Case Study: Securing an increased COT3 offer of almost £150,000 due to Menopause Discrimination
How Fiona Martin, Head of our specialist Employment Law Team in Brighton, successfully increased our client’s COT3 offer by almost £60,000 due to menopause discrimination.
The situation
Annie worked for an insurance company for over two years when she believed she was being discriminated against following her recent sickness absence when she had been signed off sick with stress and adverse menopause symptoms.
Annie had been prescribed Hormone Replacement Therapy (HRT) to help manage her symptoms, which included anxiety, insomnia, brain fog, and problems with her memory. She felt unsupported at work and after becoming emotional in meetings had been told not to attend senior management meetings.
Annie’s employer sent her for an Occupational Health assessment after she had taken time off. From this, they received a report which recommended counselling and reasonable adjustments such as a phased return to work. The report incorrectly advised that our client’s health conditions did not meet the definition of a disability under the Equality Act 2010 because her conditions did not cause substantial impairment of day to day activities and was unlikely to persist beyond twelve months.
Annie returned to work shortly after receiving the Occupational Health report, but no reasonable adjustments were discussed with her. During return to work discussions, her employer raised issues with internal and external relationships and she was given the option to have a ”without prejudice” conversation.
Annie was then signed off sick again for four weeks. When she returned to work, she attended a meeting where she was told that there were breakdowns in key relationships, which had never been raised with Annie before. Annie was then presented with two options; to have a “without prejudice” conversation, or the employer would seek to end her employment by dismissing her. Annie felt she had no choice but to have a “without prejudice” conversation.
Annie’s employer offered her a COT3 to terminate her employment for £90.000 made up of her notice, pension, car allowance equivalent, accrued but untaken annual leave, Healthshield benefit and an ex gratia payment.
Annie began negotiating with her employer to increase the offer and her employer came back with an offer for £100,000, which included money to be paid in to her pension plan. Her notice was incorrectly stated as being three months rather than six months, which she asked her employer to correct. Her employer increased our client’s notice payment but reduced their ex gratia offer, offering a total of £105,000.
Annie’s employer had stated that they would like to record the terms of the settlement in a COT3 as this allowed them flexibility. Annie asked for a contribution towards her legal fees, and her employer agreed and offered £2,000 plus VAT towards her legal fees.
Annie’s employer put pressure on her to accept the COT3 within three days whilst she was on holiday.
What Martin Searle Solicitors did
When Annie contacted us, Fiona advised that she was concerned that her employer had chosen to record the terms of termination in a COT3 rather than a Settlement Agreement. She advised our client that this was probably because a solicitor does not need to review or sign off a COT3 to ensure it is binding and enforceable
She also advised that this COT3 was not legally compliant as the employer had apportioned our client’s six month notice period so that only three months of her notice was subject to tax and national insurance. Fiona could not sign this off as this was tax avoidance.
Fiona advised Annje that the £30,000 ex gratia payment her employer was offering was really her contractual bonus and this also needed to be taxed.
In fact, her employer was only offering her what she was contractually due under her contract of employment. Any unpaid tax would have to be paid by our client as the COT3 contained a tax indemnity clause making her responsible.
Fiona advised and supported Annie in raising a formal grievance and advised her that the COT3 was not legally compliant due to these tax issues.
Fiona explained to our client’s employer that she did not agree with the Occupational Health Consultant’s conclusions that our client’s health conditions did not meet the definition of a disability because menopause symptoms often last more than twelve months, and in this case, they clearly had a substantially adverse effect on our client’s ability to carry out day to day activities. She explained how an individual must be assessed based on how she would be without medication so HRT should not be taken into consideration. She explained that her client felt she had been discriminated against because of her disability, particularly as the recommended reasonable adjustments had not been made.
The employer responded stating that they had made an error in the COT3 in regards to the tax and national insurance on the notice and agreed that this should be taxed in full.
The result
Fiona negotiated an increased offer of approx. £150,000, including notice pay, annual leave, car allowance and £72,000 ex gratia. Her employer also increased their contribution to our client’s legal fees to £2,700.00 plus VAT. Annie was happy with this offer as not only had her compensation for termination of employment increased by £20,000 but her employer also covered all of her legal fees.
For expert advice about menopause discrimination in the workplace, please contact our Employment Law Team on 01273 609911, or email info@ms-solicitors.co.uk for expert advice.
