company three months and in that time his Director has been chomping at the bit to ‘get rid’ of him. His last appraisal form details all he has been doing wrong and they have tried speaking to him informally about improving his performance.
Last week I was discussing the issue with the Director who wanted to start the disciplinary process; I advised this would be done but could take a little while as we would formally need to do it properly.
I then offered the Director a potential solution whereby he could talk to this employee informally, offering him the opportunity to leave the company on full notice pay of 8 weeks, rather than going through the performance management process. I gave this option because of the amount of discussions that had already taken place about his performance, as a ‘nicer’ route for him to consider rather than having to go through a disciplinary process, with an uncertain outcome for him.
The Director had the discussion with the employee, who has since refused to come to work, e-mailed to say he is hurt and upset, that he hadn’t known his performance was so bad (even though this is documented) and is ‘considering next steps’. Since then, I called our employment law helpline and they said this had been completely the wrong approach, and he could now have a huge and automatically winnable case against us.
Peter replies
There is some risk of a successful constructive dismissal claim, especially if your Director mishandled the discussion. I would maintain however that what the Director has done is to commence Pre-term Negotiations (aka Protected Conversations) which cannot be used in evidence at Tribunal, providing he has done it properly. Doing it properly in this context means:
• giving the employee time to consider (ten days)
• a choice to either accept or go through the disciplinary/capability procedure.
I don’t have the full picture, but your current advisors may be being over-cautious.
What you need to do as a matter of urgency is to:
• put your offer in writing on a ‘without prejudice’ basis
• ideally draft a settlement agreement to go with it.
You will need to be more generous than 8 weeks, as he would get that much even if he goes through your procedure, which will take months. You also need to give him 10 days to think about it (ACAS Guidance). If you handle this properly from now on the situation should be retrievable, in that he should leave with a settlement and cease to be a problem. Should he choose not to do so, then you will need to use your procedure to either manage improvement or to fairly dismiss him.
It is actually very hard for employees to win a constructive dismissal claim. If he decides to leave and claims constructive dismissal, but you have taken the prompt action I have suggested, the Tribunal may, of course, refuse to consider your perfectly lawful attempt to deal with a difficult situation, but prior to that you will have an attempt to reach a realistic financial settlement to stop it from going that far. Even if matters did go to Tribunal and they do conclude that your actions were not really an attempt to resolve matters properly, they may well decide that it would have happened anyway and award little in compensation. We would also recommend that you ask your current HR advisors why they did not provide the advice we have just done, rather than just warn of the risks.
BackupHR are very familiar with not only advising on and drafting settlement agreements and the accompanying correspondence, but also facilitating the whole process; from attending the initial meeting through to finalising the agreement with the employee’s solicitor, to ensure it remains legally safe. Feel free to contact us to discuss how we can assist.
The guidance provided in this article is not legal advice as every case depends upon the facts. The law is forever changing and you need to keep up with these changes. Before you take any action, make sure that you know what you are doing, or call us for specific advice.
