Tag: without prejudice negotiations

Categories
Unfair Dismissal

Why You Should (Almost) Never Resign-Make Them Fire You

fair dismissal

Make them fire you.

Don’t make it easy for them.

Let me explain.

If an employer dismisses you it must be a fair dismissal.

And if you bring a case for unfair dismissal the employer will have to prove the dismissal was fair and justified.

The burden of proof is on the employer.

And it can be difficult to justify a dismissal because many employers get the procedure wrong.

In fact, 80% of unfair dismissal cases are lost because of the absence of fair procedures in carrying out the dismissal.

On the other hand, if you quit because of what you claim is the intolerable conduct of the employer you must prove you had no option but to resign.

In other words, the burden of proof shifts from the employer to the employee.

And the standard of proof is pretty high too.

It is not enough to show that (s)he was unpleasant, or rude, or had rough and ready management skills.

No, you must prove you had no option but to quit.

However there are exceptions to every rule and there are two circumstances where you may well be justified in quitting:

  1. Where to continue on in the employment may be injurious to your health and well being or
  2. Where you can negotiate an exit settlement which is satisfactory to you and avoids the inevitable dismissal/termination.

Many employees come to me with serious problems that they are suffering at work.

And many of them are worn out with the anxiety and the hassle that they face on a daily basis at work.

So many of them quit and just move on. Regrettably they have just made things a lot easier for the employer.

It’s not impossible to win a constructive dismissal case. But it’s much harder than to win an unfair dismissal.

So if you are an employee and you are in a difficult situation in work, think long and hard before quitting.

In the short run it can be tough to hang in there.

But in the long run it may be your best option because it allows you to negotiate an exit or bring a successful case for unfair dismissal.

You can learn more about unfair dismissal and constructive dismissal here.

When You Should Resign

You should resign if you are happy to do so, and if you are resigning on terms which are satisfactory to you. This would be when there is a negotiated settlement agreement.

Learn more about negotiated settlements here.

What do you think? Are the issues above familiar to you? Let me hear your comments below.

Categories
Unfair Dismissal

Without Prejudice Negotiations Can Be High Risk for Employers if Not Handled Correctly

without-prejudice-negotiations

“Without prejudice” negotiations in an employment dispute can be an incredibly useful tool.

For many employers, they represent the best route to an acceptable outcome to an employment dispute.

Because, quite frankly, the employer often “hasn’t a leg to stand on”. You wouldn’t believe what some of them get up to!

However, if they are not handled correctly they can backfire badly on the employer.

Well Drafted Settlement Agreement

And without a well drafted agreement, the employer does run the risk of an employee collecting on foot of a settlement and bringing legal proceedings afterwards.

Without prejudice discussions or negotiations are generally, but not always, excluded from being introduced into evidence in subsequent legal proceedings.

The purpose of such discussions are to resolve the dispute to the satisfaction of both parties without the costs associated with going to Court or some other dispute resolution body.

“Without prejudice” negotiations should be carried on between lawyers for both sides, not the parties themselves. In the employment context it is a mistake for the employer to carry on “off the record” or “without prejudice” discussions with an employee.

The reason for this is simple: the employee may claim not to have fully understood the implications of such discussions.

And if this is the case the employee may well claim that even though she gave her consent for such discussions to be private, “off the record”, and “without prejudice” that her consent was not informed consent.

Independent Legal Advice

The employer should ensure that the employee has obtained independent legal advice and confirms this in writing.

Any decision maker, be it a Court or tribunal, is likely to find for the employee on this point given the perceived and/or real imbalance of power between employer and employee.

There is another reason why without prejudice negotiations or discussions can backfire on the employer.

For discussions to be truly without prejudice there must be a dispute between the parties; and the discussions must be an attempt to settle that dispute. Not a dispute in the normal sense of the word but a dispute in which legal proceedings have commenced or are being contemplated.

It’s not always certain whether a “dispute” would therefore exist to allow “without prejudice” discussions.

As state above “without prejudice” discussions can sometimes be admitted in evidence in subsequent legal proceedings. The High Court has held that without prejudice discussions can be admitted in evidence where the interests of justice require it.

For employers therefore it is prudent not to make a without prejudice offer directly to the employee to agree their exit from the employment.  Such an offer could be put forward by the employee in an unfair dismissal claim as evidence of dismissal.

The better course of action is for the employer to instruct a solicitor to negotiate with the employee’s solicitor.

It is better again if the employee or his/her solicitor initiates the discussions.

Negotiations between solicitors will be more structured and reduce the chance of the employee claiming that she did not know what without prejudice discussions meant. And the written settlement agreement should be water tight.

So if you are an employer and are thinking about getting rid of a troublesome employee, you should give some serious consideration to a “negotiated exit” through without prejudice negotiations.

It will probably be cheaper in the long run.