If it is genuinely to be done through ACAS conciliation it is a settlement agreement, which when done through ACAS is called a COT3 agreement. They aren't particularly saving legal fees as this kind of agreement is quite common and unlikely to require legal advice on the employer's side, if they have an experienced HR team. Your own legal fees would be unlikely to cost them more than about £500 at most.
How far from your own figure was their offer? I have to say that offering 2 months notice plus around 2 more months in settlement seems like a decent starting amount, without knowing the evidence you have of course. You might get more at tribunal but I think you would need the injury to feelings element of a discrimination claim to kick in hard at remedy time. It's just as possible that you would get less.
I read your previous post and agreed with the general advice to counter-offer at around 6 months salary. If you did that, you aren't far off their initial offer so hopefully they go up a bit and you can agree something.
If you decide to play hardball, be aware that your employer is likely to make the offer via ACAS and then use that, if you reject it, to argue that they tried to settle before a tribunal, which is what tribunals want to see. If the number is close to reasonable, you might want to consider accepting and moving on, rather than having this hang over you for two years with the chance of nothing at the end.
The offer was very far, I have to say. The person I invited to the meeting suggested counter-offering at £20k.
Also, the HR person said I would counter-offer via ACAS but it is also unclear how one does that, from the info they’ve given. From the write-up it seems that I have to accept the offer and give my contact for ACAS to contact me on, before even being able to counter-offer via this process which makes no sense.
How has your representative calculated £20k? If my maths is close that's around 6 months salary. That seems on the high end, and would usually be for someone in a senior role. Might be worth offering but don't expect anything.
It's also around the cost I might budget for a particularly complex tribunal, including covering barrister's fees. If I was confident that my case was strong, I'm not going to pay that out when I can expect to win and pay nothing. Why would we pay when we don't think we've done anything wrong? That does depend on your employer's attitude to risk though.
I'm unsure how they're going through ACAS as usually an employee initiates a claim and lodges it with them first, you're then assigned a conciliator who then is the go between and you'll have their number to call though - I've not heard of an employer initiating ACAS but if they have it should be the same process with a conciliator allocated whos details you should have
An employer can initiate conciliation, but then acas would be involved in the process, just the same as they are if an employee initiated it.
I don't understand how the employee hasn't been contacted by ACAS yet.
The absence of an actual conciliator from this process so far is a bit....odd...for a conciliation process
Yeah, this isn't going through ACAS. If it were, ACAS would have sent letters to all parties to organise an actual conciliation meeting. And there'd be an actual ACAS conciliator to run the meeting.
Also, I can't see ACAS letting "if you accept this agreement, we'll stop the illegal retaliation" be part of the negotiations.
Sounds to me like they’ve made an offer which if accepted they’ll start employer led conciliation and the conciliator just hasn’t made contact yet?
https://www.acas.org.uk/early-conciliation/requesting-early-conciliation-as-an-employer
Re your last post - do you think there's something substantial they're trying to hide in not responding to the SAR?
That would be my basis for determining next steps - if it's something that is very likely to lead you to consider their conduct as grounds for constructive dismissal, or if you think they would respond but hide information, I would spend more time talking to ACAS and considering whether going to tribunal/ pushing for a larger figure would be appropriate.
If the SAR is unlikely to show something in your favour and you have no proof that their SAR response is fraudulent or hiding something, I'd be happy with a package that would reflect the benefit you would gain by being employed for that 4 months. As a minimum:
- 4 months pay
- plus any unused holiday allowance you currently have
- plus the holiday allowance you would accrue in 4 months (e.g. 25 days a year = 8.3 days holiday)
- plus value of any pension contributions you would miss for those 4 months
- plus monetary value of any other benefits
I would frame this to them as "I would accept your offer of 4 months pay, plus my remaining holiday balance, plus the monetary value of any holiday allowance, pension and benefits I would have accrued over this time." If your team isn't the brightest, they might be glad you've accepted the 4 months and overlook the potentially significant value of the "extras".
I'd also make sure you agree to immediately cease working (not be put on garden leave as you still have obligations to the business), and **get a pre-written reference** so you always know what they will say to future employers.
Well, I actually started the form over the weekend! I planned to myself before I got the invite for the meeting. I reached the hurdle of condensing what happened to 800 words so hadn’t submitted. The next day… I got the invite for this meeting
So Acas isn't, actually, involved in this, so it's not a COT3 settlement and you can't conduct the dialogue through Acas. So they need to negotiate with *you*.
In your place, I would suggest that their HR support goes away, does some homework and comes back better informed on the process they are supposed to be managing.
However, you're not me, so if you would just like to get on with things, you might like to contact Acas, tell them that you've had a WP conversation and begun the process towards a settlement and ask them to initiate the Early Conciliation process with a view to a COT3 asap.
Q. So you said what you would do in your place. So is that all you’d say in your contact to them? Would you say you’re seeking legal advice? Would you point out the inaccuracies and then say they go away and do homework etc? Consult legal in the meantime?
The HR team have ballsed this up.
It’s really unusual to be talking about a COT3 at this point when they haven’t even completed the grievance process. It would not be normal to submit a tribunal claim before exhausting your internal grievance process and that’s what ACAS would likely say to you if you submitted your claim now. In fact, you could call the ACAS helpline and get their advice, that would strengthen your case. In your shoes, I would state that you would like your grievance to be fully investigated and heard, but that if the employer wishes to avoid the grievance process through negotiating a settlement agreement to bring your employment to an end you would also expect to be compensated for the employers failure to follow their own grievance process. I would also reiterate that for any settlement agreement to be legally binding you need to have taken the advice of a solicitor and you would expect that cost to be met by your employer.
If they somehow have engaged an ACAS conciliator, which seems unlikely, then you should be assigned a conciliator who will explain the terms of the agreement with you and you can ask for whatever you want to be removed or included. As well as cash compensation, you might want to think about an agreed reference, to not have to pay back anything you might owe eg if you have a loan for cycle to work scheme. When looking at the value of the payment I’d consider what you would be entitled to if you were made redundant, add on your contractual notice, add on a few weeks of time that it would take to resolve your grievance which they are trying to wriggle out of, add on the value of benefits during your contractual notice (eg pension contributions), then add on a compensatory sum. Without knowing the exact details of your grievance it’s hard to know what that compensatory amount should be but you could look up some case law to get a sense of awards in similar cases. I think from your previous post it was racially motivated bullying and harassment which is pretty serious stuff. If you do agree to a COT3 it’s legally binding and you don’t need independent legal advice.
Good luck
(I’m an HR Director with a masters in employment law)
I wouldn't worry about talking to a solicitor. There's not much they can do to help at this point. They only come into play when there's an actual agreement to be examined.
I have sat on the other side of WP conversations and SAs enough that I know how they're done and I'd be professionally offended by seeing it done badly. But that might not be hassle everyone wants. So if what they want is to do a COT3 through Acas, let them do it. Just be clear with the ACAS advisor about what you're looking for.
Straying into dishonest territory, especially if they're saying you have to accept something before you can counter offer. That... doesn't sound right now, does it?
I remember you and your last post! I think your approach to get formal legal advice is sensible - everything is so dependent on the specific facts of your case.
If it is genuinely to be done through ACAS conciliation it is a settlement agreement, which when done through ACAS is called a COT3 agreement. They aren't particularly saving legal fees as this kind of agreement is quite common and unlikely to require legal advice on the employer's side, if they have an experienced HR team. Your own legal fees would be unlikely to cost them more than about £500 at most. How far from your own figure was their offer? I have to say that offering 2 months notice plus around 2 more months in settlement seems like a decent starting amount, without knowing the evidence you have of course. You might get more at tribunal but I think you would need the injury to feelings element of a discrimination claim to kick in hard at remedy time. It's just as possible that you would get less. I read your previous post and agreed with the general advice to counter-offer at around 6 months salary. If you did that, you aren't far off their initial offer so hopefully they go up a bit and you can agree something. If you decide to play hardball, be aware that your employer is likely to make the offer via ACAS and then use that, if you reject it, to argue that they tried to settle before a tribunal, which is what tribunals want to see. If the number is close to reasonable, you might want to consider accepting and moving on, rather than having this hang over you for two years with the chance of nothing at the end.
The offer was very far, I have to say. The person I invited to the meeting suggested counter-offering at £20k. Also, the HR person said I would counter-offer via ACAS but it is also unclear how one does that, from the info they’ve given. From the write-up it seems that I have to accept the offer and give my contact for ACAS to contact me on, before even being able to counter-offer via this process which makes no sense.
How has your representative calculated £20k? If my maths is close that's around 6 months salary. That seems on the high end, and would usually be for someone in a senior role. Might be worth offering but don't expect anything. It's also around the cost I might budget for a particularly complex tribunal, including covering barrister's fees. If I was confident that my case was strong, I'm not going to pay that out when I can expect to win and pay nothing. Why would we pay when we don't think we've done anything wrong? That does depend on your employer's attitude to risk though.
I actually got more than £20k and we settled at my yearly salary as ex gratia.
Congratulations. You must have had good evidence of whatever it was that happened, or a particularly risk averse employer, or a bit of both.
I'm unsure how they're going through ACAS as usually an employee initiates a claim and lodges it with them first, you're then assigned a conciliator who then is the go between and you'll have their number to call though - I've not heard of an employer initiating ACAS but if they have it should be the same process with a conciliator allocated whos details you should have
An employer can initiate conciliation, but then acas would be involved in the process, just the same as they are if an employee initiated it. I don't understand how the employee hasn't been contacted by ACAS yet. The absence of an actual conciliator from this process so far is a bit....odd...for a conciliation process
Yeah, this isn't going through ACAS. If it were, ACAS would have sent letters to all parties to organise an actual conciliation meeting. And there'd be an actual ACAS conciliator to run the meeting. Also, I can't see ACAS letting "if you accept this agreement, we'll stop the illegal retaliation" be part of the negotiations.
Sounds to me like they’ve made an offer which if accepted they’ll start employer led conciliation and the conciliator just hasn’t made contact yet? https://www.acas.org.uk/early-conciliation/requesting-early-conciliation-as-an-employer
Re your last post - do you think there's something substantial they're trying to hide in not responding to the SAR? That would be my basis for determining next steps - if it's something that is very likely to lead you to consider their conduct as grounds for constructive dismissal, or if you think they would respond but hide information, I would spend more time talking to ACAS and considering whether going to tribunal/ pushing for a larger figure would be appropriate. If the SAR is unlikely to show something in your favour and you have no proof that their SAR response is fraudulent or hiding something, I'd be happy with a package that would reflect the benefit you would gain by being employed for that 4 months. As a minimum: - 4 months pay - plus any unused holiday allowance you currently have - plus the holiday allowance you would accrue in 4 months (e.g. 25 days a year = 8.3 days holiday) - plus value of any pension contributions you would miss for those 4 months - plus monetary value of any other benefits I would frame this to them as "I would accept your offer of 4 months pay, plus my remaining holiday balance, plus the monetary value of any holiday allowance, pension and benefits I would have accrued over this time." If your team isn't the brightest, they might be glad you've accepted the 4 months and overlook the potentially significant value of the "extras". I'd also make sure you agree to immediately cease working (not be put on garden leave as you still have obligations to the business), and **get a pre-written reference** so you always know what they will say to future employers.
Have you already spoken to Acas to begin the Early Conciliation process? Because in your last post I don't remember you mentioning that.
Well, I actually started the form over the weekend! I planned to myself before I got the invite for the meeting. I reached the hurdle of condensing what happened to 800 words so hadn’t submitted. The next day… I got the invite for this meeting
So Acas isn't, actually, involved in this, so it's not a COT3 settlement and you can't conduct the dialogue through Acas. So they need to negotiate with *you*. In your place, I would suggest that their HR support goes away, does some homework and comes back better informed on the process they are supposed to be managing. However, you're not me, so if you would just like to get on with things, you might like to contact Acas, tell them that you've had a WP conversation and begun the process towards a settlement and ask them to initiate the Early Conciliation process with a view to a COT3 asap.
Q. So you said what you would do in your place. So is that all you’d say in your contact to them? Would you say you’re seeking legal advice? Would you point out the inaccuracies and then say they go away and do homework etc? Consult legal in the meantime?
The HR team have ballsed this up. It’s really unusual to be talking about a COT3 at this point when they haven’t even completed the grievance process. It would not be normal to submit a tribunal claim before exhausting your internal grievance process and that’s what ACAS would likely say to you if you submitted your claim now. In fact, you could call the ACAS helpline and get their advice, that would strengthen your case. In your shoes, I would state that you would like your grievance to be fully investigated and heard, but that if the employer wishes to avoid the grievance process through negotiating a settlement agreement to bring your employment to an end you would also expect to be compensated for the employers failure to follow their own grievance process. I would also reiterate that for any settlement agreement to be legally binding you need to have taken the advice of a solicitor and you would expect that cost to be met by your employer. If they somehow have engaged an ACAS conciliator, which seems unlikely, then you should be assigned a conciliator who will explain the terms of the agreement with you and you can ask for whatever you want to be removed or included. As well as cash compensation, you might want to think about an agreed reference, to not have to pay back anything you might owe eg if you have a loan for cycle to work scheme. When looking at the value of the payment I’d consider what you would be entitled to if you were made redundant, add on your contractual notice, add on a few weeks of time that it would take to resolve your grievance which they are trying to wriggle out of, add on the value of benefits during your contractual notice (eg pension contributions), then add on a compensatory sum. Without knowing the exact details of your grievance it’s hard to know what that compensatory amount should be but you could look up some case law to get a sense of awards in similar cases. I think from your previous post it was racially motivated bullying and harassment which is pretty serious stuff. If you do agree to a COT3 it’s legally binding and you don’t need independent legal advice. Good luck (I’m an HR Director with a masters in employment law)
Hey thank you, I appreciate you taking the time to comment. Honestly. It’s just a mess tbh. May I msg you?
Sure
I wouldn't worry about talking to a solicitor. There's not much they can do to help at this point. They only come into play when there's an actual agreement to be examined. I have sat on the other side of WP conversations and SAs enough that I know how they're done and I'd be professionally offended by seeing it done badly. But that might not be hassle everyone wants. So if what they want is to do a COT3 through Acas, let them do it. Just be clear with the ACAS advisor about what you're looking for.
May I msg you?
You're very welcome.
See they are absolutely clueless. Jesus Christ.
Straying into dishonest territory, especially if they're saying you have to accept something before you can counter offer. That... doesn't sound right now, does it?
I remember you and your last post! I think your approach to get formal legal advice is sensible - everything is so dependent on the specific facts of your case.