Is #Priti #Patel a bully?


It won’t surprise you that the question in the title is not one I am going to get into.

Firstly, just as I would be reluctant to label a child as a ‘naughty child’ just because they occasionally did something naughty, so I am reluctant to label any individual as being a ‘bully’ just because they may have displayed bullying behaviours.

Secondly, the concept of bullying means different things to different people and is somewhat difficult to define.

In a recent CIPD survey 20% of organisations reported an increase in negative conflict such as bullying and harassment in the workplace.  This is not surprising given the current covid related situation with so many people having to work in difficult circumstances.

Bullying and harassment are frequently complained of when employees are put under pressure in some way.  Their work is criticised, they are under the threat of redundancy, or their attendance is being reviewed are three typical examples.  This is not to suggest that it doesn’t also occur because some people intentionally or otherwise seek to intimidate or dominate colleagues.

In Priti Patel’s case, leaked reports in The Times suggest that she told civil servants that they were ‘f***ing useless’, and even the brief findings of the full report by Sir Alan Allan, reproduced in The Guardian, refers to ‘occasions of shouting and swearing’.

What is bullying?

The definition of bullying poses challenges, and I covered the similarities and differences between bullying and harassment in a previous blog about sexual harassment.

There are lots of different definitions of bullying (unlike harassment which has a legal definition in the Equality Act 2010), with the definition by #ACAS as the most frequently referred to

‘offensive, intimidating, malicious or insulting behaviour, an abuse or misuse of power through means that undermine, humiliate, denigrate or injure the recipient’.

The Civil Service have their own definition quoted in the report about the Home Secretary’s recent behaviour

‘intimidating or insulting behaviour that makes an individual feel uncomfortable, frightened, less respected or put down’.

Interestingly, the Civil Service guidance also makes this helpful comment

‘legitimate, reasonable and constructive criticism of a worker’s performance will not amount to bullying’.

How will I recognise it?

Helpfully, in another publication, ACAS give us a few examples which include

  • someone has spread a false rumour about you
  • someone keeps putting you down in meetings
  • your boss does not let you go on training courses but they allow everyone else to
  • your boss keeps giving you heavier workloads than everyone else
  • your team never lets you join social events

Sometimes physical intimidation can be involved such as when a boss stands or sits on their desk towering over an employee whilst addressing them, or invades their personal space.

Does intention matter?

Priti Patel said ‘I have never intentionally set out to upset anyone’.  Sir Alan’s report acknowledges that the bullying behaviours may not have been intentional and that the Home Secretary was ‘frustrated by the Home Office leadership’s lack of responsiveness’.  But, that’s not really the point, it’s more the effect that is important!

Unlike harassment (which is similar, but on the basis of some form of discrimination), bullying in itself can’t give rise to a claim in front of an Employment Tribunal.  In most cases bullying gives rise to a claim for constructive dismissal, and it is for the Tribunal to decide whether the behaviour complained of was so serious as to breach the implied duty of trust and confidence that should exist between an employee and their employer.

They may decide this in relation to Sir Philip Rutnam’s constructive dismissal claim against Priti Patel after he resigned in February alleging bullying and whistleblowing.

The intention of the perpetrator does not matter (it’s not an excuse).

Being the subject of bullying behaviour can make some people ill with stress/anxiety etc. and give rise to a personal injury claim, and it may even be a breach of an employer’s ‘duty of care’ in health and safety terms, particularly if nothing is done after a complaint.

What do employers need to do about bullying?

  • A clear Harassment and Bullying Policy (and the best will give examples so that employees understand the types of behaviours that are unacceptable) will be important in large organisations, but they are not everything.
  • What will be far more significant will be leaders challenging bullying behaviours, setting an example themselves, and providing guidance to individuals when unhelpful behaviours are observed. Remember, that for some people, it will be unintentional, and a quiet word will ‘nip it in the bud’.
  • Don’t forget that your responsibilities will also extend to events outside work, but that are reasonably connected to work – this could include the pub next door where everyone goes for a drink after work on Friday.
  • Either in work or connected to work in some way, don’t fall into the trap of thinking that if nobody complains I don’t have to do anything. ‘I can’t do anything unless you put it in writing’ never has been an appropriate response in this area.
  • Encourage leaders to be proactive and create an environment where people feel it is safe to raise issues and that their concerns will be treated with appropriate confidentiality.

Above all, remember that colleagues do not perform at their best in an environment where bullying is allowed or condoned.  It rarely gets the best out of people, so there is a cost to the business.

Given the outstanding Rutnam case mentioned above, we have not heard the end of this matter.

For me, it’s provided a nice opportunity to write about something other than covid related employment matters.

Stay safe.

Ken Allison | 25 November 2020 | Paradigm Partners |

Ken Allison is an engaging trainer and speaker who manages to make his topics, highly interactive, challenging, entertaining, and above all, relevant to the 21st Century executive. Ken uses his understanding of managing businesses to show managers what they ‘can do’ rather than what they ‘cannot do’.

Ken specialises in taking the strain out of employment law related people issues through training workshops for managers, and his firm’s ‘ExecutiveHR’ service, providing telephone based support services to businesses throughout the UK.

Questions for the ‘New Normal’…. 5 questions I’ve been asked in #CEO groups in the last fortnight.

During the last fortnight I’ve given my presentation, ‘The F Word’, to about 200 #CEOs of #SME businesses, most of whom have been grappling with getting their businesses fit for the future and maximising the benefit of the CJRS to conserve their cash flow as we get the country back to work.

Here are 5 of the most popular questions I have been asked.

1.  If an employee doesn’t want to carry out their role if you bring them back from furlough can you leave them on it?

Not all my answers are so long (!) but this really is an important issue at the moment.

Although not wanting to carry out their role is different from not wanting to come back to work, you can leave an employee on furlough as long as you like and as long as the scheme is available, but just remember that it looks as if from August employers will have to contribute towards the 80% wages costs.

Grappling with the ‘reluctant returners’ is one of the most difficult issues being faced by employers at the moment.  Despite the fact that ACAS say that ‘If an employee refuses to attend work without a valid reason, it could result in disciplinary action’, any action should be preceded with dialogue.

That dialogue should endeavour to address the anxieties of staff, and in particular, the steps you have taken to make the workplace safe.

I have covered what the various anxieties might be in a previous blog, and emphasised the need to be able to demonstrate that you have complied with the Governments 5 steps to a covid safe working environment:-

  • Carried out and shared the results of a covid 19 risk assessment
  • Have cleaning, handwashing and hygiene procedures
  • Helped people to work from home wherever possible
  • Taken steps to maintain 2m distance at work
  • Where not possible to maintain social distancing, done everything practical to manage the risk

Following these steps and communicating them to employees will go a long way to removing their anxieties and preventing a claim that they reasonably perceived that they were in imminent danger if they came to work, which is most likely to be their claim if action is taken against them.

Ultimately, if someone is refusing to return to work, that could lead to a dismissal, but it is a situation where you will need professional advice.

2.  We have terminated the contract of someone with less than 2 years’ service. Notice expires end June. She wants us to keep her on furlough until it runs out. Could we or should we do that?

Someone with less than two years’ service can be dismissed without a reasonable process.  That’s not to suggest that you behave unreasonably, but you do have more flexibility with these colleagues when faced with having to make redundancies, and this is probably the context of the question.

You can extend her notice if you wish to, but take care that does not lead to her accruing the two years necessary to claim unfair dismissal.  Also note that she will accrue more holidays, so require that they be taken during her notice.

3.  Can we alter the furlough agreement re holiday clause?

Yes, employers have always been able to require that holidays be taken at specific times.  Many do it at Christmas, and some have measures that ensure holidays are evenly distributed throughout the year (phased holidays).

If you have not provided for holidays in your original furlough agreement  here’s an example of something you could add:-

‘We require you to use all accrued holiday by the end of July, and if we extend your furlough further, any more holidays accrued must also be used by the new end date for furlough.  If you have any doubts about the rate of holiday accrual, please discuss this with one of us, but basically most of you will have a total holiday entitlement of 32 days including public holidays which accrue at the rate of 2.66 days per month.

You should book your holidays in the normal way, and you may want to choose dates that you definitely would prefer us not to call you back into work’.

You do not have to follow this exactly; a lot might depend on where you are in your holiday year.  Clearing at least 50% of your accrued leave might be another option.

4.  I understood employees can carry holiday over for 2 years due to Covid, is this right?

This is only partially correct.  The Government has passed legislation which allows the carry forward of annual leave where the employee has been prevented from taking it – normally carry forward of 4 weeks of the statutory 5.6 weeks holiday is not allowed.

It is only really for situations where an employee wants to take their leave in the current year, but cannot because you are, for instance, too busy.

The Government has published guidance on the topic, which includes on the rate of pay for holidays during furlough – although, frankly, they simply quote complex regulations which are rarely followed to the letter anyway.

The consensus amongst legal commentators is that whether on furlough or during a temporary period of reduced salary or hours, holiday pay should be at the ‘normal’ (100%) level for salaried staff.  There are different rules where pay varies.

5.  If an employee agrees to resign, rather than be made redundant, can they give a resignation notice to expire at the end of July, and if they do, can they withdraw it before that time or can it be enforced?

They can give you notice which is longer than required in their contract and you can refuse to allow a withdrawal of notice.  There are circumstances in which you need to take care in refusing.

For instance, if a resignation was given in haste, such as after an argument.  Then it might be reasonable to allow a withdrawal.

A resignation under pressure might also lead to an unfair dismissal claim – for instance, a situation where you put it to someone to resign or else, we will make you redundant!

These questions were also interspersed with lots of others about the challenges of managing colleagues who are working remotely.  I covered this briefly in my recent #LinkedIn blog and I intend to return to this theme in the future.

Watch this space.

Ken Allison | 28th May 2020 | Paradigm Partners |

Ken Allison is an engaging trainer and speaker who manages to make his topics, highly interactive, challenging, entertaining, and above all, relevant to the 21st Century executive. Ken uses his understanding of managing businesses to show managers what they ‘can do’ rather than what they ‘cannot do’.

Ken specialises in taking the strain out of employment law related people issues through training workshops for managers, and his firm’s ‘ExecutiveHR’ service, providing telephone based support services to businesses throughout the UK.

Nothing in this article should be relied on as a substitute for taking professional advice about your particular situation.




Has sexual harassment in the workplace increased?

Here’s my take on one of the most covered employment related news topics this year, and answers to some key questions.

With the amount of press coverage given to the behaviour of politicians, aid workers, business leaders, film producers, and large companies such as #Google and #Uber involved with allegations in the last year, you could be forgiven for thinking that #sexualharassment in the workplace has increased.

It probably hasn’t, but there is little doubt that there has been increased reporting as various campaigns (#MeToo, #TimesUp etc) have drawn attention to this issue.  Despite all this attention, only 30% of respondents to a recent ACAS Survey thought that sexual harassment had decreased in the last five years and only 24% thought that recent international media coverage had improved their workplace culture.

We appear to have an endemic problem which in the past has not been reported.  In their ‘Ending sexual harassment at work report’ (2018) the Equality and Human Rights Commission found that approximately 50% of respondents had not reported harassment due to fears of consequent victimisation and a feeling that senior management was ‘untouchable’.

OK, so that’s the big picture, but what are the everyday questions that key decision makers in businesses need to understand.

What is sexual harassment?

It’s a form of discrimination, and there is a statutory definition found in the Equality Act 2010.  ACAS summarises it like this:-

‘Unwanted conduct related to ‘sex’ (editor), which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual’.

The definition includes behaviour that might not be specifically aimed at one individual (for instance circulating offensive material of a sexual nature) and treating someone less favourably because they either accepted or rejected conduct of a sexual nature (someone gets overlooked for promotion because they rejected a sexual advance).

What is the difference between harassment and bullying?

People often claim these two things together.  There is a distinction, but it is quite a fine one!

Bullying is behaviour that has similar effects as harassment but is not on the basis of sex or any other characteristic that is protected by equality legislation.  It usually involves an abuse or misuse of power.

Bullying is not discrimination, but an aggrieved employee can resign and claim constructive dismissal, and if their health suffers, for instance because of persistent intimidation, they may well have a personal injury claim on the basis of the employer failing in their health and safety ‘duty of care’.

On the other hand, someone who suffers harassment can go to an Employment Tribunal and claim discrimination, for which compensation is uncapped.

Is it my responsibility to take action even if nobody is complaining?

Employees may be too scared to report this type of behaviour, but this does not mean you should ignore it if you know it is going on.

It will often be affecting performance, productivity, absence from work, and unnecessary staff turnover. It will be costing your business money, not to mention huge reputational risk.

The least you should do is investigate.

Do I need an anti-bullying and harassment policy?

If you have heard one of my #ceo briefings, you’ll know that I am not a great fan of solving things via a policy.  It rarely works.

Formal or informal (a quiet word) education and training and setting an example yourself, are likely to be more effective.

There is a big ‘however’ here though.

A policy (and the best will give examples so that employees understand the types of behaviours that are unacceptable) that is effectively reinforced may well prevent bullying and harassment, and if it doesn’t, it may still lead a Tribunal to conclude that an employer had taken reasonable steps to prevent these behaviours and thus not be liable.

If you are a small organisation without a policy, a Tribunal would take the size and resources of your organisation into account and is very unlikely to penalise you for not having one.

In summary, my advice would be if you have a staff handbook, then add a policy if you don’t already have one.  If you don’t have a staff handbook, don’t get one just for this reason.

Is telling someone what to do bullying or harassment?

Employees often claim bullying or harassment when they are told to do something they don’t like doing, or they are given critical feedback.

If you are asking someone to do something, and you would not ask someone of the opposite sex to do that, it may amount to harassment.  Similarly, if the manner you speak to someone is different because of their sex.

Ordinarily, just telling someone what to do or giving critical feedback is well within the expectations of an employment relationship, and I would make this clear in any policy with a statement such as:-

‘Legitimate, reasonable and constructive criticism of your performance or behaviour, or reasonable instructions given to you in the course of your employment, will not amount to bullying on their own’.

Stories of sexual misconduct have caused considerable political embarrassment this year, and it is a shame that it takes this to encourage further action, although whilst the Government is otherwise distracted (sorry Bob – Bored of Brexit – I had to mention it!) we may see nothing more than promises.

There has been talk of :-

  • creating a mandatory duty to prevent sexual harassment (which would presumably require an employer to do something about an incident even if the victim did not want it pursued),
  • a ‘code of practice’ similar to those we have for discipline or flexible working,
  • the reinstatement of protection against third party harassment (various surveys have estimated that 15 to 20% of sexual harassment has been perpetrated by customers or clients)
  • extending Employment Tribunal claim limits from 3 to 6 months for sexual harassment cases,
  • banning redundancy during pregnancy, maternity leave and for six months afterwards (in 2015 54,000 women lost their jobs as a result of pregnancy discrimination) as is already the case in Germany,
  • extending protection from sexual harassment to volunteers and interns, and
  • making ‘gagging’ clauses illegal in respect of sexual harassment.

The moral here is not to wait for legislation.

Take some of the steps outlined above.  Investigate concerns, set an example yourself, have a preventative quite word where necessary, and get and promote a policy (surprise, surprise, we can provide one if you want).


Ken Allison | 28 November 2018 | Paradigm Partners |

Ken Allison is an engaging trainer and speaker who manages to make his topics, on handling employment law related people issues and other HR stuff, highly interactive, challenging, entertaining, and above all, relevant to the 21st Century executive. Ken uses his understanding of managing businesses to show managers what they ‘can do’ rather than what they ‘cannot do’.

Through his firm’s ‘ExecutiveHR’ service, Ken also provides telephone based support services to businesses throughout the UK.

This blog is not a substitute for taking legal advice!


Why would Mark Sampson go to an Employment Tribunal?

The papers last weekend predicted that Mark Sampson, the recently departed Manager of the England Women’s’ Football team would go to an #Employment #Tribunal and claim either unfair dismissal (The Telegraph) or wrongful dismissal (The Times).

FA Arbitration rules may mean that talk of a Tribunal is completely misplaced, but what’s the story so far, what does it tell us about handling this type of situation, and what sort of case would Sampson have in front of a Tribunal.

Firstly, the story as it appears in the press seems to be that Sampson was recently accused of making racist remarks to two players, Drew Spence (how many times had she been arrested) and Eli Aluka (a reference to her relatives not bringing Ebola with them from Nigeria).

Sampson denies these allegations, and was twice cleared by an investigation instigated by the FA.

Dramatically, last Wednesday (20th Sept 2017) Sampson’s employment was terminated, and a third investigation into the racist remarks was launched. The sacking was as a result of a re-examination of an earlier investigation into an incident whilst Sampson was at the Bristol Academy between 2009 and 2013.

This was despite this previous investigation concluding that Sampson did not pose a risk (and only recommended he attend a course) the FA said

“it is our judgement that it (the report) revealed clear evidence of inappropriate and unacceptable behaviour by a coach” (FA Statement).

Secondly, let’s look at how this has been handled.

Football does not have a good record on these types of issues. In 2014 Richard Scudamore (Chief Executive of the Premier League) drew the wrath of politicians as a result of sexist remarks made in emails, and last year we saw both Chelsea FC and Jose Mourinho in front of an Employment Tribunal over the constructive dismissal of their first team doctor.

On Monday 26th September 2017 the FA made a further statement backing their Chief executive (Martin Glenn), but questions about the procedure are clearly being asked. Several FA officials are likely to have to face parliamentary scrutiny in October.

It is reported that Sampson was sacked with a £20k pay off, and we probably will never know if this is true. He could well have concluded a deal covered by a settlement agreement committing both parties to respect confidentiality, or he may have been sacked pending negotiations of a settlement.

There are four issues to think about when in this situation.

1. It would probably have been reasonable for the FA to have taken the Bristol report into consideration if it was concluding that there had been racist remarks or other related behaviours, but to sack on the basis of an old incident, when no action was taken at the time, is unlikely to get across the required threshold of reasonableness at a Tribunal.

2. There may be an angle that Sampson should have declared the Bristol incident at his interview, but after an exceptional record in terms of results, it would probably be hard to sustain this as a fair reason for dismissal.

3. The FA could have met with Sampson when their attention was drawn to the old report, and opened negotiations about a settlement agreement as an alternative to a third investigation possibly concluding that he be sacked for gross misconduct. Indeed, this may well be what happened – the FA Statement (see above for link) does say

‘we have acted quickly to agree a termination of Sampson’s contract’ (notice the word ‘agree’ – does that mean the FA Board agreed, or that they agreed with Sampson!)

They clearly had substantial reputational issues which would have legitimised this approach, although the danger of white washing allegations would obviously be present.

4. They may have felt that the PR surrounding this case was severe enough to dismiss without a reasonable procedure or a settlement agreement. This is the ‘fire and be damned’ or the ‘walk to the car park’ approach.

They will have been advised about the risks and decided to sack Sampson and negotiate from there.

Thirdly, what are Sampson’s possible claims?

If he was just sacked for gross misconduct because of the Bristol incident, then this could give rise to an unfair dismissal claim, but compensation will be limited to about £80k. He was reputed to be on up to £150k, so £80k does not look very attractive. Many of us would also lose some of that compensation in lawyer’s fees (say £15 to £20k for a two-day Tribunal) but he may have the benefit of representation costs covered by a professional body.

He may also have a claim for wrongful dismissal if, for instance, the FA were in breach of a contractual disciplinary procedure, or did not give him his contractual notice. For this, his compensation would be capped at £25k in a Tribunal.

He apparently had two years to run on his contract, so there may be other contractual breaches which he could choose to pursue in a High Court, which would overcome the £25k cap in a Tribunal.

What’s he likely to do?

The FA and Sampson’s lawyers are probably talking.

If settlement negotiations have not already started or even concluded, Sampson has 3 months to go to an Employment Tribunal and six years to a High Court. He may well feel that his career in football in the UK is finished, and therefore the FA has much more to lose from protracted Tribunal or Court action.

So, if behind the scenes negotiations don’t go in his favour, litigation could proceed as a tactic for extracting more out of the FA, because of the potential for negative PR, than he would otherwise get from a Tribunal or Court.

It is likely to be a test of nerves, unless his lawyers can come up with something else such as discrimination. This would open the possibility of a claim for lifetime loss of earnings.

Perhaps, something to do with a Welshman managing an England team, but that’s another story!

My own view – it won’t get to Court, but I said that about the aforementioned Chelsea affair and it ran for two days in a Tribunal before they settled!

Ken Allison | 27 September 2017 | Paradigm Partners |

Ken Allison is an engaging trainer and speaker who manages to make his topics, on handling employment law related people issues and other HR stuff, highly interactive, challenging, entertaining, and above all, relevant to the 21st Century executive. Ken uses his understanding of managing businesses to show managers what they ‘can do’ rather than what they ‘cannot do’.

Through his firm’s ‘ExecutiveHR’ service, Ken also provides telephone based support services to businesses throughout the UK.

This blog is not a substitute for taking legal advice!

How to deal with a poor performer in 50 tweets…Part 4

These are the final tweets in this series of 50, and deal with how to short circuit a performance procedure where the parties are prepared to agree to a mutually acceptable alternative.

Part 1 in this series of tweets dealt with some informal motivational tips, and Parts 2 and 3 covered a typical formal procedure.

Since many people do not want a dismissal for poor performance on their record, they often leave before any procedure is complete, but in some instances, particularly in small organisations, it may be in the interests of the organisation to encourage them to leave more quickly.

In legal terms this is not risk free, so, ‘don’t try this at home’ without HR or other appropriate professional assistance!

UK law currently provides for disputes between employers and their staff to be resolved using a ‘settlement agreement’.

They are ideal for situations where an employment relationship is not working out due to conduct or performance, but may not be suitable for more complex issues, for instance, where there are discrimination or ‘whistleblowing’ issues involved.

We have seen earlier in this series that everyone has the right not to be unfairly dismissed providing they have been employed for the ‘qualifying period’ (two years).

Put simply, this means that you must have a fair reason for dismissing someone (and poor performance usually is regarded as fair) and you must behave reasonably, i.e. follow a fair procedure, such as is outlined in Parts 2 and 3 of this series, when you dismiss them.

There are circumstances where the length of time this will take is unacceptable from a business point of view, and circumstances where the procedure will be undesirable from the employee’s perspective.

For instance, an employee with long and loyal service may no longer be performing adequately, and it may be more appropriate to find a solution that enables them to leave with some dignity and without having to be put through an elongated process.

It’s only really safe to do this when you are contemplating dismissing someone.  If the lack of performance is genuine and you have got as far as Stage 3 in our procedure, there may be little point in not simply completing the process.

In many instances, employers want to offer staff an alternative route out of the organisation at an early stage rather than start a lengthy procedure – often performance related procedures can take up to three months.

Here’s a series of steps which might lead to an alternative mutually acceptable solution, but remember, don’t do this without appropriate advice from an HR professional or lawyer.

Tweet 37/50: Discuss your performance concerns with the employee and tell them that you intend to start a disciplinary or capability process which would usually begin with a hearing and could lead to them getting a warning.

Tweet 38/50: Tell them they will be given the opportunity to improve, but if they cannot improve after being warned, it may lead to their dismissal.

Tweet 39/50: Indicate that if they would prefer to have a ‘without prejudice’ (wp) conversation regarding a mutually acceptable alternative termination arrangement, then you would be happy to have that conversation.

Tweet 40/50: Give them time to think about the situation if they need it.

Tweet 41/50: If they agree to proceed on a wp basis there and then, you can proceed but take the precaution of having another senior person present to ensure that there is no subsequent argument as to the nature and content of the discussion.

Tweet 42/50: Emphasise that you would be happy to give them the opportunity to improve, but if they don’t think they can, or they don’t want to go through a series of warnings, you are happy to propose an alternative.

Tweet 43/50: Indicate that an alternative approach would involve them signing a settlement agreement.  This would prevent them from bringing claims against the organisation in the future, but in return for this they would receive an ex-gratia payment.

Ex-gratia payments are not always made, but are usual.  There may be some circumstances where it is simply agreed that the individual departs with pay in lieu of notice.  This may be the case, for instance, where the person’s performance is bordering on negligence, and they are fortunate to be given the opportunity to leave without a dismissal for poor performance on their record.

Tweet 44/50: Make a proposal with regard to the ex-gratia payment.  You may have some negotiation about this and other issues such as notice payments and outstanding holidays etc.  Any settlement above their contractual rights would normally be tax free for the first £30k.

Tweet 45/50: If they do not want to go down this route immediately, you should proceed with the invitation to the disciplinary/capability hearing, but verbally indicate that the offer of a wp discussion (or the offer if you have got as far as making one) is on the table for a few days.

Tweet 46/50: If the offer is not accepted, have your hearing and if justified issue a warning (or dismissal if you are at that stage) in line with your contract/staff handbook, or follow the procedure outlined in Parts 2 and 3 of this series.

Tweet 47/50: There is nothing to stop you leaving the door open on the wp conversation, regardless of the fact that you are commencing with the disciplinary/performance procedure.  But don’t leave it indefinitely; they’ll be little to gain from reaching an agreement after you have expended your time and energy on a fair process – assuming that there are not other issues such as discrimination or ‘automatically unfair dismissal’ involved.

Tweet 48/50: As ever, you should draft written notes of any meetings, and mark all correspondence based on the wp discussions as ‘Without prejudice and subject to contract save to costs’.

Tweet 49/50: If they do agree to a deal, you will need to confirm the details in writing, and arrange for a settlement agreement to be sent to them.

Tweet 50/50: You will have your own, and it is normal to make a contribution to their, legal costs.  Their solicitor may well come back to you on details of the proposed agreement, but after agreement is reached it will be for you (or your representative) to finalise the settlement agreement and send it to the employee for signature.

Tweet 44/50 may take a few meetings, and it is quite normal in these circumstances to agree a mutually acceptable termination date, and for the person to leave before the agreement is signed.

In this series of 50 tweets we have suggested informal, formal and alternative approaches to dealing with a poor performer.

The various steps should be seen as a model/sample approach, which cannot in any way be taken as a substitute for seeking professional advice on any particular situation.

The approach is offered as a way of encouraging the tackling of performance problems in the workplace, and to give managers confidence to initiate conversations about their concerns.

Above all, it should be remembered that prevention is better than cure, but poor performance can be an infectious disease that should not be allowed to spread!

Ken Allison | 02 November 2020 | Paradigm Partners |

Ken Allison is an engaging trainer and speaker who manages to make his topics, on handling employment law related people issues and other HR stuff, highly interactive, challenging, entertaining, and above all, relevant to the 21st Century executive. Ken uses his understanding of managing businesses to show managers what they ‘can do’ rather than what they ‘cannot do’.

Through his firm’s ‘ExecutiveHR’ service, Ken also provides telephone based support services to businesses throughout the UK.

This blog is not a substitute for taking legal advice!

The end of compromise agreements!

This blog (originally published in July 2014) is being reposted following our WordPress account being hacked, resulting in the loss of all our blogs prior to June 2017.

July 29th sees the demise of the compromise agreement, but don’t panic, they are simply being renamed ‘settlement agreements’.

Over recent months we’ve had a lot of questions on our helpline or at training events and presentations about this much-heralded change.

It was forecast to be implemented in ‘late summer’, so obviously the Department for Business Innovation & Skills knows something about how long this hot spell is going to last. To my surprise they announced about a week ago, that late summer was going to be 29th July.

A key question on some people’s minds has been whether it has been worth putting off a discussion which may lead to a termination of employment until the changes take place.

The answer to this question has been, that not a lot is changing, so that in many cases it has not been worth waiting. The change does, however, make a difference to the part of the process that most employers find difficult, namely, initiating the conversation.

Up until now, it has been necessary to have a ‘without prejudice’ conversation, and strictly speaking these are only possible where there is an existing dispute between the parties.

Exceptions to this requirement include straightforward dismissals of employees who have not accrued the qualifying service for an unfair dismissal claim (see how to handle these situations) or situations where an employer is making a settlement payment that is sufficiently generous to prevent a Tribunal claim.

If conversations are genuinely without prejudice, then they usually cannot be quoted in Court or at a Tribunal.

As of 29th July, providing there is no improper behaviour (such as a threat to dismiss if you don’t agree) an offer to end an employment relationship on agreed terms will not be quotable in an unfair dismissal claim.

This should mean that it will be possible to have a more straightforward conversation without the ‘war dance’ of ensuring that it is ‘without prejudice’. This, in turn should prevent aggrieved employees resigning and claiming constructive dismissal, which has been the main fear in the past.

‘Things are not working out, so I’d like to discuss a deal with you that would enable you to leave if you wanted to with a settlement payment’ should be become possible.

So, is it really becoming much simpler? I’m afraid the answer is probably no – there are still issues to look out for:-

1. All the other conditions that we associate with compromise agreements remain the same for settlement agreements. Principally, the final agreement has to be in writing, and the employee has to have legal advice from an approved person (usually a lawyer).

So agreements of this nature are not likely to become less costly to implement, which was one of the hopes when the Government first announced these proposals.

2. Discussions will still be quotable (unless they comply with the terms of being ‘without prejudice’) where dismissal has already taken place, or where there is discrimination, automatic dismissal or ‘whistleblowing’ involved.

3. The new Acas Code of Practice on Settlement Agreements suggests that employees should be given at least 10 days to consider an offer. To give less, may constitute ‘improper behaviour’.

4. The ACAS code recommends (although it does not require) that companions should be allowed to attend pre-termination negotiations.

We will have to see how all this works out in practice, and in order to avoid being an early case in front of a Tribunal, many employers will probably prefer to stick with trying to ensure that a conversation is properly ‘without prejudice’.

There is currently very little case law about ‘without prejudice’ discussions in straightforward terminations which are genuinely to do with poor performance, conduct, attendance, or issues such as relationship breakdowns.

This suggests that initiating conversations are not as difficult as is imagined. It is therefore likely that the main impact of this change will be in changing employer confidence, and so issues may be tackled more directly rather than being avoided.

Together with other 29th July changes such as the introduction of Tribunal fees (subject to the judicial reviews being sort by Unison and others), and the capping of unfair dismissal awards to the greater of a year’s salary or £78,600, we may see greater confidence to tackle issues, and less Tribunal claims.

We shall see!

Ken Allison | 27 September 2017 | Paradigm Partners |

Ken Allison is an engaging trainer and speaker who manages to make his topics, on handling employment law related people issues and other HR stuff, highly interactive, challenging, entertaining, and above all, relevant to the 21st Century executive. Ken uses his understanding of managing businesses to show managers what they ‘can do’ rather than what they ‘cannot do’.

Through his firm’s ‘ExecutiveHR’ service, Ken also provides telephone based support services to businesses throughout the UK.

This blog is not a substitute for taking legal advice!