negotiated exits.
doing things differently.
we understand the stress of your situation
As a modern law firm, we have a unique understanding of employment discrimination issues so we can provide you with the right advice. Speak to us today if you are considering legal action.
My job has become unbearable and I want to leave but I don’t want to go to tribunal and I’m afraid about money and the reputational risk of pursuing a claim.
Sound familiar? It is all too common.
Sometimes work becomes unbearable because your employer is quietly firing you – pushing you to leave by treating you badly. This can look really obvious – open bullying, or it can be more subtle – subjecting you to constant micromanagement and criticism. It may be that you have returned to work following time off for ill health or to have a child and when you return the tone has changed and you no longer feel welcome. There are a myriad of reasons why something that once worked no longer works. Working relationships are human, and they shift.
Is constructive dismissal an option?
Technically, constructive dismissal is available to you as a legal remedy but this is a notoriously difficult claim to bring unless there is solid evidence of the mistreatment. All too often the bad behaviour whether it amounts to discrimination or not does not leave an evidence trail and is not in itself serious enough to warrant a constructive dismissal claim. This means it is your word against your employer’s when you come to trial. In a constructive dismissal case, unlike other employment claims, the initial burden of proof is on you to prove that things were so bad you had no option but to leave.
The other kicker with constructive dismissal is that if you mitigate your loss (get another job straight away or fairly quickly) the financial value of your claim drops.
We routinely advise clients that this is not the best route although in some circumstances it may be an option.
What is a better solution than resignation or constructive dismissal?
There is a third way. You can avoid an Employment Tribunal and also resigning without any financial security with the middle way being a negotiated exit.
What is a negotiated exit?
A negotiated exit is where either you or we negotiate with your employer to secure an agreed financial package and in exchange you will be asked to sign a settlement agreement formally renouncing any legal claims you might have. If you DIY the negotiation you will still need to instruct a lawyer because you cannot waive (give up) your legal rights without the agreement being in writing and countersigned by a lawyer. You can also do this free of charge via ACAS by concluding a COT3.
See our CLIENT GUIDE – Settlement Agreements FAQs
For more information on how COT3s work see our CLIENT GUIDE – COT3 agreement FAQs
Some clients prefer to conduct their own negotiation with us working behind the scenes giving advice and tactical tips. Others prefer that we conduct the negotiations. There is no right or wrong way. It is about what you are comfortable with. We do both.
A negotiated exit entails pointing out to your employer the reasons why you think your employment is no longer viable and how they may have got things wrong. Some employers insist on following an internal grievance procedure before engaging in a negotiation and if this is the case we can advise you on your grievance. It is important to get your grievance right because if negotiations fail this will form the basis of your legal claim. Some employers prefer to avoid the time, cost and administration of a formal grievance and this may indicate that, as you have suggested, they have indeed been wanting you to resign and are willing to cut a deal.
All communications around a negotiated exit are conducted on an off the record basis – this is called ‘without prejudice.’ If you conduct your own negotiations you must start by saying to your employer that this is the basis on which you are discussing the issue with them. What this also means is that if the negotiations come to nothing both parties treat those discussions as if they never happened and you have not given anything away.
We routinely negotiate these kinds of exits not least because they are usually much quicker, cheaper and less stressful than formal litigation. We avoid formal litigation where possible because in most cases we do not think it is in the best interests of our clients. Who wants to be tied up in months (even years) of expensive and protracted litigation? Life is too short.
If you are thinking about how to pull the escape cord but are undecided, contact us to organise an initial chat with one of our lawyers where they will be able to explain your options and the associated risks and costs. We also have a long history of negotiating across many sectors and employers and will be able to tell you with reasonable confidence if we think that your employer might be willing to engage in a negotiation.
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didlaw is a trading name of Didlaw Limited, a limited company registered in England & Wales under co. number 8642712.
The registered office is 3 Waterhouse Square, 138-142 Holborn, London, EC1N 2SW. Solicitor | Director Karen Jackson. Non-lawyer | Director Chris Jackson
