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Reasonable adjustments when employment has ended?

Employment and Discrimination Law

Re: Reasonable adjustments when employment has ended?

Postby Scienke » Mon May 15, 2017 10:22 pm

It's not the employer's fault and it's not the employees fault either. But the employee is the one who suffers.
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Re: Reasonable adjustments when employment has ended?

Postby Smouldering Stoat » Tue May 16, 2017 4:55 am

The employer suffers too. They don't get what they've paid for, and they suffer the consequences of whatever breach of confidentiality they have paid to avoid.
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Re: Reasonable adjustments when employment has ended?

Postby dls » Tue May 16, 2017 4:57 am

If the employer knew that the employee had a mental impairment but still pressured them into making a bad decision then I see no reason why they shouldn't shoulder at least some of the blame if it all goes tits up and the employee starts breaching the agreement.


Sorry, but no. This is a very particular situation with a statutory provision. The law recognises the difficulty all employees have when faced with what is a complicated situation when under considerable pressure. The law therefore says that the employer can only achieve what he wants (an effective and binding agreement) by insisting that the employee gets independent legal advice. That statutory construct replaces any (merely possible) duty of care. Indeed it is a structure which almost explicitly invites the employer to disavow any responsibility toward the employee.

Autism varies hugely (the spectrum), to the point where it can be a crippling and continuing disability. On the other hand it can be a mild disturbance left behind after childhood.
The employer has no responsibility beyond whatever check it might want to make that the certificate is genuine.
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Re: Reasonable adjustments when employment has ended?

Postby Scienke » Tue May 16, 2017 7:47 am

dls wrote:
If the employer knew that the employee had a mental impairment but still pressured them into making a bad decision then I see no reason why they shouldn't shoulder at least some of the blame if it all goes tits up and the employee starts breaching the agreement.


Sorry, but no. This is a very particular situation with a statutory provision. The law recognises the difficulty all employees have when faced with what is a complicated situation when under considerable pressure. The law therefore says that the employer can only achieve what he wants (an effective and binding agreement) by insisting that the employee gets independent legal advice. That statutory construct replaces any (merely possible) duty of care. Indeed it is a structure which almost explicitly invites the employer to disavow any responsibility toward the employee.

Autism varies hugely (the spectrum), to the point where it can be a crippling and continuing disability. On the other hand it can be a mild disturbance left behind after childhood.
The employer has no responsibility beyond whatever check it might want to make that the certificate is genuine.


Obviously we're getting away from reasonable adjustments here. But the employer applies undue pressure, makes threats to dismiss, or even makes threats to falsely accuse the employee of a crime leading them to believe that they may face criminal prosecution for something they didn't do, if they don't sign the settlement.

Are you saying that in law the employer cannot be held responsible purely because the employee had the opportunity to take legal advice on the matter? Especially considering the situation where the employee suffers from a mental impairment that allowed them to be easily confused, frightened and manipulated? Is the employer really allowed to shoulder no responsibility in such a scenario, just because the employee had access to legal advice?
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Re: Reasonable adjustments when employment has ended?

Postby dls » Tue May 16, 2017 8:33 am

Not 'just because' but because the independent advice is a requirement in law. The law says that it is improper for the employer to have any responsibility, and therefore all the responsibility is taken from him and placed fairly and squarely on the shoulders of the adviser. He is is not excused from responsibility, he is excluded.
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Re: Reasonable adjustments when employment has ended?

Postby Hairyloon » Tue May 16, 2017 8:34 am

Scienke wrote:Obviously we're getting away from reasonable adjustments here. But the employer applies undue pressure, makes threats to dismiss, or even makes threats to falsely accuse the employee of a crime leading them to believe that they may face criminal prosecution for something they didn't do, if they don't sign the settlement.

I would expect... sorry no, I would hope that the court would take those factors into consideration.

Are you saying that in law the employer cannot be held responsible purely because the employee had the opportunity to take legal advice on the matter?

Yes, because the burden of responsibility shifts to the legal advisor.
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Re: Reasonable adjustments when employment has ended?

Postby Scienke » Tue May 16, 2017 8:43 am

So the only time the employee can raise a concern about undue influence is prior to signing the agreement?

By having access to legal advice and signing the agreement, in essence, the employee has accepted the undue influence and it is no longer actionable?
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Re: Reasonable adjustments when employment has ended?

Postby dls » Tue May 16, 2017 8:52 am

By having access to legal advice and signing the agreement, in essence, the employee has accepted the undue influence and it is no longer actionable?


No. He gets the legal advice, and says 'do you think this is a proper agreement for me to sign' The adviser discusses the entire situation, and advises purely from the standpoint of the best interests of the employee. The employee acts on that advice. No undue influence exists.
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Re: Reasonable adjustments when employment has ended?

Postby atticus » Tue May 16, 2017 9:03 am

I have said this countless times in this forum.

The advice comes in two stages.

The first stage is to get sufficient information to understand the situation and assess what claims the employee may have, what they may be worth, and what would be involved in pursuing them. You measure what the employee is being asked to give up against what she is being offered.

You cannot do that with a standard tick box form.

If she wishes to proceed, the employee is then advised what the settlement agreement means.
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Re: Reasonable adjustments when employment has ended?

Postby Scienke » Tue May 16, 2017 9:15 am

This is where it becomes very confusing because what you say Atticus strikes me as the proper way to give legal advice to someone with a potential ET claim.

However, on my nieces written legal advice from the union it says in very clear writing that they have no legal duty to advise the member on the value or merits of her potential claims. They are very clear that their only purpose is to explain what the clauses in the agreement mean.

This is something they were adamant about and were very confident that they actually had no legal duty to discuss the merits or value of any claims she may have. It was for her to do her own due diligence in that regard and to take her own legal advice if she wasn't sure.
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