ET Query,

Akoto

SarEl wrote: »

Oh dear. You have fallen for the old receipt letter phrase. I see it again and again. The letter you have received is not accepting your case - it is nothing but a "thank you we got your form". A receipt letter. Everyone gets one. So you are already treading on dangerous ground because the ET do not have jurisdiction to hear any claim arising from your employment - you signed away that rights; and they have no jurisdiction at all to enforce a compromise agreement. So any costs being wracked up by the employer to dfeend this action won't be a matter for the tribunal to award - they have no jurisdiction - but the employer can sue you for them in the civil courts. I would recommend that you withdraw the claim - it is foolish to take such a risk when the ET has no jurisdiction anyway.

Breach of a CA is a civil court matter, but it is also a matter which requires a higher level of evidence. If you intend to go down this route then you need to seek legal advice as to the merits of your case, even if you decide to represent yourself in court.

But there are also circumstances in which an employer cannot be held to the exact wording of a CA - and if you read the CA you will probably find that there are clauses dealing with this. Are you quite certain that none of these apply? For example, there are jobs or professions where an employer must disclose certain matters by law, and so the employer must comply with the law no matter what the CA otherwise says. Because it does appear to be a matter of "interest" as to why an employer who had received a perfectly good reference went on to follow that reference up with verbal conversations with the former employer at all.

Thanks. I assume you are a legal professional. So they would need to start a separate civil action to get their costs from me?

If the threat is very likely I will withdraw - have you ever seen a respondent sue for damages in the civil courts over costs racked up at the tribunal?

There was no legal requirement to disclose, of that I am certain.

Yes you are right it does seem strange that the new employer would query a perfectly decent reference. The answer is, of course, someone tipped them off via an anonymous letter saying I left via CA with prior issues and that they should check back with ex-employer. A copy of which I was given by the new employer incidentally. The new employer went back to check and additional information was disclosed. I'm assuming the tip off came from within the ex-employer in some way - otherwise how would the anonymous letter know about these things, and why would the new employer so readily disclose on further contact? I'm hoping the cumulative effect of all this will be enough to persuade a court of what it actually is - sabotage by former employer, but I'm not expert in these matters. You're right professional advice does seem the way to go - but I simply don't have the money!:(

SarEl

Akoto wrote: »

Thanks. I assume you are a legal professional. Yes. A barrister in employment law, but I don't make anything of it - people can take my advice or leave it. It's just that several of the regulars know what I do because it comes up from time to time.

So they would need to start a separate civil action to get their costs from me? Yes

If the threat is very likely I will withdraw - have you ever seen a respondent sue for damages in the civil courts over costs racked up at the tribunal? Yes - most often as a countersuit. So you sue them - they sue you. In your circumstances it is not worth the risk - you could end up with a stalemate in which the courts decide you are both right, and anything you win could be wiped out or more than wiped out by their win. You have seen what legal costs are these days?

There was no legal requirement to disclose, of that I am certain.

Yes you are right it does seem strange that the new employer would query a perfectly decent reference. The answer is, of course, someone tipped them off via an anonymous letter saying I left via CA with prior issues and that they should check back with ex-employer. A copy of which I was given by the new employer incidentally. The new employer went back to check and additional information was disclosed. I'm assuming the tip off came from within the ex-employer in some way - otherwise how would the anonymous letter know about these things, and why would the new employer so readily disclose on further contact? I'm hoping the cumulative effect of all this will be enough to persuade a court of what it actually is - sabotage by former employer, but I'm not expert in these matters. You're right professional advice does seem the way to go - but I simply don't have the money!:(

Aha - we have had this one before. An anonymous letter is evidence of nothing, whether you have a copy or not. Your assumption is not legal evidence and will not be accepted as such. Anonymous means exactly that - you would need to evidence (a) who sent it and that it did indeed originate from your former employer and (b) that the employer was complicit in its being sent. It is not sufficient even to prove that an employee of the former employer sent the anonymous letter - you must show that the employer knew about this. Otherwise it is the action of an individual - which you are entitled to make a complaint about (assuming you could identify that it was certain an employee did it) but which is not the responsibility of the employer.

The knock on effect of this is that the evidence of the potential employer is tainted - they already knew the information and you have no evidence that they obtained the information in the way that they said they did. They may indeed have phoned specific people at the former employer - but there is nothing but their word against the former employers that anything was said at all. It is just as arguable that the staff concerned said "No comment" and the potential employer read into that confirmation of what they already knew. And this leads you to a further evidential challenge - is the potential employer willing to attend court on your behalf and give evidence that this was what was said and that what they have written is true. Because evidence isn't evidence without a confirmatory witness. If the former employer attends court with their staff, who take the stand and swear under oath that they did not say what is written in this document, the document is worthless unless someone can take the counter argument - "I was the person this was said to, and I swear that it is true and that this was said to me by XX". Only at that point can a court be in a position to decide who they believe and who they don't. And somehow I think the potential employer isn't going to be sending their employees to court to defend your claim.

And losing in a civil court could bankrupt you - if you cannot afford legal advice, never mind legal expenses, then the cost of losing is also something that you absolutely cannot afford. On that basis, I would suggest that you cannot afford not to take legal advice on the merits of any claim. What you are proposing is very risky.

It is possible that your local CAB may have solicitors or barristers available for one-off advice on a free basis, or that you could get a free introductory session. If all else fails, no-win no-fee solicitors can provide a useful barometer of your chances. They will not take a case on unless there is a reasonable prospect of success, because they aren't going to be spending their money on your case unless there is a prospect of getting it back! They may not be the most popular people in the world, but then beggars can't be choosers - and even if they do think there is a prospect of winning, it doesn't mean you have to sign up with them. You can still do it yourself. But if they won't touch it with a bargepole, you'll know why!

Akoto

SarEl wrote: »

Aha - we have had this one before. An anonymous letter is evidence of nothing, whether you have a copy or not. Your assumption is not legal evidence and will not be accepted as such. Anonymous means exactly that - you would need to evidence (a) who sent it and that it did indeed originate from your former employer and (b) that the employer was complicit in its being sent. It is not sufficient even to prove that an employee of the former employer sent the anonymous letter - you must show that the employer knew about this. Otherwise it is the action of an individual - which you are entitled to make a complaint about (assuming you could identify that it was certain an employee did it) but which is not the responsibility of the employer.

You mean I could sue that individual employee?

The knock on effect of this is that the evidence of the potential employer is tainted - they already knew the information and you have no evidence that they obtained the information in the way that they said they did. They may indeed have phoned specific people at the former employer - but there is nothing but their word against the former employers that anything was said at all.

But that's not the case as the letter said very little beyond phone up the former employer and check him out.

The withdrawal letter, however, goes into great detail about what was divulged on contacting the ex-employer including a line by line appraisal of my personnel record! Where else could that employee information have come from?

And assuming the evidence itself is tainted, could I have a claim against new organisation?

SarEl

You cannot sue an individual employee - they are not party to the CA.

You are still needing legal advice on the spcifics of this - the fact that an employee may have divulged information in a phone call is still not eveidence that the employer knew about this or permitted it. An employee breaking the "rules" (assuming they knew a CA was in place) is a disciplinary matter at the very least, but is still not evidence that the employer acted wrongly.

And no, you can't sue the new employer - they haven't done anything! They have no legal or other obligation to you.

Akoto

SarEl wrote: »

You cannot sue an individual employee - they are not party to the CA.

You are still needing legal advice on the spcifics of this - the fact that an employee may have divulged information in a phone call is still not eveidence that the employer knew about this or permitted it. An employee breaking the "rules" (assuming they knew a CA was in place) is a disciplinary matter at the very least, but is still not evidence that the employer acted wrongly.

And no, you can't sue the new employer - they haven't done anything! They have no legal or other obligation to you.

Thanks I will take your advice. Although I'm kind of struggling to see who exactly 'the employer' is if not senior management in the organisation.

SarEl

Akoto wrote: »

Thanks I will take your advice. Although I'm kind of struggling to see who exactly 'the employer' is if not senior management in the organisation.

F F F - something! I just spent ages (about 20 minutes) typing up a post trying to explain this, and even apologising if it seemed patronising - and the bloody site ate it! Look, what I said in the end is - I don't often do this but if you want to take this to PM and off the thread so that you can tell me the details that would identify you, that's ok - but on the strict understanding that I will not give you legal advice - just informed opinion - and that I will not take on any case because I don't tout for business. I only try to help people out. That's it.