As a practising solicitor who litigates in the Employment Tribunals when push comes to shove, much of my daily work focuses on trying to find a resolution when there is a work issue for my client.
Much has been written about the delays in the Employment Tribunal system and how this is an access to justice issue, but fighting with your employer is about more than this. It causes stress for both parties and takes time and energy to continue fighting. It also costs money on both sides. If a reasonable resolution can be reached, surely that has to be in everyone’s best interests?
Many employers will propose a settlement agreement and an exit on negotiated terms as a way through. This costs them money, including the contribution to legal fees that employers routinely offer for their employees to take legal advice on the agreement, without which the agreement is not legally binding. Note that paying these legal fees is customary, but it is not a legal requirement.
Some employers will be rightly hesitant to suggest a settlement if the circumstances of the issue mean that they cannot have a without prejudice discussion or a protected conversation. This applies where there is no dispute already underway in the case of without prejudice discussions – if the employee does not know the employer wants to exit them and there have been no overt issues, this is problematic. An employer cannot have a protected conversation if a protected characteristic is in play. We often find that where disability is involved, employers are pleased to hear from a constructive lawyer who is opening the door to resolution. Without this intervention, it can be nigh on impossible for the employer to do anything without creating legal risk.
Most employers and HR departments are alive to the fact that finding a resolution does, in fact, save time and effort, quite aside from protecting the organisation from legal risk. A way through has to be preferred. Some organisations don’t work like this at all, though: some insist that all formal processes must be completed internally and findings made before they will consider a settlement. This seems futile in many cases, but if that is the way that the employer operates, it is in fact futile to try to negotiate before those processes have been exhausted. In many cases, we have the experience to be able to tell clients up front if they are likely to encounter this scenario and send them away to complete those processes first.
Another issue which can be hard for our clients is that even where there is an issue, and our client wants to depart employment, sometimes their employer will simply refuse to accept any responsibility and will point-blank refuse to entertain a settlement. This is a rarity, but it does happen, and increasingly it seems to be happening more in the current economic environment. Where this is the case, what is the client to do? Think seriously hard about spending legal fees when the door is firmly closed is the advice I give. Leading a client to believe that you can magic a solution when all signs are that this is impossible is not acting in the client’s best interests. If you’ve tried and hit a wall, the best thing is to stop trying and stop incurring legal fees. The news will hit hard, but radical honesty is the only way forward, and in such an instance, the best advice for the client is to start looking for another job and move on.
This blog was written by Manuela de Castro, Senior Solicitor at didlaw.
