Martin Brewer and Esther Smith advise on whether this employee should resign or seek a severance payment.
The question: Resign or seek severance?
A year ago I negotiated flexible working with my employer (I work four longer days Mon-Thurs and take Friday off) so I could help care for my parents. My mother is now terminally ill and I will have to take on more responsibility. I already cook, clean, shop, garden etc. for them. I suspect I may have to give up work to do more and the company have already said no to shortening my hours further, and have asked me not to take time off unless it’s for e.g. an emergency admission to hospital for one of my parents. I have no savings to speak of and am the main wage earner at home. I am wondering if it might be possible, rather than resigning and getting nothing, to ask about a severance package, then start looking for a part-time job? I guess they can dismiss me anyway on grounds of capability if I start taking time off or getting ill with stress myself (I am already on medication for depression), but I suspect this might be a long-winded and/or costly route for them which they may want to avoid. I’ve been with the company 12 years. What would be the best approach?
Legal advice:
Martin Brewer, partner, Mills & Reeve
Well, you can ask about a severance package but what incentive is there for your employer to agree? I assume that either one or both of your parents are disabled. If so, you are covered by the DDA which is now construed to cover so-called ‘associative discrimination’.
In other words your employer cannot discriminate against you on the grounds of someone else’s disability, which may be the case if the employer dismissed you for needing time off to care for a disabled parent. This law is only just developing but the difficulty it could pose for your employer may mean you can use it as a bargaining chip to do a deal over a severance package. You need to have a clear idea what you want to achieve.
Consider writing to your employer setting out that you are caring for disabled people, that you believe you are covered by DDA as a result of associative discrimination and that you feel that your employer’s stance on hours, whilst initially supportive is now detrimental to you. This is the basis for negotiating a deal – you won’t bring a claim if they settle.
However, in my view this remains speculative. Your employer has been helpful so far and may have genuine difficulty with you doing fewer hours and they may well be prepared to defend that position in tribunal if necessary. You may take the view that it’s better to help look after your parents than litigate.
Martin Brewer can be contacted at martin.brewer@mills-reeve.com. For further information, please visit Mills & Reeve.
***
Esther Smith, partner, Thomas Eggar
You could approach the company for a severance but in the circumstances, unless they are particularly generous, I don’t see any great reason why they would pay you off. If you choose to leave due to your personal circumstances that is entirely up to you.
If you do start taking additional time off, or suffering from ill health that affects your attendance, there may be grounds for the company to consider either disciplinary action or ultimately a capability dismissal if you are rendered incapable of performing your contractual duties due to ill health.
I guess if you are going to leave anyway, then you have nothing to lose by asking the company for a package, but I wouldn’t be too optimistic!
Esther Smith is a partner in Thomas Eggar’s Employment Law Unit. For further information, please visit Thomas Eggar.
