# Questions on TUPE rights.



## maomao (May 5, 2014)

I always start threads by trying to explain everything in the OP and then having to answer it again because my OP is too dense and boring to take in in one go. So suffice it to say the company I worked for happily for nearly 7 years has been bought out by a much larger company and I and several of my colleagues are very unhappy. I was TUPE rep and they seemed to be following the law to the letter so I had little to negotiate but a couple of questions that have arisen are:

What duty does the new employer have to provide training. A lot of us have been left alone at desks with no little or no training in their system (in one case not even a log in) and thus little to do but stare at a computer screen for hours on end. It's extremely frustrating and one of us has walked out already while another is off with stress already. What chance of a constructive dismissal claim would there be for anyone who resigned from such a situation?

What right do we have to demand redundancy on the basis that our new positions, whole job title and salary haven't changed, are very very different from what we're used to. I used to run a department and now I'm basically sat with 40 other people answering a query line. I really would take redundancy if I could get it but I'm loathe to walk out penniless.


----------



## equationgirl (May 5, 2014)

Paging cesare


----------



## MrSki (May 5, 2014)

Are you in a union? That would be the best place to start. That is why you pay your fees.


----------



## maomao (May 5, 2014)

MrSki said:


> Are you in a union? That would be the best place to start. That is why you pay your fees.


Nope. Had just got two colleagues to agree to join the CWU with me and we were all 'getting round to it' when the shit hit the fan.


----------



## maomao (May 5, 2014)

DP


----------



## cesare (May 5, 2014)

Before the transfer date, your old company should requested from the new one (or they may have sent it without prompting) what's often called a "measures letter" which sets out the measures that the new company intend to take post transfer. It forms the basis of the pre-transfer consultation. As the TUPE rep, did you get to see it or were you made aware of what was in it?

Edit: the reason I ask is because (a) there may have been a failure to consult and inform, for which there are sanctions (when did the transfer take place?) and (b) if they didn't tell you what to expect during the consultation process, or matters are very different now and it was misrepresented - then this might help any recourse you have.


----------



## Manter (May 5, 2014)

If your employment conditions are significantly worse you can object to the transfer, or resign and claim unfair dismissal. However, and it's a big however, TUPE is a dog's dinner of a piece of legislation, with more holes than your average sieve, so it's very difficult to get claims to stick. If you're not in a union, have an initial chat with an employment lawyer (will cost you, but less than £100 and they'll be very honest about your options). Alternatively, if you can hang on in there, there will probably be a restructure along in the next few  months; it takes c 3 months to complete the critical post merger/takeover legal and financial stuff, then management attention will turn to what the new organisation will look like. That's what you need to know to know if you have a reasonable future there.


----------



## MrSki (May 5, 2014)

maomao said:


> Nope. Had just got two colleagues to agree to join the CWU with me and we were all 'getting round to it' when the shit hit the fan.


Is there a chance you can now join the CWU ? If so I am sure they would be happy to take on the case and would probably be experienced in such takeovers. TUPE rules need someone who knows their shit & have changed so much I would not won't to rely on past cases. Unions have lawyers paid to represent their members & TUPE should be their bread & butter.

Sorry not to be of more help but there is no point going on about what used to be.


----------



## Puddy_Tat (May 5, 2014)

Disconnected thoughts - 

First off, 

The path to 'constructive dismissal' is not all that easy, and should be handled with care and qualified advice.  My understanding is that you have to show that you have at least tried to resolve the matter through the grievance procedure before you quit, even if you get told to sod off (I think that being told to sod off would probably assist your case.)   Also bear in mind that there are now fees for bringing some forms of unfair dismissal claim.

And that if you resign, the dole are likely to regard you as 'voluntarily unemployed.'

I don't think there's a specific duty to provide training, but it seems bloody daft if they are just expecting you to use new employer's systems with no training (or no login details.)  Is this just cluelessness on their part?  Or are they hoping you will quit?  Or planning to bring disciplinaries because you're not doing the job?  Have you made a fuss about this?  Legally, this might come under the implied duty of 'mutual trust and confidence' 

Or is there (as someone has suggested) a reorganisation coming up soon?  I'm not sure where the new employer would stand legally if they tried to reorganise a bunch of TUPEd employees into redundancy (which might be what they are aiming at.)   I think they would be on thin ice if they did.  From the research I have done on TUPE, some people talk about any protection lasting for one year - I can't find any actual statute for this, so not convinced it holds water.

Likewise, I'm not convinced there's a right to 'demand redundancy' here - presume you're getting the same pay / T&C as before, and would the change to duties be sufficiently drastic to count as a whole new job?  And does your contract include an "any other duties we think up" sort of clause?

I think qualified advice is the way forward.  I'd suggest a chat with the people at ACAS helpline (it's free and anonymous) 

I also don't want to be a wet blanket, but not sure how much help (with this issue) joining a union now will be.  Some unions have 'qualifying periods' before they will get too involved, and many have a rule that they won't provide representation about an issue that started before you joined (you wouldn't get car insurance if you only rang up to arrange it after you'd had a prang) - they may however be prepared to offer advice if not full representation, though.

I'd still suggest joining ready for the next shit-storm, as I can't help thinking there will be one...

Best of luck.

(all above subject to the disclaimer that i'm not a lawyer, HR expert or trade union rep - I've been TUPEd once and came close another time though)


----------



## cesare (May 6, 2014)

There's no time limitation on TUPE protection although as time goes on, it's less easy to make out a case that a dismissal is a direct result of the transfer (and not for an ETO reason) and is therefore unfair. There's no basis for one year, in the same way there's no basis for the other urban myth relating to redundancy replacements within 6 months.


----------



## equationgirl (May 6, 2014)

What cesare says. I'm very very rusty on TUPE these days but the broad rule of thumb I was told when it happened to me was exactly as cesare described - that the further away from the date of TUPE transfer the less easy it is to make a case that the dismissal is a direct result of the transfer (and not for an ETO - economic, technical or organisational - reason).

I also echo Puddy_Tat's advice to join a union now, especially if you have exceptional or non-straightforward circumstances (as you have alluded to in other threads).


----------



## Spanky Longhorn (May 8, 2014)

Er does TUPE actually apply in this case?

It's not clear from the first post - have you actually transferred to a new employer or is it that your employer still exists but has simply changed hands?

To put it another way were you working for ACME and are you now working for Vulture - or is it that ACME is now owned by Vulture? the first would be covered by TUPE the second wouldn't. (imo)

I would advise you to join the relevant union - although they may be cagey about what protection they can offer for stuff that has already happened (because obviously they can't afford to protect people who only join once an issue has happened) but they may see it as an 'organising' opportunity so be prepared and able to work for you. 

What union is best depends not just on the type of workplace but the industry so a call centre could be CWU or Connect/Prospect but equally could be covered by USDAW, Unison, Unite or GMB depending on the industry.

You could also contact solfed.org.uk who are very good with smaller employers if you're up for doing a lot of work yourselves and are in the right city.

You can't always rely on employment lawyers ime - if you are going to go direct then check out Thompsons or Browell Smith & Co


----------



## maomao (May 8, 2014)

Sorry I didn't come back to this thread, basically too depressed to think about it.The training issue seems to have been sorted out a bit. The employee who was off with stress was phoned and told she'd be better taken care of if she went back. Other employees have been given better training since. The guy who walked out has lost his job though.

I'm actually off work too and was when I started the thread. I have arthritis in my neck and back and have had a very bad episode which I blame on their seating arrangements. I told them I had arthritis when I filled out the new employee form, I told them the desk was unsuitable on my first day (I'm 6 and a half foot tall, the top of the screen is below chin height) and lo and behold 4 days later I could barely move my neck and was in a fuckload of pain. Spent a week totally monged on tramadol which I've stopped now. I have a doctors note till the 12th and my next shift starts on the 17th which is a Saturday so new seating arrangements will not have been made because the occupational health person won't be in till Monday. Scared to make too much of a fuss with HR because it looks like I basically need this job to live. 5 years ago I could have walked into a job in ten different companies in London but they've all either gone bust or been bought out by my current employer. The one or two that remain are too far too travel (I live in Romford now, the only companies I know likely to be interested are in Isleworth, Richmond or further, minimum 2 hours travel).

Previously I wasn't to stuck to my seat so I could get up and stretch, go and supervise other people's work, wander around as I liked but now I'm expected to sit in front of a computer and not move. I was actually shouted at by a supervisor for going to talk to an ex colleague who'd been left there with nothing to do and no training. Just totally disgusted by this company. If I mentioned the name every Londoner would know them. In fact if I was specific about what business I'm in it would be immediately obvious which is why I'm being a little cagey.



Spanky Longhorn said:


> It's not clear from the first post - have you actually transferred to a new employer or is it that your employer still exists but has simply changed hands?


Transferred to a new employer. From a happy office of a few people who I'd known for years to a chicken shed based on a design for a Victorian workhouse full of casual racists and bullies.

I'm just depressed as fuck right now. Don't think I've got any legal comeback except just maybe a personal injury claim which seeing as I have arthritis anyway probably wouldn't add up to much.


----------



## StoneRoad (May 8, 2014)

I think that a word or three with ACAS or perhaps CAB would help. IMO the TUPE should apply.

(I've been TUPEd at least twice; the last time I took gardening leave / redundancy as our office was closed at the first chance the new employer could swindle under the pretext of re-organising the staff with the *offer* of relocating 300+ miles to London for less pay and no help with costs !)


----------



## maomao (May 8, 2014)

StoneRoad said:


> I think that a word or three with ACAS or perhaps CAB would help. IMO the TUPE should apply.
> 
> (I've been TUPEd at least twice; the last time I took gardening leave / redundancy as our office was closed at the first chance the new employer could swindle under the pretext of re-organising the staff with the *offer* of relocating 300+ miles to London for less pay and no help with costs !)


Thing is they've already done everything by the book. They moved us in week one as our previous employer hadn't paid the rent for a few months. The administration period basically fucked our business to the point that there was nothing much left preserving and now the company name doesn't even exist. I may not have had a single share in the business but I was there from the very beginning and just feel like I've had my hard work shat on and thrown away. It was a good little business, operating in profit but very bad financial management fucked it all up.


----------



## StoneRoad (May 8, 2014)

I really feel for you, maomao, that is a horrible situation to be in. 
However, as the details of your job are very different and if the new employer is not providing proper training then they are not doing things by the book, IMO you've grounds to ask for a severance package. (I would ask ACAS for advice)


----------



## equationgirl (May 9, 2014)

maomao said:


> Thing is they've already done everything by the book. They moved us in week one as our previous employer hadn't paid the rent for a few months. The administration period basically fucked our business to the point that there was nothing much left preserving and now the company name doesn't even exist. I may not have had a single share in the business but I was there from the very beginning and just feel like I've had my hard work shat on and thrown away. It was a good little business, operating in profit but very bad financial management fucked it all up.


Have they though? If you notified them of your disability - any medical condition expected to last more than 12 months counts as a disability for the purposes of the Equality Act 2010 - then they have a legal obligation to make 'reasonable adjustments' to facilitate your working, which could be for example, a desk and chair to accommodate your limited mobility. If their standard office chair is one of those awful crappy ones then they should provide a suitable back chair with additional support and padding and a desk which allows your ergonomic arrangement of PC etc to be correct for your height. 

For the purposes of sickness absence management current best practice is to disregard any sick time taken that is directly related to your disability in applying any points (e.g. Bradford factor). Non-disability related absence, for example if you had tonsillitis, would be counted.

They should have a policy on equality or disabled employees so get a copy of it and read it through. If they don't then that's shockingly bad.


----------



## maomao (May 9, 2014)

equationgirl said:


> Have they though? If you notified them of your disability - any medical condition expected to last more than 12 months counts as a disability for the purposes of the Equality Act 2010 - then they have a legal obligation to make 'reasonable adjustments' to facilitate your working, which could be for example, a desk and chair to accommodate your limited mobility. If their standard office chair is one of those awful crappy ones then they should provide a suitable back chair with additional support and padding and a desk which allows your ergonomic arrangement of PC etc to be correct for your height.
> 
> For the purposes of sickness absence management current best practice is to disregard any sick time taken that is directly related to your disability in applying any points (e.g. Bradford factor). Non-disability related absence, for example if you had tonsillitis, would be counted.
> 
> They should have a policy on equality or disabled employees so get a copy of it and read it through. If they don't then that's shockingly bad.



The chairs aren't so bad, they're fully adjustable, but the desk is shocking. The screens are locked together with a top bar so they can't be adjusted at all and there's absolutely no room for lateral or forward/back movement without crashing into other employees. Which means I'm stuck in a permanent half kneeling bent over position.

Thanks for the advice. I will hopefully be having a meeting with HR very soon after I get back and need to make it clear that my arthritis is a serious problem. I'm really torn as to whether to try and make a go of it or not. I've promised the mrs that I'll get on with it while I look for another job and I asked her to do something very similar 2-3 years ago (and she did find another, better, job) so I kind of really have to. However it means I'll lose out on any possible severance deal so I'm not sure it's financially the best decision. 2 weeks ago I thought I had a very good chance of another job to go to but that is looking more and more unlikely.


----------



## cesare (May 9, 2014)

maomao The workstation ergonomics is a Health & Safety issue. What should have happened when all the TUPEd employees relocated - and from a H&S point of view - was risk assessments. Because of the nature of the job I imagine that the main risks are musculoskeletal problems arising from poorly set up work stations combined with extended periods of time with limited movement. That's just a guess though ... what should have happened - should still happen - is a proper risk assessment. This isn't just an elf n safety gorn mad thing, it's properly necessary. One of the questions to ask HR is if there's a H&S rep and if not, who is responsible for H&S in the workplace (it might be them).

The priority is to get a risk assessment done on your work station and if there's no employer-led way of doing that, to do it yourself. I can email you a risk assessment form and instructions if you need them as I'm sure loads of other people on urban can do.

You also need to put this in the accident book so there's a proper record of it. And presumably there'll be a return to work interview where you can explain the adverse effect of the workstation on your existing condition. They have to do something about this as part of their duty of care.

TUPE wise, when did the transfers take place?


----------



## Spanky Longhorn (May 9, 2014)

Thanks for the further answers - sorry to hear what a shit situation it is. 

One more TUPE question from me - have the employees in the old company been kept together working at a discreet set of work the same as or similar to what you used to do, or have you been dispersed among the new company to be part of the general staff? Because if it is the second option I think it could be argued that TUPE doesn't apply, althogh this is from memory of a transfer I dealt with about 3 years ago...

It sounds to me like H&S could be a good route to go down, I would say you should join a union even if only as an individual 

check out the TUC's worksmart website or email them direct and they will tell you the best union to join 

http://www.worksmart.org.uk/unionfinder/browse.php?pg=index

it's also worth googling Equality Act 2010 and HASAWA 1974


----------



## cesare (May 9, 2014)

maomao Here's the HSE's updated DSE guidance: http://www.hse.gov.uk/pubns/priced/l26.pdf


----------



## maomao (May 9, 2014)

cesare said:


> maomao The workstation ergonomics is a Health & Safety issue. What should have happened when all the TUPEd employees relocated - and from a H&S point of view - was risk assessments. Because of the nature of the job I imagine that the main risks are musculoskeletal problems arising from poorly set up work stations combined with extended periods of time with limited movement. That's just a guess though ... what should have happened - should still happen - is a proper risk assessment. This isn't just an elf n safety gorn mad thing, it's properly necessary. One of the questions to ask HR is if there's a H&S rep and if not, who is responsible for H&S in the workplace (it might be them).
> 
> The priority is to get a risk assessment done on your work station and if there's no employer-led way of doing that, to do it yourself. I can email you a risk assessment form and instructions if you need them as I'm sure loads of other people on urban can do.



They do have an H&S person who came and had a quick look at me when I was in a different seat (same type of desk but with a lot more lateral movement and no-one directly behind)! She stayed about 2 minutes, didn't measure anything or make any suggestions and then my supervisor told me about 2 hours later that they wouldn't be doing anything. Since I went sick HR have told me that they will try and arrange a suitable workstation when I get back and my experience so far is that HR is the best organised and most professional department in the place so I expect it to get done. I'm more worried about time scale. My next shift starts on a Saturday and HR won't be there so I'll probably just get told to get on with it.



> You also need to put this in the accident book so there's a proper record of it. And presumably there'll be a return to work interview where you can explain the adverse effect of the workstation on your existing condition. They have to do something about this as part of their duty of care.



I'm expecting to hear from HR today because I sent in my sick note (fit note) by email yesterday. The doctor has noted on the fit note that the employer has a duty not to exacerbate existing medical conditions. If I don't then I will email them Monday asking for a meeting next week before I actually go back. I will make sure it goes in the accident book. They're quite good at formalities, even if their operations room is like something out of Life On Mars, so I'm sure they will be able to fill out a risk assessment. I'll make sure they do so though.



> TUPE wise, when did the transfers take place?



Bought out on the 10th of April, staff were moved to new office (less than 2 miles away) on the 15th, I was on leave till the 21st anyway. I only worked there 4 days before going sick.


----------



## cesare (May 9, 2014)

maomao It's helpful that your GP has expressly stated that on your fit note too. From what you've said about the HR department, it might be worth ringing/going to see them before you go back (as you say) so you can explain your concerns about the timescale. If they have any sense they'll make temporary arrangements so that your condition isn't exacerbated until a more permanent solution can be sorted. I'd get quite familiar with that HSE guidance too, if I were in your position. Having a better understanding of what the H&S requirements are puts you in a stronger position to get what you need plus you have an extra level of protection against unfair dismissal when the issue is H&S related.

TUPE wise this is all quite recent, so it might be worth flagging this to HR too because their antenna will start twitching  At the moment I'd be talking about "well this isn't what was set out during the consultation process" (if it wasn't) ... no need to go as far as saying you would have objected and not transferred of course, but see how they react.


----------



## maomao (May 9, 2014)

Spanky Longhorn said:


> Thanks for the further answers - sorry to hear what a shit situation it is.
> 
> One more TUPE question from me - have the employees in the old company been kept together working at a discreet set of work the same as or similar to what you used to do, or have you been dispersed among the new company to be part of the general staff? Because if it is the second option I think it could be argued that TUPE doesn't apply, although this is from memory of a transfer I dealt with about 3 years ago...



Very complicated situation. We were actually absorbed by a smaller company within the big company. Our admin staff are in the smaller company's office which is a separate building on the same street. Other departments have been scattered across a fairly large complex, so the fleet department work within the office of the main company but deal with the vehicles specific to the smaller company (we were in environmentally friendly transport, the sub-company is also supposedly environmentally friendly). The sales guys sell the environmentally friendly service but based in the main office.

I'm in operations and used to have manager in my title (though not on my contract or in any written job description). Though very much middle-lower management I did basically run the operations room and was in charge of the operations team so I had a lot of IT stuff to do as well as getting involved in recruitment, training, organising shifts, holidays, cover etc. They run both companies from the same operations room so I'm on the desk of the smaller company and have been told I work for them. My payslip has the name of the smaller company and my bank statement shows the name of the  main company. However, a large part of my job is now done by computer and we're just there to keep an eye on it as well as answer the phones to deal with queries. The phone comes to my desk first if it's to do with the smaller company's business but it overflows in both directions so we all end up doing the same job.




> It sounds to me like H&S could be a good route to go down, I would say you should join a union even if only as an individual
> 
> check out the TUC's worksmart website or email them direct and they will tell you the best union to join
> 
> ...



Going to get stuck into this on Monday. We'd just moved house when this all happened and we're still sitting in a house surrounded by cardboard boxes because I haven't been up to moving stuff around. Promised mrs maomao I would make the place a bit more liveable for the weekend (which I could do with as well, it's not helping with the depression).


----------



## Spanky Longhorn (May 9, 2014)

Hmm reading between the lines I can possibly guess who the larger company are.

I think as far as unions go Unite are probably the best, I will PM you an email address for one of their regional officers who may be able to point you to someone who has already dealt with them... (assuming they have at least a few individual members there...)

I wouldn't want to comment further on the TUPE stuff as I think you would need seek the advice of someone you can send all the related documentation to. TUPE is very easy to get wrong!


----------



## maomao (May 9, 2014)

Spanky Longhorn said:


> Hmm reading between the lines I can possibly guess who the larger company are.



Pretty obvious but their IT department is very very clued up and would rather not have this show up in any searches. I know you wouldn't but just for anyone else's benefit.


----------



## cesare (May 9, 2014)

maomao Something to bear in mind (depending on where you want to go with this) is that the terms and conditions of your employment are preserved by way of TUPE as I know you know - but those terms don't have to be limited to those written down. So when you say they've kept the actual contract terms and pay the same but the actual job is very different to the role that you had, the role that was preserved was the one that you were carrying out even if your written contract didn't set that out. If you can prove this eg witnesses, appraisals etc etc, you can try and argue that you've transferred from a managerial/supervisory role into one which isn't, and if they don't have that type of role then there's a redundancy situation. 

What they might have been solely relying on was the written employee liability information that has to be provided prior to transfer, and the unwritten nature of your role wouldn't necessarily have been flagged up that way. It should have been flagged up during consultation though ... anyway, it's not necessarily too late is what I'm saying. Depending on what you want out of this.


----------



## Puddy_Tat (May 9, 2014)

Sounds like the new employer has not heard of the DSE Regulations for computer users.  HSE guidance here.  They only came in to effect in 1993, so it's not surprising that some poor lambs among hard working bosses have not heard of them yet...  

As for changes to job / workplace etc, it's going to come down to what constitutes "reasonable" in law.  In many cases when there's TUPE, a change of workplace is involved.  From memory and subject to the disclaimers above, I think that expecting people to go to a new workplace a couple of miles away would be held to be "reasonable".  Expecting people to relocate a few hundred miles wouldn't be, and I think case law has held that it's less reasonable to expect (say) a part time cleaner on minimum wage to relocate, than a full time executive type on a big salary.  

I'd have thought that change to duties would be similar, but yes - 'custom and practice' can be part of the implied contract of employment, and also (if relevant) can policy documents and the like that in law become part of the employment contract even though they are a separate bit of paper.

Again, sounds like qualified advice is needed here.


----------



## maomao (May 9, 2014)

cesare said:


> maomao What they might have been solely relying on was the written employee liability information that has to be provided prior to transfer, and the unwritten nature of your role wouldn't necessarily have been flagged up that way. It should have been flagged up during consultation though ... anyway, it's not necessarily too late is what I'm saying. Depending on what you want out of this.



Part of the problem is I really don't know what I want out of this. I've been saying I want out of my industry for years but I had a speculative look around this week and the job market is making me feel like a bit of a dinosaur. I've always said I would never take a job in this company because I think they've done a lot of damage to the industry and the boss is a well known tory blowhard (again, no names please). But beggars can't be choosers, I'm starting to think I should just knuckle down and get on with it.


----------



## cesare (May 9, 2014)

maomao said:


> Part of the problem is I really don't know what I want out of this. I've been saying I want out of my industry for years but I had a speculative look around this week and the job market is making me feel like a bit of a dinosaur. I've always said I would never take a job in this company because I think they've done a lot of damage to the industry and the boss is a well known tory blowhard (again, no names please). But beggars can't be choosers, I'm starting to think I should just knuckle down and get on with it.


It's a difficult situation to be in. On the bright side (such as it is) you've got a bit of time here because the transfers were relatively recent. Once you get the workstation ergonomics sorted out (your health being the priority) you can take a bit of time to see whether or not you're going to find it possible to get used to the very different working environment. The time frame to link the role before with the role after, together with lack of consultation in order to construct a redundancy argument is 3 months from the date of transfer. So there's a bit of leeway to see whether it's possible and preferable to knuckle down and get on with it. I hope it works out for you, whatever you decide.


----------



## equationgirl (May 9, 2014)

maomao I don't know if you've done this already but Acas offer a free helpline:

Either online - http://www.acas.org.uk/index.aspx?articleid=4489

Or by phone - 0300 123 1100


----------



## maomao (May 12, 2014)

I have a meeting with HR and the big manager of my department tomorrow. Sent them a brief (for me lol) email regarding health issues, dissatisfaction with current job role and mentioning borderline bullying and racist behaviour in their office. HR are acting ultra reasonable, they are the most professional seeming department in the building. I know the manager from way back at another company (though he only vaguely remembers me which should give me the advantage) and he's a very wily fellow, has a reputation as hard but fair. I've been reading a lot and am pretty sure where I stand as regards redundancy and health issues. Going to non aggressively push for a decent redundancy package.

I'm mentioning the racism purely because I found it unacceptable myself. I had to listen to a tirade about 'Chinese cunts' complete with fingers pulling out eyelids and stupid accents from another employee. Maybe he wouldn't have done it if he knew my wife was Chinese but I don't really care, he's a cunt. I didn't have the energy or the confidence to lay into him at the time, it was my 3rd day in a new office. I've been asked not to name names in the other incident involving a black member of staff from my previous company but I'll outline it too because even though it wasn't particularly strong it came from a supervisor and was just plain bullying in my opinion.


----------



## equationgirl (May 12, 2014)

maomao said:


> I have a meeting with HR and the big manager of my department tomorrow. Sent them a brief (for me lol) email regarding health issues, dissatisfaction with current job role and mentioning borderline bullying and racist behaviour in their office. HR are acting ultra reasonable, they are the most professional seeming department in the building. I know the manager from way back at another company (though he only vaguely remembers me which should give me the advantage) and he's a very wily fellow, has a reputation as hard but fair. I've been reading a lot and am pretty sure where I stand as regards redundancy and health issues. Going to non aggressively push for a decent redundancy package.
> 
> I'm mentioning the racism purely because I found it unacceptable myself. I had to listen to a tirade about 'Chinese cunts' complete with fingers pulling out eyelids and stupid accents from another employee. Maybe he wouldn't have done it if he knew my wife was Chinese but I don't really care, he's a cunt. I didn't have the energy or the confidence to lay into him at the time, it was my 3rd day in a new office. I've been asked not to name names in the other incident involving a black member of staff from my previous company but I'll outline it too because even though it wasn't particularly strong it came from a supervisor and was just plain bullying in my opinion.


It's immaterial whether he knew your wife was Chinese or not - what he did was just plain offensive regardless. Definitely report that. I would and I have no Chinese relations-in-law. 

Remember to stick to the facts, be as neutral as possible (difficult in an emotionally charged situation I know) and keep any statements about feelings as brief as possible e.g. 'How did the incident involving racism make you feel?' 'I felt it was incredibly offensive, inappropriate and unprofessional'.

Take a copy of the email with you. Best of luck for tomorrow, let us know you get on if possible.


----------



## Puddy_Tat (May 12, 2014)

maomao said:


> I have a meeting with HR and the big manager of my department tomorrow. Sent them a brief (for me lol) email regarding health issues, dissatisfaction with current job role and mentioning borderline bullying and racist behaviour in their office. HR are acting ultra reasonable, they are the most professional seeming department in the building. I know the manager from way back at another company (though he only vaguely remembers me which should give me the advantage) and he's a very wily fellow, has a reputation as hard but fair. I've been reading a lot and am pretty sure where I stand as regards redundancy and health issues. Going to non aggressively push for a decent redundancy package.
> 
> I'm mentioning the racism purely because I found it unacceptable myself. I had to listen to a tirade about 'Chinese cunts' complete with fingers pulling out eyelids and stupid accents from another employee. Maybe he wouldn't have done it if he knew my wife was Chinese but I don't really care, he's a cunt. I didn't have the energy or the confidence to lay into him at the time, it was my 3rd day in a new office. I've been asked not to name names in the other incident involving a black member of staff from my previous company but I'll outline it too because even though it wasn't particularly strong it came from a supervisor and was just plain bullying in my opinion.



  

hope it goes well.

they sound a right shower of cunts.

the only possible pitfall i can see is that some organisations will, if they get someone who seems to be keen on redundancy, will try other means (that don't involve a payout) to get rid of said employee, be that a dodgy disciplinary or shoving them into an impossible job then either disciplining them for failing to do it, waiting for them to have a breakdown in health (then sacking them on health grounds) or hoping they will just quit.  One of my former employers was fairly good at this...

Although if you have a possible workplace bullying / racism claim to threaten them with, they may be more inclined to think about a redundancy deal or settlement / compromise agreement.  (if you're not aware, the latter is a specific legal term - page about it here.)


----------



## existentialist (May 12, 2014)

maomao said:


> Nope. Had just got two colleagues to agree to join the CWU with me and we were all 'getting round to it' when the shit hit the fan.


Several of my colleagues were at that "getting round tuit" stage when the manure/aircon interface scenario descended here. Having been assured that the union would support them, they got round to it. Unions can be quite flexible on these matters.


----------



## maomao (May 13, 2014)

Puddy_Tat said:


> hope it goes well.
> 
> they sound a right shower of cunts.
> 
> ...


I think the worst that could happen is they could trick me into going back to work. Like I said, HR regard themselves as very professional and the reply suggests they intend to take the racism and bullying very seriously. She's also said that we can go to occupational health after the meeting to sort out better seating immediately so that I wouldn't be stuck in there for 2 days over the weekend making my neck worse again. They're definitely making all the right noises now. I'm not the best negotiator in the world so will just have to slow down and take it easy, no rash decisions.


----------



## maomao (May 13, 2014)

I feel like I've beaten up. Including a break it went on for 90 minutes. They are refusing redundancy on the basis that I knew what the job would be when I accepted it during 'the consultancy period' and that the management and supervisory elements of my job were not enough to constitute a substantially different position. They got quite aggressive about it, or at least the women from H.R. did. They both said 'why don't you just resign, why do we owe you anything?'. I honestly do believe that my job doesn't exist anymore and i'm entitled to this money to give myself time to get back on my feet. 

They took the racism complaint very seriously and have promised to deal with it. I'm confident that one of them (the Chinese one) will be deal with severely and the other one will be 'chatted' to and told to be careful. 

They've promised to make better seating arrangements but it's a bit academic really. 

The woman opposite me on the train now is talking loudly on her mobile about an almost identical problem.


----------



## cesare (May 13, 2014)

Is there a record of what was discussed during consultation?


----------



## maomao (May 13, 2014)

cesare said:


> Is there a record of what was discussed during consultation?


There's a form that I signed when it was blank to which they have added 'no complaints'. I was asked about my job role, gave my full job title, including the word manager, and said that there was a supervisory element. I was aware that I was essentially taking a demotion in terms of job content but at the time it was all very sudden and the question felt more like 'do you want to be able to pay the mortgage at the end of the month'. I was told I'd have an equivalent role. My manager's position is that I'm clever enough to have known exactly what the job I was being offered was. I was one of the TUPE reps and attended two meetings by phone but to be honest I was more thinking about my colleagues and checking that the letter of the law was being followed than I was about myself. At no time was I told that the decision as to my job role would be final and non-negotiable once accepted verbally. I also wasn't quite aware from my visit to the workplace on the day of the takeover a) how mind numbing and dull the job would be or b) that I would be devoid of status and get shouted at for being out of my seat. I'm used to a much more mobile office role.


----------



## cesare (May 13, 2014)

maomao said:


> There's a form that I signed when it was blank to which they have added 'no complaints'. I was asked about my job role, gave my full job title, including the word manager, and said that there was a supervisory element. I was aware that I was essentially taking a demotion in terms of job content but at the time it was all very sudden and the question felt more like 'do you want to be able to pay the mortgage at the end of the month'. I was told I'd have an equivalent role. My manager's position is that I'm clever enough to have known exactly what the job I was being offered was. I was one of the TUPE reps and attended two meetings by phone but to be honest I was more thinking about my colleagues and checking that the letter of the law was being followed than I was about myself. At no time was I told that the decision as to my job role would be final and non-negotiable once accepted verbally. I also wasn't quite aware from my visit to the workplace on the day of the takeover a) how mind numbing and dull the job would be or b) that I would be devoid of status and get shouted at for being out of my seat. I'm used to a much more mobile office role.



You need to argue that it's a material detriment and was misrepresented during consultation. Their response to that would probably be "well object/resign now then" and your response would be (a) that forcing you to resign over a substantial material detriment is constructive unfair dismissal, (b) there was insufficient information during the consultation process, (c) that if they don't have a role commensurate with what they led you to expect + what you were doing before, then it's a redundancy situation.

Of course they'll argue that it's not a material detriment, so you could point them in the direction of _Shamoon v Royal Ulster Constabulary_ (case ref 2003 IRLR 285 House of Lords) ie the test is whether the treatment is such that a reasonable worker would consider it to be to his or her detriment. In your case a reasonable worker would see the removal of managerial responsibilities that took up X amount of your time in your previous role, as a material detriment.


----------



## maomao (May 13, 2014)

cesare said:


> You need to argue that it's a material detriment and was misrepresented during consultation. Their response to that would probably be "well object/resign now then" and your response would be (a) that forcing you to resign over a substantial material detriment is constructive unfair dismissal, (b) there was insufficient information during the consultation process, (c) that if they don't have a role commensurate with what they led you to expect + what you were doing before, then it's a redundancy situation.
> 
> Of course they'll argue that it's not a material detriment, so you could point them in the direction of _Shamoon v Royal Ulster Constabulary_ (case ref 2003 IRLR 285 House of Lords) ie the test is whether the treatment is such that a reasonable worker would consider it to be to his or her detriment. In your case a reasonable worker would see the removal of managerial responsibilities that took up X amount of your time in your previous role, as a material detriment.



That is beautiful. Thank you. Just closes down that argument completely. Will have to explain it properly though, if you look it up on wikipedia it's written up as a sex discrimination case but lots of TUPE sites do refer to it in the sense you do.

My argument as to whether the consultation was final will rest on a question I asked during the second TUPE meeting on the phone where I did ask if notice periods would apply if an employee decided to resign after the move if they were unsatisfied with conditions. I don't remember the exact wording but was told that they would try to work with employees to find a resolution

I've asked my old ops manager to email them a description of what I actually did in my job. I've also told them that I will be emailing them substantial points that I feel need to be made in Friday's meeting shortly before the meeting as I feel the two on one situation today was a little heavy going.


----------



## cesare (May 13, 2014)

maomao said:


> That is beautiful. Thank you. Just closes down that argument completely. Will have to explain it properly though, if you look it up on wikipedia it's written up as a sex discrimination case but lots of TUPE sites do refer to it in the sense you do.
> 
> My argument as to whether the consultation was final will rest on a question I asked during the second TUPE meeting on the phone where I did ask if notice periods would apply if an employee decided to resign after the move if they were unsatisfied with conditions. I don't remember the exact wording but was told that they would try to work with employees to find a resolution
> 
> I've asked my old ops manager to email them a description of what I actually did in my job. I've also told them that I will be emailing them substantial points that I feel need to be made in Friday's meeting shortly before the meeting as I feel the two on one situation today was a little heavy going.


Yes, it was an SD case but is often cited when claiming material detriment in other contexts eg TUPE. You'll fine _Tapere_ useful too, here's an article: http://www.personneltoday.com/hr/tupe-transfer-tapere-v-south-london-and-maudsley-nhs-trust/

Good idea re getting your old manager to email them with what you actually did in your old job. As I said in a previous post, they might be relying a little too heavily on what was actually written down.


----------



## Puddy_Tat (May 13, 2014)

and very  at them making the suggestion you resign.

to me, that makes it sounds like that's what they are hoping for.

(being the sort of awkward sod i am, that is the kind of thing that makes me more determined to stay put, although in the long run it's probably not worth the effects on your health, sanity and future career prospects - although resigning without a job to go to is not good for your finances either.)

I think you need to get qualified advice on side soonest.

Was today's farce conducted under the grievance procedure?


----------



## maomao (May 13, 2014)

cesare said:


> maomao Something to bear in mind (depending on where you want to go with this) is that the terms and conditions of your employment are preserved by way of TUPE as I know you know - but those terms don't have to be limited to those written down. So when you say they've kept the actual contract terms and pay the same but the actual job is very different to the role that you had, the role that was preserved was the one that you were carrying out even if your written contract didn't set that out. If you can prove this eg witnesses, appraisals etc etc, you can try and argue that you've transferred from a managerial/supervisory role into one which isn't, and if they don't have that type of role then there's a redundancy situation.



Sorry to be a pain and quote a week old post but if there was a case or particular clause that proved this point off the top of your head it would be very helpful. They were oohing and aahing a lot about how I should have got a new contract when my job title changed.


----------



## maomao (May 13, 2014)

Puddy_Tat said:


> and very  at them making the suggestion you resign.
> 
> to me, that makes it sounds like that's what they are hoping for.
> 
> ...



I wasn't told which procedure it was conducted under.

I believe that actually their aggression was a positive thing, if I was being totally off the wall and unreasonable they would have just been dismissive rather than giving me an hour and a half with two senior managers. Plus I've heard their arguments and have 3 days to come up with an organised response.

My manager started asking me for a 'figure in my head' much to the HR managers chagrin. I think he would go for a compromise/settlement agreement. If I accept that I absolutely need it to say that I've been made redundant in case I do need to claim dole at any point. I told him that I wasn't there to claim 'an amount of money' but he could easily look up what I was due for redundancy with 6 years service and I'd be willing to make an agreement on those terms.

I'm planning to call ACAS for a chat on some finer points on Thursday, want to get it all written down and organised first and tomorrow is flat pack assembly day in my house.


----------



## maomao (May 13, 2014)

Just got this response back from HR to my earlier email:



> Hi ******,
> 
> Thanks for your email.
> 
> ...



It's quite encouraging that I've got her up till 10.30 at night worrying about it.  The ''libellous" comment is weird isn't it? It was a private meeting, not a published document.

My email said 'If it's going to be two against one again on Friday I would like to email a summary of my substantial points on Friday morning to ensure that they are heard properly. '

Problem is I really don't have a suitable colleague to take along. I'm the guy that other people take to disciplinaries etc.


----------



## cesare (May 13, 2014)

maomao said:


> Sorry to be a pain and quote a week old post but if there was a case or particular clause that proved this point off the top of your head it would be very helpful. They were oohing and aahing a lot about how I should have got a new contract when my job title changed.


They're right that the old employer should have changed your contract when your job title and role changed. However the reality is that it did change and you can show that it did. An employment tribunal would look beyond what the contract expressly sets out to what the reality is - obviously it helps if you can provide proof and your old manager emailing a description of your role will help this. HR people know this about employment contracts so don't let them distract you from the point by saying it should have been confirmed in writing - yes it should but that doesn't alter the fact that that was what your job was.


----------



## cesare (May 13, 2014)

maomao said:


> Just got this response back from HR to my earlier email:
> 
> 
> 
> ...


Libellous! Heh  

You see they've grasped the point about detriment and constructive dismissal. Now you just need to convince them that (a) it's a very different role and why, and (b) you feel it's a material detriment, and that's reasonable. Don't forget it's not just the role but also physical conditions that can build the picture of material detriment.


----------



## maomao (May 13, 2014)

cesare said:


> Libellous! Heh
> 
> You see they've grasped the point about detriment and constructive dismissal. Now you just need to convince them that (a) it's a very different role and why, and (b) you feel it's a material detriment, and that's reasonable. Don't forget it's not just the role but also physical conditions that can build the picture of material detriment.



I brought up constructive dismissal in the meeting to be fair. But it was in response to them first telling me (both at the same time, loudly) that I should resign and then the HR manager telling me if I wouldn't resign I'd have to come back to work. I'm thinking of a trip to the docs on Thursday as an insurance policy against having to go back in there. It would be pretty scary seeing as I've made complaints against two immediate colleagues including my supervisor.


----------



## cesare (May 13, 2014)

maomao said:


> I brought up constructive dismissal in the meeting to be fair. But it was in response to them first telling me (both at the same time, loudly) that I should resign and then the HR manager telling me if I wouldn't resign I'd have to come back to work. I'm thinking of a trip to the docs on Thursday as an insurance policy against having to go back in there. It would be pretty scary seeing as I've made complaints against two immediate colleagues including my supervisor.



Well the material detriment point is a serious breach of contract that might give rise to you resigning in response to that (constructive dismissal, or quasi-constructive dismissal) let alone their additional suggestion that you resign.

Yep, good idea re the docs.

Having someone accompany you is a good idea even if they just witness what's being said and provide some moral support.


----------



## cesare (May 14, 2014)

maomao The relevant TUPE reg is number 4(9): http://www.legislation.gov.uk/uksi/2006/246/regulation/4/made

Unless the sole or principal reason for the substantial change amounting to a material detriment is for an Economic, Technical or Organisational (ETO) reason (you'd argue it's for an economic/organisational one, hence redundancy) any such dismissal (forced resignation) is likely to be *automatically* unfair under reg 7.

They will do their utmost to argue that it's not a substantial change amounting to a material detriment, of course, so you have to be very clear that it is.

If you can show them that it is, it would be much more cost effective for them to accept the ETO argument and give you a redundancy payment perhaps subject to a settlement agreement. If they didn't, they would run the risk of you being successful in an automatic unfair dismissal claim plus complaint about failure to inform and consult in the ET - potentially more costly than a redundancy payment.


----------



## maomao (May 14, 2014)

Really pissed off now. They've gone in heavy handed on the racism complaints and my two colleagues that are working in the office have been made to feel extremely uncomfortable about it on the office floor. Absolutely no nouse these people, just so used to getting their own way all the time. My colleagues are also feeling pretty resentful to me because they know I'm in dispute with the company (and have probably imagined a much larger payout than I'm actually looking at) but feel they don't have any such route out for themselves. Feeling pretty fucking guilty about the whole thing now.


----------



## cesare (May 14, 2014)

maomao said:


> Really pissed off now. They've gone in heavy handed on the racism complaints and my two colleagues that are working in the office have been made to feel extremely uncomfortable about it on the office floor. Absolutely no nouse these people, just so used to getting their own way all the time. My colleagues are also feeling pretty resentful to me because they know I'm in dispute with the company (and have probably imagined a much larger payout than I'm actually looking at) but feel they don't have any such route out for themselves. Feeling pretty fucking guilty about the whole thing now.


  What have they done heavy handed-wise?


----------



## maomao (May 14, 2014)

cesare said:


> What have they done heavy handed-wise?


I don't know but both were pulled in for talks with HR and are now blanking and talking in hushed tones around my two colleagues. Guess in one way it's inevitable. 

Also yesterday I described an incident involving a black colleague of mine while refusing to say who it was (there are two black members of staff from my company in that department) on the basis that while I had encouraged him to complain he had asked me not to mention it as it would affect his working relationships. They pulled him in today and asked him if it was him that it had happened to (he admitted this) and if he found it offensive. He told them that he didn't find it offensive (as he didn't want to stir up shit given that he has to work there). Of course he found it fucking offensive. He was texting me on the day about how he was going to offer the wanker outside and punch him. I persuaded him out of that. Why the fuck would he mention it to me if he didn't find it offensive? This guy has been one of my best mates for years and now he's proper pissed off with me.


----------



## cesare (May 14, 2014)

maomao said:


> I don't know but both were pulled in for talks with HR and are now blanking and talking in hushed tones around my two colleagues. Guess in one way it's inevitable.
> 
> Also yesterday I described an incident involving a black colleague of mine while refusing to say who it was (there are two black members of staff from my company in that department) on the basis that while I had encouraged him to complain he had asked me not to mention it as it would affect his working relationships. They pulled him in today and asked him if it was him that it had happened to (he admitted this) and if he found it offensive. He told them that he didn't find it offensive (as he didn't want to stir up shit given that he has to work there). Of course he found it fucking offensive. He was texting me on the day about how he was going to offer the wanker outside and punch him. I persuaded him out of that. Why the fuck would he mention it to me if he didn't find it offensive? This guy has been one of my best mates for years and now he's proper pissed off with me.



Oh dear  Did you witness the incident? Keep the texts btw.


----------



## maomao (May 14, 2014)

cesare said:


> Oh dear  Did you witness the incident? Keep the texts btw.


The texts are no good, the following texts are extremely (like extremely extremely) abusive about people who work at the company. And probably the preceding ones as well. I'm just going to try and move away from the whole bullying/racism thing if it's affecting my friends negatively. Just been scrapping with my wife about it. She was enormously pleased about me shopping the guy who was abusive about Chinese people and can't understand why I'm upset at all.


----------



## cesare (May 14, 2014)

maomao said:


> The texts are no good, the following texts are extremely (like extremely extremely) abusive about people who work at the company. And probably the preceding ones as well. I'm just going to try and move away from the whole bullying/racism thing if it's affecting my friends negatively. Just been scrapping with my wife about it. She was enormously pleased about me shopping the guy who was abusive about Chinese people and can't understand why I'm upset at all.


Keep them (the texts) anyway. You don't have to take any action right now on that front. Just wait and see what happens, it's early days yet.


----------



## equationgirl (May 14, 2014)

maomao said:


> I don't know but both were pulled in for talks with HR and are now blanking and talking in hushed tones around my two colleagues. Guess in one way it's inevitable.
> 
> Also yesterday I described an incident involving a black colleague of mine while refusing to say who it was (there are two black members of staff from my company in that department) on the basis that while I had encouraged him to complain he had asked me not to mention it as it would affect his working relationships. They pulled him in today and asked him if it was him that it had happened to (he admitted this) and if he found it offensive. He told them that he didn't find it offensive (as he didn't want to stir up shit given that he has to work there). Of course he found it fucking offensive. He was texting me on the day about how he was going to offer the wanker outside and punch him. I persuaded him out of that. Why the fuck would he mention it to me if he didn't find it offensive? This guy has been one of my best mates for years and now he's proper pissed off with me.


I'm assuming you made it absolutely clear to him in private  that you had no option but to discuss the racist incident. You didn't tell them who it involved, in fact you made it clear to HR that you wouldn't which is why they have acted in this manner. He's probably worried about reprisals which is understandable but if racism isn't challenged people assume their unchallenged behaviour is perfectly fine.

He will understand. I know you feel bad but if you had done nothing you would have felt worse.


----------



## equationgirl (May 14, 2014)

maomao said:


> Just got this response back from HR to my earlier email:
> 
> 
> 
> ...


Libellous in that context sounds like a subtle threat to be honest, in that if you talk about the company they'll sue you for libel. It's completely irrelevant to the situation at hand other than they are sufficiently worried you will explore all avenues possible. 

My advice would be not to agree or hint at agreeing to waiving any potential settlement money for now. It's easy to say you'll just take the redundancy money but if you're in a specialist industry getting a new job might not be easy or quick and you should make sure there's enough for what you need for a few months or so.

I also agree with taking someone with you at any future meetings, and seeking legal advice.


----------



## maomao (May 14, 2014)

equationgirl said:


> I also agree with taking someone with you at any future meetings, and seeking legal advice.



A good friend who works in a closely related department and was under my supervision at my old company but works in a distinct department and different office at this company will be accompanying me. She's a very intelligent and confident person so I can trust her to not interject too much but speak up if she feels they're getting over aggressive. She's also pretty pissed off at the whole process, she's the person I mentioned earlier who was left with no training and no log in for a considerable period of time and was signed off from work with stress. I owe her a massive favour for this as she normally starts work at 4pm but the meeting is at 10am. She wants me to record the meeting so I will be asking if I can do this.


----------



## equationgirl (May 14, 2014)

maomao said:


> A good friend who works in a closely related department and was under my supervision at my old company but works in a distinct department and different office at this company will be accompanying me. She's a very intelligent and confident person so I can trust her to not interject too much but speak up if she feels they're getting over aggressive. She's also pretty pissed off at the whole process, she's the person I mentioned earlier who was left with no training and no log in for a considerable period of time and was signed off from work with stress. I owe her a massive favour for this as she normally starts work at 4pm but the meeting is at 10am. She wants me to record the meeting so I will be asking if I can do this.


Unless it is expressly forbidden in workplace policies (and even then, it might not prevent such recordings being used at tribunal), in this case, I would not bother asking their permission, they may after all say no. Covert recordings have been accepted at tribunals recently:

http://www.lexology.com/library/detail.aspx?g=87bfa462-3907-4c55-a572-1db0680e02b1


----------



## maomao (May 14, 2014)

equationgirl said:


> Unless it is expressly forbidden in workplace policies (and even then, it might not prevent such recordings being used at tribunal), in this case, I would not bother asking their permission, they may after all say no. Covert recordings have been accepted at tribunals recently:
> 
> http://www.lexology.com/library/detail.aspx?g=87bfa462-3907-4c55-a572-1db0680e02b1


So what's better? Just plonk it on a table and tell them I'm recording it or put it in my pocket and don't mention it?


----------



## StoneRoad (May 14, 2014)

maomao said:


> So what's better? Just plonk it on a table and tell them I'm recording it or put it in my pocket and don't mention it?



Both overt and covert recordings plus notes taken ........... you can always *switch off* the overt one and say nowt

(I'm not an expert - that is just my personal opinion !)


----------



## equationgirl (May 14, 2014)

maomao said:


> So what's better? Just plonk it on a table and tell them I'm recording it or put it in my pocket and don't mention it?


I'd put it in my pocket and not mention it. Obviously this comes with the caveat I'm not a lawyer, but as you are already reporting aggressive behaviour it would be a form of insurance, incontrovertible proof that they are trying to intimidate you into resigning.


----------



## MrSki (May 14, 2014)

Take someone with you who looks like a lawyer & get them to record everything. You don't have to tell them who they are but just say they are there for moral support. The employer will probably think that you have an employment lawyer with you and shite themselves. Good luck.


----------



## maomao (May 14, 2014)

MrSki said:


> Take someone with you who looks like a lawyer & get them to record everything. You don't have to tell them who they are but just say they are there for moral support. The employer will probably think that you have an employment lawyer with you and shite themselves. Good luck.


My friend works in their building. She does look a bit lawyery with her glasses on but I don't think she'll fool anyone. I've done a bit of reading, am convinced my position is pretty sound and I'm relishing the opportunity for a scrap. I now have a pretty firm offer of work from one company starting in June and also an interview on Friday afternoon.

I emailed the HR department back to confirm who I'd be taking to the meeting and to enquire whether it was being held formally under grievance procedures. I couldn't help take the piss out of the 'libellous' comment a bit:




			
				me said:
			
		

> I don't see how my comments about a constructive dismissal case could possibly be construed as libellous as they were neither published nor broadcast. I think you mean defamatory but even then I don't see how...People have legal disputes all the time without either party being guilty of defamation.


----------



## equationgirl (May 14, 2014)

maomao said:


> My friend works in their building. She does look a bit lawyery with her glasses on but I don't think she'll fool anyone. I've done a bit of reading, am convinced my position is pretty sound and I'm relishing the opportunity for a scrap. I now have a pretty firm offer of work from one company starting in June and also an interview on Friday afternoon.
> 
> I emailed the HR department back to confirm who I'd be taking to the meeting and to enquire whether it was being held formally under grievance procedures. I couldn't help take the piss out of the 'libellous' comment a bit:


Fab news about the new job offer 

Can't wait to see their response!


----------



## Quartz (May 15, 2014)

maomao said:


> I now have a pretty firm offer of work from one company starting in June and also an interview on Friday afternoon.



Definitely do NOT mention this! Best of luck.


----------



## maomao (May 15, 2014)

Quartz said:


> Definitely do NOT mention this! Best of luck.


I know.  They're both startups anyway so neither definite and it's an informal chat technically not an interview.

Just had a call saying they would like to change tomorrow's meeting to a without prejudice meeting to discuss terms so I won't get to have lunch with my friend afterwards.


----------



## cesare (May 15, 2014)

maomao said:


> I know.  They're both startups anyway so neither definite and it's an informal chat technically not an interview.
> 
> Just had a call saying they would like to change tomorrow's meeting to a without prejudice meeting to discuss terms so I won't get to have lunch with my friend afterwards.


Without prejudice is a meeting to discuss settlement, potentially good news.


----------



## maomao (May 15, 2014)

cesare said:


> Without prejudice is a meeting to discuss settlement, potentially good news.


I know hence the 

I'm wondering whether to ask for extra now for the damage to my neck and how much that's worth. No hasty decisions will be made.


----------



## cesare (May 15, 2014)

maomao said:


> I know hence the
> 
> I'm wondering whether to ask for extra now for the damage to my neck and how much that's worth. No hasty decisions will be made.


You need to establish which claims they're potentially interested in compromising out, and if those include PI. Usually they specifically exclude PI but include a warranty that PI isn't known about at the time of signing. If you think they've done something that's caused long term damage you need to get advice from a PI lawyer ASAP.


----------



## maomao (May 15, 2014)

cesare said:


> You need to establish which claims they're potentially interested in compromising out, and if those include PI. Usually they specifically exclude PI but include a warranty that PI isn't known about at the time of signing. If you think they've done something that's caused long term damage you need to get advice from a PI lawyer ASAP.


It's a long term problem that existed before the discomfort at work. I'm quite sure it would be difficult to prove how much is due to their negligence over those four days but point taken and I will have a look. Thanks.


----------



## equationgirl (May 15, 2014)

maomao said:


> It's a long term problem that existed before the discomfort at work. I'm quite sure it would be difficult to prove how much is due to their negligence over those four days but point taken and I will have a look. Thanks.


Hope it went ok


----------



## maomao (May 15, 2014)

equationgirl said:


> Hope it went ok


I didn't get advice. I had a nap instead. I'm murder for assuming I know best and going in single-handed anyway. 

Seriously though, looking at the results of similar claims I don't think it's worth massive amounts of money and would be incredibly hard to prove what part of it was their fault, I have a history of neck problems and the intervals between them are pretty similar. There's also the fact that they have apologised and made clear that they would make suitable arrangements if I were to go to work in their office permanently.  I was after all only in their office for four days. 

I've made it very clear throughout Tuesday's meeting, and in yesterday's email, that I'm not making a vexatious case in the hope of a big payout but there's an amount of money I believe I'm entitled to and I'm going to stick to it. I was extremely stubborn on Tuesday and I don't think they've asked me to a meeting under this protocol to insult me with an unsatisfactory amount of money (though they'd be stupid not to try and bargain). We agreed on the phone that if I wasn't happy with the result of this meeting that we could have a meeting, with another party present, under grievance protocol early next week to continue the discussion in more detail. They should know by now I'm stubborn enough to do that if I'm not happy. Though I would like to settle this asap as I've had a very stressful year so far and this would draw a line under a big part of it.

I've just done a lot of reading up on settlement agreements and have made two lists of terms that I would find acceptable in such an agreement. One with some amounts of money written on it and one without. 3 copies of each. I've rehearsed what I want to say, and gone through a lot of possibilities in terms of what they could say to me (and I'm cleverer than at least one of them so I think I've thought of most of it). I've made it clear in the list and will make it clear verbally that I'm not dropping the right to a PI claim without a payment to represent this. What I find acceptable in this respect will depend on how the rest of the meeting goes.

I'm feeling confident enough that I told mrs maomao we're probably going out for dinner tomorrow night. Only for her to remind me that she's going out with work friends. I'd forgotten because I've been wrapped up in this.


----------



## equationgirl (May 15, 2014)

Why 3 copies maomao ? There's only two parties to this, you and your employer 

Bear in mind such a settlement agreement may have a confidentiality clause, asking you to keep the details of the agreement confidential in return for the payout. Break it and they'll be looking for their money back.

This summary article on settlement agreements may be useful:
http://www.lexology.com/library/detail.aspx?g=22d35a1e-d871-4457-948d-92a0acaadfdd

If they give one to you, do not sign until you've had it reviewed by a employment law specialist.


----------



## cesare (May 15, 2014)

It's not valid until he gets advice from a relevant advisor in any event

Edit: the SA will contain a certificate from the relevant advisor to state that they've given advice. The employer isn't obliged to contribute to the cost but it's absolutely standard that they do. The contribution is normally £250 to £300 + VAT but you may be able to get more on the basis that it's TUPE which us more complicated than the usual UD agreement and you'd want to get advice from a lawyer versed in TUPE rather than a normal high street solicitor.


----------



## maomao (May 15, 2014)

cesare said:


> It's not valid until he gets advice from a relevant advisor in any event
> 
> Edit: the SA will contain a certificate from the relevant advisor to state that they've given advice. The employer isn't obliged to contribute to the cost but it's absolutely standard that they do. The contribution is normally £250 to £300 + VAT but you may be able to get more on the basis that it's TUPE which us more complicated than the usual UD agreement and you'd want to get advice from a lawyer versed in TUPE rather than a normal high street solicitor.


Done. One of my terms is that they provide and pay for the solicitor.


----------



## maomao (May 15, 2014)

equationgirl said:


> Why 3 copies maomao ? There's only two parties to this, you and your employer



There'll be three people in the meeting, me, hr woman and manager. As it's without prejudice I'd pass them my list for examination as we discuss it and ask for it back at the end of the meeting.



> Bear in mind such a settlement agreement may have a confidentiality clause, asking you to keep the details of the agreement confidential in return for the payout. Break it and they'll be looking for their money back.



I know. I have no intention of breaking it and wouldn't even give the details of the result here.



> This summary article on settlement agreements may be useful:
> http://www.lexology.com/library/detail.aspx?g=22d35a1e-d871-4457-948d-92a0acaadfdd



I've read several similar summaries already and will have a look at that one in the morning.



> If they give one to you, do not sign until you've had it reviewed by a employment law specialist.



See answer to cesare above.

Massive thanks to both of you, equationgirl and cesare, by the way for your help and support in this matter.


----------



## cesare (May 15, 2014)

maomao said:


> Done. One of my terms is that they provide and pay for the solicitor.


The advice has to be "independent" so you'll probably have to find your own solicitor rather than using someone they've provided. I can suggest a few people if you want.


----------



## equationgirl (May 16, 2014)

maomao you're more than welcome cesare is much better than me in any case but I'm glad I've been helpful.

Good luck for tomorrow (not that you need it, sounds like you're pretty sorted).

The only reason I mentioned confidentiality was because there was a recent case in the US where a headteacher got paid off and his daughter posted a comment about the settlement on Facebook. The courts took a dim view of this breach and made him pay back the whole settlement.


----------



## maomao (May 16, 2014)

cesare said:


> The advice has to be "independent" so you'll probably have to find your own solicitor rather than using someone they've provided. I can suggest a few people if you want.



That would be amazingly helpful. Thanks. PM sent.


----------

