Employers threatens me with Employment Tribunal costs

Psychosynthesis

I used to work for the Local Council. I was dismissed for Gross Misconduct after going through disciplinary proceedings. I appealed against the dismissal but it was dismissed.

I have sent an appeal to the Civil Service Appeal Board and have a hearing date in February 2011.

I made an Employment Tribunal claim against my ex-employers for Unfair Dismissal and Discrimination. My ex-employers rejected the allegations in their ET3 submission.

ACAS offered a mediation which I accepted (they are yet to get a mediation agreement from my ex-employers).

My ex-employers (Respondents) have requested a Pre Hearing Review at the ET to determine the likelihood of my case succeeding and to make me pay a deposit of £500 if my ET case proceeds. The PHR date is on 19/11/2010.

Suddenly, my ex-employers Solicitors send me a letter today asking me to withdraw my ET case by 16/11/2010 as it is misconceived and that they would be pursuing a case to recover the cost of the Tribunal proceedings from me.

I thought that the purpose of the Pre-Hearing Review pursued by my ex-employers was to determine the likely success of my case, so why are they issuing me with a threatening letter to withdraw the case?

I have informed my Union Reps about the threat letter but it seems they are a bit reluctant to offer support at ET level. They preferred to represent me before the CSAB and ACAS. What should I do? Do I inform the PHR Judge about the threat letter? Does Simms vs Mckee apply to me here ?

N/B I asked the Judge to postpone the PHR pending the outcome of the CSAB hearing in 2011 and ACAS mediation but it was overruled.

SarEl

This is not an uncommon threat, and it is a perfectly lawful threat. Whether they will win such an application is a different matter. On the other hand the Tribunal are unlikely to support such a claim unless they agree with the respondant and will certainly not make such a ruling retrospectively if there is a PHR scheduled. But equally, I should point out for balance that if the union are reluctant to support you at an ET, this is a very bad sign because it indicates that they also do not believe you have a case. I believe that you have at least util the PHR to make a decision - but should also warn you that even if the PHR goes in your favour it does not absolutely rule out a costs order being made against you at tribunal. It is very unlikely, and tribunals rarely give them - but they do give them and it is impossible to rule it out, especially without knowing the case.

Psychosynthesis

Thanks. The Unions do try and save costs. One of the reasons why I suspect my ex-employers are threatening me to withdraw the case is because it would trigger a lot of sensitive information about their procedures and practices to be disclosed and scrutinised in public domain even if I lost the case. I believe i have strong grounds and would prefer to be told by the Judge during the PHR that my case lacks merit than to be bullied to withdraw it by my employers even though they instigated the PHR. I'm suprised they cant wait until the Judges makes that call instead of the threat. My case has to be proven to be "misconceived" before any cost claim can come against me.

SarEl

No, unions do not try and save costs. Whether they will represent a cae at tribunal is based on a legal opinion of the chances of winning. It isn't an exact science, but it's pretty damn close because their legal advisors do nothing else but this type of work.

I suspect you overstate how interested the media will be - they rarely bother to attend cases that are very high profile.

And no, your case can be considered vexatious, not just misconceived, and have costs awarded against you.

But equally, as I said - such threats are common and are lawful. They can claim costs but that doe not mean that they will get them.

dickydonkin

I have informed my Union Reps about the threat letter but it seems they are a bit reluctant to offer support at ET level.

Are you referring to the 'Union Reps' ie Shop Stewards or has a full time official been informed?

Has your case been referred to a solicitor by the union to determine the likelihood of success - I suspect it probably has, just that there is no mention of it. Cetainly in the case of Mrs.P's claim for unfair dismissal, she received a copy of a Barristers' report that determined a 70% likelihood of success - although this action was financed by our insurers.

There is an ongoing case on this forum where the union only provided a union rep to fight the case at tribunal - as opposed to a solicitor and I wonder if a solicitor had been provided in the first instance, the case would not have been as protracted.

SarEl

dpassmore wrote: »

Are you referring to the 'Union Reps' ie Shop Stewards or has a full time official been informed?

Has your case been referred to a solicitor by the union to determine the likelihood of success - I suspect it probably has, just that there is no mention of it. Cetainly in the case of Mrs.P's claim for unfair dismissal, she received a copy of a Barristers' report that determined a 70% likelihood of success - although this action was financed by our insurers.

There is an ongoing case on this forum where the union only provided a union rep to fight the case at tribunal - as opposed to a solicitor and I wonder if a solicitor had been provided in the first instance, the case would not have been as protracted.

I wouldn't necessarily assume this. When I provide a legal opinion, my opinion belongs to the client (the union in this case) and not the member. I personally have no problems with that legal opinion being shared with the member - but some unions do not like to do this directly, and do not hand over the papers. I have to respect this because they are the client.

It is also not the case that the union would provide a lawyer or nobody. If a case is not too complex then a union official is perfectly adequate if they are trained and experienced - in my opinion many of the union officials are better than a great many solicitors I see in tribunals, many of whom are not specialists and have little experience or knowledge. Remember that many of these officials actually train with people like me - and often on the job, so to speak! They may have more exposure to employment tribunals and employment law than the majority of high street solicitors. Many unions also employ their own legal staff.

If a case is more complex then a specialist legal opinion would be sought. As you suggest, a "balance of probabilities" is determined in terms of the chances of success. Usually the union will require 51% or more chance of winning to retain legal representation - but this still does not mean that they will not represent the member at tribunal, but on a lower chance case, they may not wish to expend a vast amount of resources for little chance of winning and may allocate an on-staff solicitor or a union official. There are also exceptions - certain types of cases may be fought even if there is little prospect of winning because in principle the union will always fight such actions; or there may be an opportunity to make case law that outweighs the risks of loosing.

Unfortunately, employment law cases are often protracted - and are getting more and more so. I note that many employers are now holding out to settle until the last moment, even if they intend to settle, because the length of the tribunal process can be so long now that some people simply give up.

greendollar

Give up .......NEVER .

I wouldn't worry about the threats , they are used mainly as a bullying tactic to get you to drop your claim .
In my case my ex-employer has managed to stall the process for over 2yrs and I still have to wait till the end of Feb (fingers crossed) to finally have my claim heard . I suspect that they will again attempt to settle out of court (refused a measly offer last time) .
I'm lucky that my 2 witnesses are still willing after 2yrs to attend on my behalf , unfortunately Tribunal judges allow respondants far to much lee-way concerning Orders and deadlines and in doing so delay the process .
I wouldn't pull out 3 days before the PHR as they are suggesting , see what the judge makes of it all and then make a decision .

dickydonkin

SarEl wrote: »

I wouldn't necessarily assume this. When I provide a legal opinion, my opinion belongs to the client (the union in this case) and not the member. I personally have no problems with that legal opinion being shared with the member - but some unions do not like to do this directly, and do not hand over the papers. I have to respect this because they are the client.

It is also not the case that the union would provide a lawyer or nobody. If a case is not too complex then a union official is perfectly adequate if they are trained and experienced - in my opinion many of the union officials are better than a great many solicitors I see in tribunals, many of whom are not specialists and have little experience or knowledge. Remember that many of these officials actually train with people like me - and often on the job, so to speak! They may have more exposure to employment tribunals and employment law than the majority of high street solicitors. Many unions also employ their own legal staff.

If a case is more complex then a specialist legal opinion would be sought. As you suggest, a "balance of probabilities" is determined in terms of the chances of success. Usually the union will require 51% or more chance of winning to retain legal representation - but this still does not mean that they will not represent the member at tribunal, but on a lower chance case, they may not wish to expend a vast amount of resources for little chance of winning and may allocate an on-staff solicitor or a union official. There are also exceptions - certain types of cases may be fought even if there is little prospect of winning because in principle the union will always fight such actions; or there may be an opportunity to make case law that outweighs the risks of loosing.

Unfortunately, employment law cases are often protracted - and are getting more and more so. I note that many employers are now holding out to settle until the last moment, even if they intend to settle, because the length of the tribunal process can be so long now that some people simply give up.

Certainly your last paragraph corresponds with the experience my wife had when she took her former employer to tribunal. That was remedied 1 week prior to the hearing after about 5 months of legal wrangling (a relatively short time apparently).

I am sure there are examples though where a seemingly 'straight forward' case has turned more complicated during the course of the procedures which could potentially compromise the claim if the union have only provided a union representative as opposed to a solicitor.
(I don't use the word 'only' as a derogatory term by the way)

If this did occur, (particularly at the tribunal stage) would a tribunal accept a change of representative during proceedings or would the representative named on ET1 form have to see the dispute right through to closure?

Exhausted_representative

I was interested to hear that some unions at least are responsive in this area. I have just represented a friend in a constructive dismissal case where her union were almost obstructive - the rep admitted she was being bullied, that procedures were not being complied with, and that if she were to return to work from sick leave (her sick note stated "Bullying/stress at work" as the reason for absence) then the bullying would continue, quite possibly even if she accepted redeployment. His advice, therefore, was to look for alternative employment whilst off sick and resign once she had found something. Unfortunately by this stage she was already in such an advanced state of stress that she needed a significant period of rehabilitation and what new employer is going to take that on even if you get past the sickness absence barrier at interview.

With regard to support for a tribunal claim he said that constructive dismissal is almost impossible to prove and that the union would not allow access to their lawyers unless she had already resigned. However, he would not advise that and further said that if she resigned in opposition to their advice then they would be unlikely to allow access to their lawyers then anyway - Catch 22 comes to mind.

As she felt she had no choice, she resigned with notice - and was then told (erroneously) by her union that resigning with notice would invalidate a constructive dismissal claim. She battled on and submitted a case history, never to hear a response from the union and subsequently I have shouldered the burden of managing her case despite having no legal background.

The union in this case was Unison and there are a number of sites that suggest this experience is far from uncommon, with many unions offering free legal representation in theory but in practice taking a commission for referring personal injury claims and claiming this as a benefit to their members! If other posters have more positive experiences I am sure we would all like to hear them.

Exhausted_representative

Regarding changing representatives midway, you can change representative at any time. In the case of my "client" (friend as I am unpaid) she was represented by a professional (but unqualified) advisor at the time of submitting her ET1 and had budgeted for him continuing to represent her, but due to lots of complications (largely caused by the tribunal losing and failing to respond to correspondence) her budget ran out and I had to step in. No problem from an admin point of view, just inform ET + respondent + ACAS of the change of name and numbers etc and it is automatically adjusted (assuming they don't lose the letter informing them of this of course)