Consequences of loosing the case in Employment Tribunal

Wellery82

spacey2012 wrote: »

Sorry just to add, the letter threatening to sue, can be used as evidence of intimidation, threats to sue for what is at a judges discretion never go down well and the solicitor may be asked to explain the intimidation tactic.
If they are trying to fight now, they fear his case and may come up with an eleventh hour offer once they get no response to the threats.
If the case involves racial elements, do not forget to tip off the local press about the hearing.
If they want to play hard ball, hit it back.

I personally disagree with this statement based on my own experiences.

I work in HR and regularly attend tribunals or am involved in tribunal cases. Whilst i am sure certain behaviour can be viewed at intimidatory, i very much doubt the wording of a company letter, compiled by solicitors would be seen in this light. The solicitors are paid to ensure legal compliance, and it is very unlikely this letter would expose them in anyway. Certainly i have seen many letters of this sort and never seen any judge stating it is intimidatory, not to say that does not happen.

Also i do not feel the letter is indicative that the company "fear his case". They will not want to pay the associated costs with employing counsel for the day, and the time out of work for senior managers who may be involved. This is irrespective of whether they feel they will win or not. As such they believe the letter may hopefully cause an end to the situation or allow them to offer a small amount of cash, which sees a problem go away. It does suggest however it may be worth seeing if they will reach an agreement pre tribunal for a small amount of cash to settle if this was something you would consider

spacey2012

Nonsense, the decision to award any costs is entirely at the discretion of the judge, they are attempting to intimidate him by making out they are going to sue him for their costs, what else could that be other than trying to scare him off.
If this case has a racial element, that is what they fear, exposure and so they should !
Hence the advice to inform the local press.
They are allowed to cover these cases with the judges discretion, the look on their faces when they see a reporter waiting to go in has lead to many a last second offer to stay out of the arena.

Wellery82

spacey2012 wrote: »

Nonsense, the decision to award any costs is entirely at the discretion of the judge, they are attempting to intimidate him by making out they are going to sue him for their costs, what else could that be other than trying to scare him off.
If this case has a racial element, that is what they fear, exposure and so they should !
Hence the advice to inform the local press.
They are allowed to cover these cases with the judges discretion, the look on their faces when they see a reporter waiting to go in has lead to many a last second offer to stay out of the arena.

You say it is nonsense but i am only giving my experience from working in a variety of HR roles and also using company solicitors on a daily basis. I am sure the solicitors have worded the letter to ensure they are legally compliant, and will have vast experience in ensuring this is not viewed as intimidatory. I would suggest it is more likely to suggest the case is viewed as frivolous and vexatious by the solicitors, and the company do not want to waste their time with it.

As with anything however, this is an opinion, there isn't a right or wrong and all these things are circumstantial. I wouldn't personally start to think a letter like this meant a company were scared though, i ask our solicitors to send this kind of letter out often, and it is never a reflection i am scared we will lose the case.

Regarding the racial element i have not mentioned this at all, i would suggest this is dependent on the case if it is a good idea. A strong case then i agree it would probably help, a weak case then it may actually anger the company to the point they attempt to sue for costs

Uncertain

spacey2012 wrote: »

Hence the advice to inform the local press.
They are allowed to cover these cases with the judges discretion, the look on their faces when they see a reporter waiting to go in has lead to many a last second offer to stay out of the arena.

I would agree with this.

In fact the press and the public have a right to be present and it is only on the most exceptional grounds that they can be excluded. That said the vast majority of ETs attract no audience at all except maybe a law student or somebody getting a feel of things before their own case.

Encouraging the press to be there, if it is really newsworthy, is of course two edged. It may have the effect you want and encourage the respondent to settle but if not the publicity may make it harder for the claimant to get another job, win or lose.

Uncertain

Jimavfc82 wrote: »

i ask our solicitors to send this kind of letter out often, and it is never a reflection i am scared we will lose the case.

Although I'm aware that is common practice in my opinion it shows a total lack of integrity.

Personally I feel that type of threat should only be allowed with the prior approval of the tribunal judge to ensure that there are proper grounds. Given that cost are only awarded in about 1% of lost cases the vast majority of these type of letters are noting but legalised intimidation.

Wellery82

Uncertain wrote: »

Although I'm aware that is common practice in my opinion it shows a total lack of integrity.

Personally I feel that type of threat should only be allowed with the prior approval of the tribunal judge to ensure that there are proper grounds. Given that cost are only awarded in about 1% of lost cases the vast majority of these type of letters are noting but legalised intimidation.

I resent you questioning my integrity.

I work for a very large company, and given both the industry and size of the organisation we have a large amount of individuals claiming, simply on the basis they think it is worth throwing in a claim to get a few pounds. Often the claims have no merit whatsoever. This is particularly grating when you think of the cost and time involved in making a defence, when you believe that even the individual concerned does not believe the case.

The intent is not to be intimidatory, but to ensure the individual recognises there can be consequences behind raising a tribunal claim, it isn't simply a case of "i may as well as you never know i may get something". It should be done when they genuinely believe there to be a case. If i feel a case has some merit then i agree a cost warning letter is not appropriate.

I have no doubt these may be used in an intimidatory fashion. The point i was trying to make, based on my personal experience, is that a letter of this sort does not necessarily mean the company "fear the case" and it would be giving one side of an argument to let the original poster think such. Hopefully my comments were of some help and gave some balance as to why such a letter may be issued.

I also don't think the press are automatically a good idea. It is worth considering if the company feel the case has no merit whatsoever, and a judge agrees, and their name has been drawn into the mire because of it, then this is the exact kind of time they may attempt to chase costs. Again i am not looking to show "a total lack of integrity" or post "nonsense". I am trying to give a balanced argument based on personal experience

Pricivius

Costs warning letters should only be sent in very specific circumstances and be very carefully worded - any solicitor worth his beans will know this and will take great care to use this tool sparingly and properly.

There is case law covering the use of costs warning letters so it is widely known when they should be used and what they must contain. It is indeed risky to send them out as a matter of course.

Therefore, I would suggest that OP reads the letter carefully. It should set out the basis on which the company believes the case has very little or no prospect of success. Is there any merit to this? Have they missed a valid point? Try to be as neutral as possible when looking at this.

It rings alarm bells that the union have backed out - this suggests they no longer consider the claim to have a 50% chance of success. Witness statements without witnesses carry far less weight and it sounds like this has thrown your case into doubt. Still, the chance of costs being awarded against you is slim, but not impossible. It is a risk, albeit small.

I would have a think about making an offer to settle through ACAS - you have little to lose by trying this, and it may just work.

Uncertain

Jimavfc82 wrote: »

I have no doubt these may be used in an intimidatory fashion.

Exactly!

In the vast majority of cases that is precisely what these letters are.

Look at the statistics....

Only about 1% of lost cases result in an order for any costs.

About 40% of cases are won.

Vastly more are settled before a hearing.

So, it follows that it only in a fraction of one percent of cases is there any realistic chance of costs being awarded. Even then the amount is generally relatively nominal and a tiny fraction of what a company may have spent defending.

Therefore I stick with my view that to issue such a letter in all but the most exceptional circumstances is purely intimidatory and shows a lack of integrity.

You may well not agree with the current law. I totally accept that some cases are a pure try on, that is sad and also lacks integrity. However, the whole point was to give the aggrieved individual a fair and independent hearing regardless of their means. What is the alternative?

zzzLazyDaisy

Uncertain wrote: »

Unless I'm out of date, the maximum that could be awarded would be about £10K regardless of how much the other side had spent

Just for the sake of completeness....

If the claim was lodged before 6th April 2012 the maximum sum that tribunals have the power to award under costs awards and preparation time orders is £10,000. There is no cap for wasted costs orders.

For claims submitted to the employment tribunal on or after 6 April 2012, the maximum costs order that can be awarded is £20,000


There has also been a recent case that suggests that if an employer genuinely believes that the case has little prospect of success, and is considering making a costs claim in the event that the employee loses their case, they SHOULD send a costs warning letter, explaining why they believe the claim is likely to fail, and how much the claim for costs is likely to be. I will have a dig around, and post it if I can find it.

Edit - this isn't the actual case, but it is a useful summary.

http://www.parissmith.co.uk/reading-room/article/2012-04/recovering-costs-in-employment-tribunals/

Recent statistics show a slight increase in the number of costs awards against claimants, which suggests a slight shift in the attitude of tribunals to awarding costs, but the number of costs orders made over-all are still very low.

OP you should be aware that the tribunal will place little or no weight on a witness statement where the witness has not turned up to give evidence (after all, for all they know, you could have made it up). You can get a witness order compelling the person to attend and give evidence. Normally that can be a risky strategy as you often do not know what the person will say. But since you have a written statement anyway, in your case that is not much of a risk. You should contact the tribunal immediately if you wish to do this as the Order must be made and served on the witness, and that takes time.

Dx

keithrgj

Most solicitors letters for the respondent will state

"our anticipated costs" will be

i get these every week and as a rule, they are no more than bog roll with their implied context to get the claimant to withdraw their claim and have no substance in reality