Advice on Opening Negotations in Unfair Dismissal Case

Nassy

Hi

I made a claim against a former employer about a month ago relating to unfair dismissal on grounds of sex discrimination. A number of incidents lead to me being (as I see it) unfairly demoted and then being made redundant based on the fact that my role was no longer "senior". The process itself was poor with a selection pool error, no matrix (despite a promise of one) and no two-way consultation on any cost cutting suggestions etc. There were also some issues with a flexible work request ie I felt it wasn't seriously considered. I also made a proposal to retrain into another field that would have been relevant to the business (at my own cost) and initial interest was shown but then it was clear my proposal wasn't put forward (when I feel that it should at least been seriously considered). In a nutshell I am certain that my redundancy was predetermined.

In the appeal itself allegations were made against me. I was also threatened by a former colleague from another team not to go to court or he would say that I'd said this and that (when I was clear I hadn't said any of those things). Finally I made a grievance and my former employer has been forthcoming in my opinion. For example I was told I wasn't going to be allowed to see any employee contracts etc due to confidentiality.

Anyway an ET3 came back recently which looked like it was written in a bit of a hurry (which I understand isn't abnormal).. Since then I have been trying to get to grips with process. A few weeks ago I requested a questionnaire procedure but had to ask for a time limit extension. The tribunal asked the respondant's advised whether my former employer would accept a questionnaire procedure and gave them a week to reply. Even though quite a few days have elapsed I heard nothing. I then e-mailed the respondent's advisor directly asking if a quick update was possible but am still awaiting a response (of course I appreciate they are under no obligation to respond in any case but that this won't necessarily flatter them either).

To cut a long story short, I decided to phone ACAS yesterday after feeling a bit frustrated with an apparent lack of communication from the other side. ACAS took me completely aback by suggesting the other side are about to make an offer but that the respondant advisor wants to know what I am looking for first! :eek:

To be honest, I am ok with the idea of taking this case to a tribunal but would accept what I saw was a reasonable offer. I am very wary though of starting negotiations with the other side by telling them what I will accept.. If I do this I feel I am laying my cards down very early. Also it is really early in the process and I am in a temp job which is about to come to an end so I am not even sure what my total actual losses would be yet. Finally as things stand I am pretty relaxed about continuing the process - unless an offer actually comes along. To be honest if I am going to negotiate I would rather they put something on the table first so at least I can see how they are tactically playing this. :cool:

Any advice on this? If my case goes to hearings this is unlikely to happen until next summer (ACAS advised that this is likely with my local office and also proceedings have so far been very slow) so I feel there is plenty of time for negotiation/ continued case preparation.

HO87

I may be making an incorrect assumption here but it sounds as though ACAS are already involved on your behalf. If so then I would allow yourself to be guided by them as to how to construct a figure to negotiate from - assuming that the aim is to come to a compromise agreement. If not then I would seek immediate guidance either from a solicitor (some may do this work under a conditional fee arrangement) or from your union/staff association or a freelance employment advisor. As with all such things these talks tend to start with the parties at opposite ends of a scale eventually agreeing on a figure somewhere in the middle. Most CA's will include a confidentiality agreement preventing them and you from disclosing any of the detail - usually for a set period.

However, their ploy may simply be an entirely understandable manoeuvre to establish how close to a figure, one way or the other, you would "walk away" for compared with their potential financial exposure should they lose at Tribunal allowing not only for any award that is made but their own costs including legal advice, management time, staff absence at hearings etc etc. It would be wrong to assume that they are making an offer because they believe they are in the wrong.

They will (or should) regard this as a business negotiation and you would do well to view it in the same light and so I would suggest you avoid trying to include any punitive element in the figure you construct. Tribunals are, after all, unpleasant processes and are stressful and very time-consuming for both sides but there will probably be a point beyond which the company will not be pressed and this is likely to be some way short of the maximum award plus costs simply on the basis that they will want to achieve a margin - its business, don't forget.

Do not be phased by the fact that your former employers are very likely to reject your first figure regardless of its merits if only to establish if you immediately counter with a reduced offer. They can always come back and say that their rejection was based on a misunderstanding.

Good luck and keep hanging in.

Nassy

Thanks. I realise that a settlement is not an admission of guilt - and that is what causes me a dilemma. A successful tribunal process would be more rewarding (in my eyes) as if a panel of people recognise my former employer was at fault, this carries a value beyond financial payout. Even if ultimately I wasn't successful (and I do believe with enough work I can pull off a result) I would still feel a sense of closure and that I did everything I could.

On the other hand, if a good offer is put on the table I'd clearly need to consider it. Especially if it is close to what I would likely to get if I won. I would get advice from a solicitor should negotiation start taking off.

Currently my final actual losses are uncertain but I am nearly 100% sure to face another period out of work before hearings that may not happen until well into next year. Unless the right amount is put forward I am best off waiting. At this stage I think I will go back to ACAS and tell them that if the other side puts something on the table, I will of course consider it. I will give them a very approximate idea of what I would want the other side to take into account in any offer.

Thanks again for your advice.

HO87

An entirely sensible outlook but don't underestimate the toll the whole process will take and this may leave you feeling very underwhelmed even in the face of a complete vindication at Tribunal.

I realise that I didn't make it clear in my initial response that should you progress with the compromise agreement discussions then you will have to have legal advice - this is a requirement of the process. You may be able to get your previous employers to cover the costs of this. If the agreement is straightforward and doesn't entail too much additional work then you shouldn't expect to pay too much more than £4 - 500. You do not have to use a solicitor but whether you use a accredited union officer/employment advisor they must have professional liability insurance.

holderness

Can I recommend an excellent book, Employment Tribunals, tactics and precedents and its website, etclaims.co.uk Even if you are using a solicitor its worth refering to, if you are not then its invaluable

Nassy

Thanks. I already have this book. It is good and it is what convinced me it was a good idea to serve a questionnaire... bit of a palaver though as I had to ask for 'leave of tribunal' which I got and then post it special delivery.

Given me a small taster of what lies ahead. Not heard any news of settlement so may be the advisor asking me what I will accept is nothing but a tactical move. I also sent a reply to ACAS , making it clear my door is open to talks but that I won't know what offer I will accept until it is actually on the table and I would then of course need lawyer's advice. I suggested I would be focusing on hearings since I trusted that if a settlement was in prospect that ACAS can take care of it.

The thing is, my former employer already asked me on an earlier occasion what outcome I was after (after my grievance was read). I laid out all the options including an option simply for me to have an opportunity to discuss my grievances and for them to disclose information (that a solicitor thought they should have already have disclosed) but they said 'No'! Therefore I am being cautious. I don't want them thinking I will wimp out without good reason. In any case I am not planning to.

If nothing else, by sending a questionnaire, I feel I am at least giving the impression that while I may be an amateur I am not just going to sit back and take a passive role in proceedings.

Thanks again for all the advice. I will see how it goes.

kiddy_guy

Ultimately what will make you feel better?

X thousand pounds in your pocket
or
less money but perhaps confirmation your old company shafted you?

You know that they did, anyone you care about will know the same, so take the big offer an move on.

I got made redundant, and I know it was a huge fix, but ultimately they paid me to sit on my backside for a year with the payout and I got a better more enjoyable job. No point trying to win a fight that you've already (potentially) won.

Nassy

Thanks. If a good or half decent offer comes along I will of course not simply dismiss it, just to seek the vindication of a court. I do appreciate that the court experience could be underwehlming and it is definitely becoming clear just how little active involvement tribunals actually take (since I have started doing direct dealing with them).

Anyway I haven't heard anything from the other side since I last posted so am just going to have to see what comes back on my questionnaire procedure and take it from there. It is very early days in the process but there are reasons why the other side will not be keen on hearings. First of all 2 of the 3 line managers involved have left (both key to the case) and the MD isn't a natural communicator himself. While they could bring in the line managers that left 1 of the line managers did not leave on good terms and that would be putting it mildly! Their HR is also inexperienced - so they would be heavily relying on their advisor. However if I am wrong then I will make sure I am prepared.