Without prejudice letter: Redundancy, anxiety and depression

PRIVATE AND CONFIDENTIAL
[Named employer contact]
[Name and address of company]

By email only to [email address of employer contact]
[Date]
VERY URGENT

Dear [name of employer contact],

We have been consulted by Mr [client’s name] in respect of his employment with [name of company] Limited (the Company) and his proposed dismissal and offer made to be accepted by 9.00 am this morning.
We are instructed that he has been employed since [date 4 years ago] and is employed as a [name of type of role] Consultant. He commenced working as a [name of type of role] Trainee and has progressed to the position of Consultant.

Background and Disability
Our client has a long-standing mental health condition of anxiety. His symptoms resurfaced last year and he saw a specialist for anxiety and depression last year. This has impacted him both at work and outside of work. He had an extensive period of absence from [date in] June to [date in] September [year date 1 year ago] and further odd days from September to December [year date 1 year ago] with depression, anxiety and stress. Despite the lengthy period of absence from June to September [year date 1 year ago] and the reason for the absence, no formal back to work interview was conducted nor any steps taken throughout [year date 1 year ago] to establish the underlying reasons why he had intermittent periods of absence. Overall he had about 3.5 months absence during [year date 1 year ago].

It was only after a three-month period of absence that he had an informal meeting with [name of employer] on [date] (over a month since he returned to work). Our client disclosed his anxiety and depression and what makes him anxious. His line manager’s response was if you have a” lack of knowledge we can work with you but if  you are ‘anxious’ about doing a presentation I don’t know how I could work with you on that.” Our client suggested closer mentoring, coaching, management. His line manager responded that this sounded like starting from scratch and he just had to get on with it and report absences.

Despite his intermittent absences and lengthy absence (a classic warning sign of stress and anxiety), no steps were taken to arrange for occupational health or to assess the situation, working arrangements and whether any necessary reasonable adjustments were required.

At the very least, regular 121s should have been arranged together with any necessary support and training. Our client was effectively left to cope on his own.

It was not until [date earlier in the year of writing this letter], that the first formal meeting was held to seek to ascertain the problem from the previous year. Our client disclosed that he suffers from anxiety which he has been suffering for long term and that he is having weekly counselling.

He has been and continues to remain on therapy and manages his condition through counselling and has a 2 hour session weekly. He has therefore learnt to manage it better and his attendance has improved significantly this year. He has only had 2 days off in January [year date this year] and one in March [year date this year].

Despite this, as stated above the First Formal Absence Review Meeting was had on 27 January [year dates this year] and a subsequent one on 17 March [year date this year] when the first time he was asked how the company can help and occupational health was considered for the first time. There was to be a follow-up meeting in April [year date this year] but this never took place.

Company induction statement
The company’s staff induction statement includes the following:

‘At [name of company] We want to enable you to achieve your full potential by focusing on career development and planning.’

Despite our client having made known his fears and sources of anxiety and the company statement as set out above, no training or support were offered at either of the formal absence review meetings or at the informal absence review meeting held in October [year date 1 year ago].

Notification of Redundancy/ Dismissal
Instead, our client received a Meeting invite on 13 May [year date this year] for a Catch Up on the following day.
On 14 May [year date this year], at the meeting which he thought was a general “Catch up”, he was advised that this was a “protected conversation”, he had been identified as “someone who will be removed from the company based on his metrics” and he had until midday that day to consider two options namely:

1. accept an enhanced redundancy package (one month’s notice and an ex-gratia sum of £3,317) or,
2. alternatively go down the statutory redundancy route.

It was clear that either way the company wanted to terminate his contract of employment and he was to be dismissed. He was asked to stop working and no further work was provided to him.

This announcement came out of the blue and was in apparent contradiction to the current position and workflow. The company is still actively hiring [job title]. Based on the information we have been provided it is concerning that our client has been subjected to such treatment which was completely out of the blue and which appears to be based on a manufactured redundancy situation.

Our client’s position is not redundant. There are [several other companies in the client’s location operating in the same business area]. We are instructed that all [of these other companies] are working to full capacity. We do not accept that this is a genuine redundancy. For the avoidance of doubt, our client does not accept that the definition of redundancy as set out in section 139 (1) of the Employment Rights Act 1996 is met.

The company are seeking to “remove him” for reasons either related to performance, capability and/ or sickness absence without following due process.

As a decision was sought by midday, a further meeting was had on 15 May (the day after) when the ex gratia amount was increased by £1K to £4,317 and he had until 18 May to accept failing which the compulsory redundancy process would be commenced with no ex gratia.

In a further call on 19 May, and to encourage him to accept the offer, the ex gratia was increased to the sum of £6,434 and our client was asked to confirm his position by 9.00 a.m. today failing which the company will go down the route of statutory redundancy.

Leaving aside this inappropriate and improper behaviour referred to in more detail below, despite the company being aware of our client’s medical condition, his history of suffering from anxiety and depression, the company had absolutely no regard or concern of the impact upon him of such pressure and tight time limits to make a decision about his livelihood and his future.

Unfair Selection for Redundancy
Our client is the only one selected to be made redundant in [name of employer’s location] and he understands one other person based in another jurisdiction. The fact that he was the only employee in the team selected for redundancy is highly suspicious. He has been treated less favourably than his colleagues and our client feels it is because of his disability.

The matrix used against him is performance-based taking into account the period of his absences. It is very obvious that his anxiety, related absences, lack of support and overall negligence has had a considerable impact on his physical and mental health and therefore attendance and performance.

In view of the above, it is clear that the proposed termination by reason of redundancy is unfair because of the method of selection not least because there appears to be no objective basis. Our client suffers from a disability and by taking into account his related absences he is being subjected to a detriment because of his disability.

In any event, if the selection is based on the performance or capability basis, due processes have not been followed to address these, assist our client and provide him with development, planning and necessary support. Such processes if undertaken fairly and properly would take about six months.

Furthermore, given that the company is still actively recruiting, if there was indeed any genuine reduction in work, then the appropriate measure and steps to be taken were for the company to avail itself of the furlough scheme and avoid making a redundancy.

Status of Conversation
The offers made to [client’s name] in such clear transgression of basic, established UK employment law, and his rights under it, that we assume it would be supererogatory for us to explain this in any detail in this letter. Our assumption is that the Company understands this and simply wishes to enter into the Settlement Agreement as a matter of expediency, and if that is the case then we will set out below what that would require.

To avoid any misunderstanding, however, we would make the following summary points about the legal position:
1. This discussion was described as a section 111A protected conversation. While we are sure you are aware that while s.111A, ERA affords employers some degree of protection when entering into negotiations to terminate an employment contract, it is a requirement that the employer does not subject the employee to improper pressure to revert on the offer and meet. Following the meeting on 14 May, he was asked to revert by midday the same day.

2. A second meeting was held the following day on 15 May and the period allowed for acceptance was until 18 May.
3. In a further call on 18 May, he was pressured to confirm by email his acceptance of the enhanced offer (increased to £6,434) failing which you would go down the route of statutory redundancy after 9:00 am today.

Therefore, this protection cannot be relied upon in circumstances when he has been subjected to improper pressure/ improper conduct to revert on the offer and meet. Moreover, our client can properly regard this as coercion entitling him to claim constructive unfair dismissal if he chose to do so. His position is reserved, and he does not waive any breach.
In any event, such dismissals do not apply to claims involving discrimination.
It can therefore be referred to in open correspondence and details of that conversation can be referred to and used in subsequent employment tribunal proceedings. (You will have noted that this letter is not sent on a ‘without prejudice’ basis).

Current Position
In light of the above, there are a number of valuable legal claims arising from our client’s treatment including constructive and ordinary unfair dismissal, discrimination arising from disability, failure to make reasonable adjustments, being subjected to a detriment and victimisation. Our client reserves all his rights and does not accept or waive any breaches of contract.

In the circumstances, our client now faces potential unemployment for an unknown period, particularly given the global health situation. He will find it incredibly difficult to find alternative work at this stage. It is not inconceivable that our client could be out of work for 12 months or more given the impact of the Coronavirus on the economy.
He does not consider himself to be bound by any restrictive covenants as you have breached his contract of employment. He considers the entire redundancy to be manufactured in his respect and the treatment he has received he considers unprofessional.

The above will not play well in the Employment Tribunal.

Our client wants his employment to continue. If it is the company’s position that there is a reduction in work (which is not accepted), he would ask the company to consider furloughing him until the work picks up again.
On a personal note, he is deeply saddened and disappointed by the steps taken by the company and by the abrupt unceremonious way he was informed. He would have hoped that his length of service and knowledge of his medical condition would have afforded him better treatment. That said, having now been put in the situation he is prepared to be realistic about the situation and reluctantly he must consider the settlement agreement option. We contend that the starting point for any such settlement has to be 12 months’ salary as it is likely to take [client’s name] at least this amount of time to acquire an equivalent post. In addition, the settlement payment should be increased to reflect the loss of benefits and statutory rights that [client’s name] will suffer as a result of losing his employment. The settlement should also acknowledge the legal costs he has already incurred in instructing us to negotiate a proper settlement.

However, in an attempt to bring this matter to a swift conclusion, we would seek the following modest increase to the current offer and one month’s notice pay:

1. Payment of a further £18,500 ex gratia payment in addition to the sum of £6,434.

2 Statutory redundancy pay of £2,204.
3. Contribution to legal costs in the sum of £2500 plus VAT plus £500 plus VAT for advice on the Settlement Agreement.
4. Waiver of restrictive covenants.
5 An agreed announcement to staff and clients about his departure which can also be relied upon when answering questions from external parties such as recruiters.
6. An agreed reference, the wording for which should be attached to the agreement as a schedule.
You will note the main difference in offer relates to the compensatory amount. The increase relates to the fact that our client has been subjected to a detriment and suffered injury to feelings but is relinquishing his right to raise a Grievance and pursue a claim for constructive unfair dismissal and disability discrimination in the Employment Tribunal. Just for the Grievance process alone to take its course would be 6 months. If the company did seek to proceed with managing our client out of his role, this would comfortably be another 6 months of resources, investigations and friction and at the end of the process the company cannot be certain it will have grounds to dismiss him. As a result, the above offer reflects the waiver of rights and vindication that [our client] will be agreeing to. In contrast it is clear there is considerable benefit to the company for him to sign a settlement agreement. That option allows [the employer] to avoid a protracted performance management capability process during which it will have to pay his salary.

We look forward to hearing from you by way of return and a draft settlement agreement identifying the heads of terms above. In return, our client will agree not to raise any grievance, refrain from making subject access requests and sign a Settlement Agreement settling all and any claims under the Employment Tribunal’s jurisdiction. We will arrange early completion of the Settlement Agreement.

We are aware that you wished to receive a response by 9:00 am today notwithstanding our client’s mental well-being and he was forced to secure our urgent assistance last minute at cost due to the inappropriate behaviour; therefore we consider this letter to be the said response in accordance with your deadline.

Please note that we reserve the right to bring this letter to the attention of the Tribunal in respect of costs, should our client be forced to pursue his claims.

We await hearing from you accordingly.
Kind regards.
Yours sincerely,

[Name of individual solicitor]
MONACO SOLICITORS