Employment Law - How to negotiate with your employer without Tribunal
At Lawson-West, we recognise that experiencing problems during employment can be incredibly stressful. While some employees may feel comfortable taking their complaints straight to the Employment Tribunal, others may find the process intimidating, or they may prefer to move on from the ordeal as swiftly as possible.
Exit package negotiations
These employees may not realise that it is possible to resolve an employment dispute without issuing a claim to the Employment Tribunal. Rather, they could negotiate directly with their employer to see if it will be possible to reach an agreed ‘exit package’. In our experience, these kinds of negotiations work best when the employee has a legal foundation to their arguments in support of their exit package, and we would be more than happy to assist with providing this legal foundation.
We refer to this work as being ‘pre-litigation’. This means that it is work done before any claims are issued. The most common way for us to help the employee is to provide a letter to be sent to the employer, which will set out the reasons why it is in the employer’s interest to resolve any potential claims at an early stage, and we primarily achieve this by outlining the claims that could be brought by the employee if the negotiations are unsuccessful and the potential cost to the employer, both of defending the claims and in the event that the employee’s claims are successful and they are awarded compensation.
Remember, for a settlement to be achievable, it is usually necessary for there to be a potential claim that could be issued in the alternative to the negotiation, as this is the leverage that is used against the employer. The stronger the potential claim, the greater the likelihood that an agreement can be reached.
It is also important to remember that employers tend to be motivated by costs. It is therefore important for employees to be reasonable when approaching these kinds of negotiated agreements, and it is key that both sides are willing to compromise on their starting positions. A good starting point when considering what would be a reasonable figure to walk away with, is to look at statutory redundancy entitlement (the minimum an employer must pay to a redundant employee). To add to this, we could look at the employee’s contract to determine the value of their notice period and any benefits that would continue to apply during the notice period. Finally, we could consider the realistic value of the compensation that would be awarded if the potential claims were successful.
Extending the terms
In addition, because this is a negotiated agreement, it is possible to achieve greater flexibility in the terms of the agreement. For example, an employee could request an agreed reference, or they could ask for the benefit of a company car to be extended for a set period of time beyond their notice period. The value of these kinds of terms to the employee could be set off against the amount of money they are requesting to help facilitate a compromise.
It is important for the employee to be flexible and to understand that there are benefits to resolving a dispute at such an early stage, namely in terms of the stress, time, effort, and cost that goes into Employment Tribunal matters. If an employee is unwilling to compromise or would prefer the opportunity of issuing their claims to the Employment Tribunal and achieving justice through that means, this kind of early settlement may not be the most sensible way forward.
Time limitation to bring a claim - Limitation Date
While these negotiations are ongoing, it is very important to consider limitation. This is the time limit that applies to all employment claims, and if a claim is started after the limitation period has expired, an Employment Tribunal would be entitled to strike-out the claims for being out of time. If you are concerned about your limitation period, or if you do not know when your limitation period expires, please contact one of our employment lawyers for advice, as soon as possible, or use our helpful online calculator here.
If it does become necessary to issue a claim to the Employment Tribunal, it is important to remember that everything that is said during any negotiations is ‘without prejudice’. This means that, in most circumstances, it cannot be considered by the Employment Tribunal when they hear the claims. Rather, the information should stay strictly private between the employee, the employer, and their respective representatives.
If you are experiencing problems at work and would like to discuss the possibility of achieving a negotiated exit from your employment, please contact one of our employment lawyers who are available for a free, initial discussion. We can advise you accordingly and achieve the best possible outcome for your situation.
Joe Weston, Employment
Lawson-West Solicitors, Leicester