I’ve used this phrase more often than I care to remember, both to potential claimants and to employers. Unless you are a particular kind of person, an employment tribunal is not a pleasant place to while away the hours and days.
From the point of view of the employee, you never get what you really want, either in terms of money or justice. Also you end up focussing on an unpleasant part of your life when it would be much more fulfilling to look forward to the future. From the employers point of
View the cost of settling is usually no more expensive than the cost of fighting and winning a case, especially when you take into account the time spent on a case and the disruption to the company. I understand that sometimes an employer will want to make a stand so that people who have worked for you don’t make a claim just for the hell of it. But the number of times that happens is rare.
So what is the alternative? These days you can opt for a settlement agreement (formerly known as a compromise agreement) which is a well tried approach that both protects the employer from future legal action, and draws a line under the issue for the employee. However if you choose this route, be prepared to haggle (a very “un-British” thing to do) because most employees will get legal advice and will reject the first offer and ask for more.
So here are a few guidelines if you are an employer and you want to try for a settlement agreement:
1) Start low, end low. Don’t offer a high settlement figure in the hope your employee will settle quickly. They will nearly always assume you have more money, and ask for more. A good rule of thumb is to calculate how much they would get if they were made redundant. You can check this on the ACAS website (www.gov.uk/calculate-your-redundancy-pay).
2) Don’t make threats. If your employee has accepted that a settlement agreement is a good idea, they have already made the mental leap that they are leaving, they can still change their mind and antagonising them is a good way to achieve this!
3) Put deadlines on offers, but be flexible. Often an employee’s advisor cannot comply with a deadline because they have other work commitments.
4) If you do feel you are being “mucked about” be prepared to get the employee back to work when negotiations have stalled. The employee has already decided that they want to leave so coming back to work is the last thing they want to do.
5) Don’t get hung up on side issues like the wording of references or confidentiality agreements, they rarely make a difference in the real world and can delay an agreement. And finally…
6) Don’t get too emotionally involved, this is just business and you need to look to the future.
Obviously there will be occasions when these guidelines don’t apply or need to be “bent” a little, but the key to all of this is to make sure you have an advisor who is not only on your side but is also prepared to tell you the truth when you least want to hear it.