Consequences of loosing the case in Employment Tribunal

katekat

Thank you for all your responses and expertise. I had a closer look at the letter of a threat (without prejudice though) and they gave no explanation why they think they have strong case to win, just stated they reviewed all the documents with their solicitors and are prepared to fight the case to the end. The said their cost will be in excess of 5k for barrister etc. They also referred to the case Power vs Panasonic (10k of cost awarded) which I googled to find out our case has nothing in common with the reason behind mentioned case.

Another thing is they way they make it difficult to us since we lost the representation. They are refusing to include most of the documents from our side to the bundle (which they were ordered to prepare), the bundle is still not completed by them, with no proper document index (no doc names, page numbers) so we had to compile our own bundle to be able to write the witness statement of my OH - being able to refer properly to the docs. They included an incomplete list of issues with one page missing and they still argue they did their job... Really really painful to do anything with this circumstances.

We asked ACAS to try to mediate and propose settlement but they refused to pay any money... I think they are just over confident knowing we have no representation and thinking they will get away with a bundle containing only documents put forward by themselves...

Another question - they asked us for schedule of losses - what should we put is my OH is still employed there? The only loss was moral and mental health and that he loath to work there but he no choice as it is hard to find another job...

zzzLazyDaisy

katekat wrote: »

Thank you for all your responses and expertise. I had a closer look at the letter of a threat (without prejudice though) and they gave no explanation why they think they have strong case to win, just stated they reviewed all the documents with their solicitors and are prepared to fight the case to the end. The said their cost will be in excess of 5k for barrister etc. They also referred to the case Power vs Panasonic (10k of cost awarded) which I googled to find out our case has nothing in common with the reason behind mentioned case.

If you lose and they ask for costs, you should refer the tribunal to the Delaware case above (print a copy out and take it with you just in case) and tell the tribunal that you submit that they failed in their duty to explain to you why they believed that you had no case, especially bearing in mind that you are unrepresented.

Another thing is they way they make it difficult to us since we lost the representation. They are refusing to include most of the documents from our side to the bundle (which they were ordered to prepare), the bundle is still not completed by them, with no proper document index (no doc names, page numbers) so we had to compile our own bundle to be able to write the witness statement of my OH - being able to refer properly to the docs. They included an incomplete list of issues with one page missing and they still argue they did their job... Really really painful to do anything with this circumstances.

Write to the tribunal NOW and say that you are forced to seek the tribunal's assistance because the respondent is refusing to include your documents in the bundle, has failed to provide you with a bundle of documents, or even a completed index, and that the list of issues they provided has one page missing, and the tribunal hearing is now only two weeks away and you are unable to properly prepare your case owing to the respondent's failure to comply with directions, and ask for an order that they deliver a properly prepared bundle of documents which includes the claimants documents, together with a complete list of issues immediately. Include any relevant letters/emails that show you have asked the respondent or their solicitor to put this right.

We asked ACAS to try to mediate and propose settlement but they refused to pay any money... I think the just over confident knowing we have no representation and thinking they will get away with a bundle containing only documents put forward by themselves...

Another reason for bringing this to the immediate attention of the tribunal

Another question - they asked us for schedule of losses - what should we put is my OH is still employed there? The only loss was moral and mental health and that he loath to work there but he no choice as it is hard to find another job...

Ah! That explains why your witnesses don't want to get involved - presumably they are also still employed by the respondent?

Asking for a schedule of loss is a standard letter. Just reply saying:

With regard to your request for a Schedule of Loss. As you will be aware, I am still employed by the respondent and have therefore suffered no loss of wages. With regard to Injury to Feelings, I seek such sum as the tribunal deems fit having heard all the evidence. I trust this is sufficient for your purposes but if you require further information please do not hesitate to contact me.

If you wish to argue that their conduct has caused him injury or harm to his mental health you should obtain a medical report from your GP and/or his consultant backing up that claim.

Hope this helps

Dx

ValHaller

zzzLazyDaisy wrote: »

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.

I would be for calling the witnesses by compulsion if necessary. You only have to get them to support their own statements. The other side are in a bit of a bind here - the statements are already made. All they can do is either accept the truth of the statements and try to interpret them in a different light - or make out their own employees to be liars. The latter comes with a cost in terms of internal and indeed external reputation.

zzzLazyDaisy

I agree that where the witnesses have already given a written statement, then it is sensible to get a witness order (I have already explained to OP how to do this above).

However, where a claimant believes that a witness can and should support his case, but does not have a written statement and the person is refusing to attend, it is a very risky strategy to force them to attend and give evidence. The reason is that - except in very exceptional cases - you cannot cross examine your own witness. So you ask a question and they answer and you don't agree with their answer - you cannot cross examine them on it. You also cannot lead your own witness, so you really are stuck with their answer. That is why witness statements are so important - you know what your witness is going to say, and if you want them to go into the facts further, you make sure it is in their statement. On the other hand, the respondent (who may also be the employer) CAN lead the witness, and CAN cross examine them, so with no statement to refer to and a witness who is scared of losing their job, it is not difficult for a good advocate to lead the witness to say things that help the respondent's case.

katekat

Thank you so much for all that contributed so far.

zzzLazyDaisy - thank you so much for your advise - especially about schedule of loss. We already been in touch with the tribunal regarding the bundle, but not in much detail - just informing we have difficulties.

We have not even exchanged witness statement, but this morning for the first time they changed their story and said they want to settle. They proposed £1000. We want to settle but for a bit more money but not sure what is reasonable (some advice we got said we are in the middle band - between £6,000 and £12,000), but there is no cap. Even Any advice on how to play it? They gave us til 5pm today to reply.

Another question is about informing the press, just in case we don't settle. I think woman from Union told us that if we inform the press it will reflect bad on us and might afect the outcome of the case. But it is fine for someone to inform the press on our behalf. How should we go about it?

I was busy working on the witness statement and bundle all weekend, it is a nightmare. They reply to me today (before they came back with settlement offer) that " Should you persist with these requests and or continue with your proposals to produce an alternative bundle, we shall apply to the Tribunal for your case to be struck out. "

This is soooooooooooooo stressful!!!!!!

emsywoo123

I see Daisy's light is red SarEl would be another good one to help here......

Uncertain

emsywoo123 wrote: »

I see Daisy's light is red SarEl would be another good one to help here......

Indeed she would but, sadly yet again, one or two ignorant idiots have largely driven her away.

Uncertain

katekat wrote: »

I was busy working on the witness statement and bundle all weekend, it is a nightmare. They reply to me today (before they came back with settlement offer) that " Should you persist with these requests and or continue with your proposals to produce an alternative bundle, we shall apply to the Tribunal for your case to be struck out. "

This is soooooooooooooo stressful!!!!!!

There really should be a law against solicitors writing these type of intimidatory letters! Basically they get away with it by using words like "apply". Obviously they can apply for pretty much anything but that doesn't mean they will get it! I could apply to become an astronaut...........

Hopefully Daisy will see this and reply shortly. Don't read too much into the offer to settle. It doesn't necessarily mean they think they will lose. What they do realise (although they would rather die than admit it) is that they have no realistic chance of getting their costs. Many, many winnable cases are settled simply because it is cheaper.

Pricivius

If your advice has suggested the middle band, then you need to consider a few things:

- this was probably before you lost all your witnesses
- this is what you might be awarded if you won

The offer made to you is based on your case now, which as you have suggested, is no longer union-backed due to loss of witnesses. The union reckon it is weak. So, £6k-£12k if you win, but your chances are lower. Plus it is if you win - you may not and may end up with nothing. That is called the litigation risk and the offer will always take this into account - you accept £x now or take your chances on possibly more later. Or nothing.

If £1k is their first offer, I would try for a higher figure, but I would be realistic. They don't want to attend as it costs in terms of barrister and witness time out of the business. But they won't throw silly money at it - there's a tipping point. You also need to be quick - the time limit will be because they will have to instruct counsel soon and once they have done so, the costs are incurred. They want to avoid this but the window of opportunity is small.

You also need to bear in mind that you are playing with your husband's current employer and this makes things difficult. He has to work with them going forwards so you may want to consider how they will take a rejection of the olive branch they appear to be holding. You are already stressed with the preparations and you still have a way to go so what is this worth to you?

As for the press, I would advise against it. Particularly in light of your husband still working for them.

zzzLazyDaisy

Hi Sorry I have been offline and have only just seen this.

First I have to make it clear that without access to all the papers, statements, evidence etc, it is impossible for me to give any meaningful advice on quantum (ie the amount of compensation you might expect to get if you win). But, on the information you have given us, I would make these comments:

1 An offer to settle should NOT be taken as any sort of admission of liability, or indication that they think they will lose. An offer at the level of £1000 is a 'commercial settlement'. In other words, it is going to cost them more than that in solicitor's fees, and lost management hours to take this case to tribunal. Any settlement would be expressly worded to make it clear that the payment is made on the basis of no acceptance of liability, and would probably also contain a 'gagging clause' (you can't discuss the settlement with anyone.

2 You can only get compensation if you win the case. Sorry to state the obvious, but people do tend to lose sight of this. There is never any guarantee in litigation and there is no such things as a 'cast iron case'. There is also no halfway house - you win or you lose. If you lose, you get nothing.

3 The fact that your trade union has withdrawn from representing you is a very bad sign. It shows that their legal advisers take the view that you have a less than 50/50 chance of success. How they have come to that conclusion, I can't say, as I don't have privy to the information and documentation that the union's legal advisers have. But I can tell you that, when I was in practice as an advocate in tribunals I represented some household name employers which recognised unions and had collective agreements. I never came across a single case of an employee winning a claim after their trade union had withdrawn from representing. That does not mean that you will lose your case, of course I can't say that. But the odds of winning have shifted against you, firstly because unrepresented claimants tend to be less successful because they don't usually have a grasp of the relevant legal issues. and secondly the fact that their legal representative has withdrawn inevitably sends a signal. Now the tribunal is not supposed to drawn any inference from this. Whether in fact the tribunal is influenced, you will never know. But for whatever reason, statistically, your case does not have the same chances of success as it might have done if your trade union was still in there fighting your corner.

4 Obviously I don't know who advised you that compensation is likely to be in the region of £6k to £12k, and I don't know on what they based that forecast. But as I say, first you have to win. And secondly, to be in that range for injury to feelings alone the effects of the discrimination would need to be backed up by medical evidence. Bear in mind also that injury to feelings awards in race discrimination cases is on a downward trend and the median in 2011 was around £4000.

5 A bird in the hand, etc. £1000 is a starting point. You might go back with (say) £4000 and settle somewhere in the middle. You might also be able to get concessions written into the settlement agreement, which might not be achievable at a hearing (I don't know enough about the case to know what that might be, but lets say that you don't want to work with joe bloggs as you feel he is an instigator - you might be able to get an agreement that from now on you will answer to a different manager or that you can move to another branch or department).

As I say, these are just general comments. This is not in any way intended to be advice, I simply do not know enough about the case for that. But it might give you some aspects to consider that you might not have already thought of.

Good luck, whatever you decide to do.

Dx