Employment Tribunal Claim?

vic77en

Hi there, after some advice and hopefully reassurance....

I wanted to return to work on a jobshare basis after maternity leave, but my request was refused, even though the same role in a different office is done as a job share.

At the meeting to discuss this, I was told my role had been given more responsibilities and wouldn't be allowed help from temporary staff even though I had been previously. I resigned as I didn't think I could return full-time with a bigger role than before and no help, with a small child to look after.

I was advised by an employment law solicitor that I may have a case for sex discrimination under flexible working regs and possibly constructive dismissal, though this was weakened as I wrote them a bland resignation letter.

The ET1 form would have to be submitted today, but couldn't get this sorted on my insurance policy and solicitor wouldn't take no-win no-fee as they said it was 51% chance of success and they need 70%.

So I have drafted my own ET1 to submit.

If I submit it and then decide it's all a bit too much and withdraw, can my employer claim costs from me? Reading these forums, I wouldn't like to be on receiving end of some of the bullying tactics so if it came to it, I probably would want to walk away...

Thank for your advice...

Owain_Moneysaver

Your employer can claim costs if there is no basis in law to your claim and if they go all the way to the Tribunal and win the case, they can then ask for costs.

Uncertain

I can see no harm in putting in a claim (so that you meet the time limit). If you don't you have lost virtually all chance as the time limit is very strict.

You can take advice over the next few days / weeks and then withdraw the claim if appropriate. It is very rare indeed for costs to be awarded (less than 5% of lost cases) and I'm not aware of any mechanism by which costs could be claimed at an early stage.

vic77en

Thanks for your comments.
Well, I submitted and have received notification the claim has been accepted and gone to my employer so I guess now it's just a case of waiting for their response and/or if Acas get in touch...

Vic

SarEl

Uncertain wrote: »

I can see no harm in putting in a claim (so that you meet the time limit). If you don't you have lost virtually all chance as the time limit is very strict.

You can take advice over the next few days / weeks and then withdraw the claim if appropriate. It is very rare indeed for costs to be awarded (less than 5% of lost cases) and I'm not aware of any mechanism by which costs could be claimed at an early stage.

I agree. But I have to say that your lawyer sounds like a shyster to me. I can't see the basis of his advice and I don't agree with it - and I am a barrister specialising in employment law. An employer must consider applications for flexible working patterns - the law specifically does not say that they have to agree it! So unless there is more to this (possible) to demonstrate that the refusal was based on your gender or parental responsibilities (which pretty much almost nobody can prove) the you have no case.

I am afraid I see too many lawyers telling people they will only represent them if they pay up, ignoring the fact that the person has no case to start off with. Based purely on what is in this post - I would have told you that I wouldn't represent you because your case is too weak.

Uncertain

SarEl wrote: »

I agree. But I have to say that your lawyer sounds like a shyster to me. I can't see the basis of his advice and I don't agree with it - and I am a barrister specialising in employment law. An employer must consider applications for flexible working patterns - the law specifically does not say that they have to agree it! So unless there is more to this (possible) to demonstrate that the refusal was based on your gender or parental responsibilities (which pretty much almost nobody can prove) the you have no case.

I am afraid I see too many lawyers telling people they will only represent them if they pay up, ignoring the fact that the person has no case to start off with. Based purely on what is in this post - I would have told you that I wouldn't represent you because your case is too weak.

Assuming that SarEl's advice is correct (and I would be very surprised if it were not) then you have a dilemma.

Up to what point do you let this run? They may, via ACAS, offer some modest settlement even if they are advised they have a good case as they may judge this easier and cheaper than fighting. Or they may be one of those employers who fight regardless. Do you have any clue on this?

The chances of costs being awarded against you if you go the distance are slim but that won't stop them threatening!

Take some one to one advice from a specialist as, if you do have a case, the award could be considerable.

SarEl

Uncertain wrote: »

Assuming that SarEl's advice is correct (and I would be very surprised if it were not) then you have a dilemma.

Up to what point do you let this run? They may, via ACAS, offer some modest settlement even if they are advised they have a good case as they may judge this easier and cheaper than fighting. Or they may be one of those employers who fight regardless. Do you have any clue on this?

The chances of costs being awarded against you if you go the distance are slim but that won't stop them threatening!

Take some one to one advice from a specialist as, if you do have a case, the award could be considerable.

I wouldn't worry about costs at this stage. You are representing yourself and provided you aren't OTT, you won't be penalised for being wrong - only for being vexatious or litigatious. Tribunal judges are not daft and they are as helpful as they can be whilst remaining neutral. If your claim is poor, and if it got as far as a CMD, they judge would let you know if your claim wasn't going to fly (although they have to be cautious, so you need to listen carefully between the lines sometimes). It would only be after that that the employer might stand a chance of claiming costs (and it is rare it happens). Being wrong is ok, but ignoring a tribunal judge telling you so is the dangerous point!

But I also wouldn't assume the award could be considerable. In fact most are not. People get this impression because they read more news headlines than attend tribunals. It simply isn't true.

Googlewhacker

The average award across all jurisdictions increased to £20,910 in 2009 – the highest recorded. This reflects the record number of awards over £100,000. These include: a disability discrimination award for over £3/4m (Driscoll v News Group Newspapers Ltd); an award for sex discrimination of almost £0.5m (Scanlon v Redcar and Cleveland Borough Council); almost £400,000 in a race discrimination case (Wardle v Calyon); and an award of £120,000 for age discrimination (Koh v Sainsburys Supermarkets Ltd)

http://www.apbusinesscontacts.com/the_people_bulletin-pb_6/rocket.aspx

Above is the average but it has been vastly distorted due to some large payouts including one for 3/4 million.

The median was actually £2k down on 2008 at around £7806 which is a more realistic figure if you win.

If anyone reads further the vast majority of the high payouts are down to the loss of future earnings as they are unlikely to be employable again.

SarEl

Googlewhacker wrote: »

The average award across all jurisdictions increased to £20,910 in 2009 – the highest recorded. This reflects the record number of awards over £100,000. These include: a disability discrimination award for over £3/4m (Driscoll v News Group Newspapers Ltd); an award for sex discrimination of almost £0.5m (Scanlon v Redcar and Cleveland Borough Council); almost £400,000 in a race discrimination case (Wardle v Calyon); and an award of £120,000 for age discrimination (Koh v Sainsburys Supermarkets Ltd)

http://www.apbusinesscontacts.com/the_people_bulletin-pb_6/rocket.aspx

Above is the average but it has been vastly distorted due to some large payouts including one for 3/4 million.

The median was actually £2k down on 2008 at around £7806 which is a more realistic figure if you win.

If anyone reads further the vast majority of the high payouts are down to the loss of future earnings as they are unlikely to be employable again.

But you need to bear in mind too that even the "median award" ( and it's now £7k - the last published median award for sex discromination cases) is not a true reflection of what a case may be worth. As you said, the figures are scewed by high earners - they are also scewed by "how serious" the case is - and it takes some pretty serious stuff at times to even get that much!

Uncertain

None of these statistics of course show how many cases were settled beforehand or at what amounts.

As I've said before, some employers tend to settle any even half serious claim whereas others fight lost causes as a matter of policy.

Some idea of your employer's normal approach would be very helpful indeed. However, this is not easy to establish as one of the big advantages of settling, from the employer's point of view, is that there is almost always a confidentiality clause.

Googlewhacker

Uncertain wrote: »

None of these statistics of course show how many cases were settled beforehand or at what amounts.

As I've said before, some employers tend to settle any even half serious claim whereas others fight lost causes as a matter of policy.

Some idea of your employer's normal approach would be very helpful indeed. However, this is not easy to establish as one of the big advantages of settling, from the employer's point of view, is that there is almost always a confidentiality clause.

Quite but even then I wouldn't expect settlements to be much differant because most companies will have gotten advice and been given the average payouts etc and what they could expect to lose. If anything if we took all payouts into account I would seriously expect the median and the average to drop rather than increase