ET Case won - remedy to be agreed between parties

katekat

Hello Daisy,

Thank you for your advice. I have found a guideline from one of the solicitors firms on 'Remedies in the Employment Tribunal'. On injury to feelings they say: "Incases where more than one type of discrimination is found to be proven then the tribunal should consider each wrong separately and value the injury to feelings accordingly. However at the end of that excersise it must consider the global sum and ensure that it is proportionate to the matters found and there was no double counting".
That made me think that we coul asses each of the claims separately. I wonder if it could be assessed that let's say race was in highest band and part time workers in the middle?

It is very difficult to decide what sum to look for, especially that we have 21 days agree the sum with the respondent, and if that fails, we need to apply for the hearing. From expierence, is it more beneficial to let the tribunal decide the remedy or try to agree without the hearing?

Also, you mentioned the case where the costs were awarded to the Respondent - could you send me a link to this case? It is so difficult to find the cases which I could relate to, shame they only publish EAT decisions, not ETs.

Once a goain, thank you for your input in our case.

ValHaller

katekat wrote: »

Thank you for your advice. I have found a guideline from one of the solicitors firms on 'Remedies in the Employment Tribunal'. On injury to feelings they say: "Incases where more than one type of discrimination is found to be proven then the tribunal should consider each wrong separately and value the injury to feelings accordingly. However at the end of that excersise it must consider the global sum and ensure that it is proportionate to the matters found and there was no double counting".
That made me think that we coul asses each of the claims separately. I wonder if it could be assessed that let's say race was in highest band and part time workers in the middle?

I would say that you should assess the claims individually and come up with a cash sum.

What the guidelines are saying is that the wrongs should be considered individually, but you don't get the total sum by straight forward arithmetic addition. I suggest you rank the individual claims biggest first and then consider the others in the light of the damage addressed by the first claim.

So keeping it simple

• Direct race discrimination £20,000
• Victimisation for raising a grievance on protected grounds £5,000
• Discrimination due to part time workers status £5,000

I would say £20,000 for the first and £5,000 for the second. They are distinct acts and the victimisation for the grievance would not have happened with the other claims. But I would let the £2,000 go for the part time worker discrimination as it is probably a different route to the same acts of discrimination as the race issue. Total £25000

I am sure a professional would disagree with how I have done it, but I think that the ideas are about right.

Firefox1975

£4,500

next..................

Takeaway_Addict

ValHaller wrote: »

I would say that you should assess the claims individually and come up with a cash sum.

What the guidelines are saying is that the wrongs should be considered individually, but you don't get the total sum by straight forward arithmetic addition. I suggest you rank the individual claims biggest first and then consider the others in the light of the damage addressed by the first claim.

So keeping it simple

• Direct race discrimination £20,000
• Victimisation for raising a grievance on protected grounds £5,000
• Discrimination due to part time workers status £5,000

I would say £20,000 for the first and £5,000 for the second. They are distinct acts and the victimisation for the grievance would not have happened with the other claims. But I would let the £2,000 go for the part time worker discrimination as it is probably a different route to the same acts of discrimination as the race issue. Total £25000

I am sure a professional would disagree with how I have done it, but I think that the ideas are about right.

why 20k? Where did you get that figure from or did you just feel that is appropiate?

zzzLazyDaisy

katekat wrote: »

Also, you mentioned the case where the costs were awarded to the Respondent - could you send me a link to this case? It is so difficult to find the cases which I could relate to, shame they only publish EAT decisions, not ETs.

Once a goain, thank you for your input in our case.

Yes, sorry it slipped my mind. It is the Simms case, here is a summary...

http://www.workrep.co.uk/news/costs/simms.html

Also, just for info, you can only refer to EAT, Court of Appeal, and House of Lords decisions because higher courts bind the lower courts, but individual tribunal decisions are not binding on any other court or tribunal, so they have no relevance to any other case.

zzzLazyDaisy

ValHaller wrote: »

I

I am sure a professional would disagree with how I have done it, but I think that the ideas are about right.

I don't think anyone would disagree with your thought processes.

The simple fact is that calculating injury to feelings is not an exact science, and the UK tribunals are not generous in their awards. For example, in 2011, the average award in race discrimination cases was £4,000.

The Vento guidelines are just that - guidelines, and there s a lot of room for discretion within the bands. If it goes to the tribunal to decide, you'll never get a calculation or any satisfactory explanation of how the figure is arrived at.

Personally I very much doubt that the total award will go into the upper level of the vento guidelines. Simply because it is very rare for this to happen in tribunals.

However, be aware that injury to health may be a separate head of claim in addition to injury to feelings (vento deals only with injury to feelings) but you must make sure there is no overlap between the two. If your medical evidence is strong enough to show actual injury to psychiatric health, you may want to consider this.

Be aware, if you claim injury to health, you forfeit the right to make a personal injury claim in the high court (tribunals cannot deal with personal injury claims and traditionally make lower awards than the courts - but on the flip side, it would be a stressful business starting the whole shebang again in the high court!)

This article might help

http://www.theemploymentlawsolicitors.co.uk/racediscriminationclaims.php

I think that rather than opening the negotiations I would invite the respondent (through ACAS) to make a first offer - on the basis that you can always negotiate up from their offer, but if you open, the only way is down! but I'd clarify that by saying 'bearing in mind that ......... (and point out the salient points ie, that you'll be looking for an offer in the (say) upper mid range of the vento guidelines as this was not a 'one off' incident, and if appropriate quote anything the tribunal said in the decision - eg - that they find this was a campaign of harassment by the manager, or whatever.

On that point, if you have not yet received the written decision, chase and keep chasing, as it will/should contain full written reasons and there may well be remarks by the judge that may assist in justifying the figure you are looking for.

Dx

EDIT - OP now that you've got this far, I do wonder if you might be well advised to invest some money in getting a specialist employment lawyer to go over the figures and maybe even do the negotiating for you. But without the written decision, you'll be wasting your time and theirs, as they will need a feel for the case before they can form a view.

katekat

Just a quick post refering to the written decision - we have got one with almost 90 paragraphs detailing all the reasons.

I was looking at Jumard vs Clywd leisure Ltd with regards to separate claims for different types of discrimination - very similar circumstances in our case.

And than you for a very good idea on proposing to open the negotiations by the respondent.

zzzLazyDaisy

katekat wrote: »

Just a quick post refering to the written decision - we have got one with almost 90 paragraphs detailing all the reasons. .

Okay, in that case look for all comments by the tribunal that place the respondent in a particularly bad light.

Any references to dishonesty in evidence, cover-up, deliberate racist conduct, the employer knowingly turning a blind eye to what was happening, that sort of thing. Similarly, if they are saying 'while we agree this was discrininatory, we accept that the employer was not knowingly complicit and acted quickly once these matters came to their attention' (tribunal judges want you to settle, and will often give clues in the decision as to which way they are leaning).

ValHaller

Takeaway_Addict wrote: »

why 20k? Where did you get that figure from or did you just feel that is appropiate?

£20,000 is missing the point. It is about how to apply the guidelines for a number of costed lines of compensation.

Takeaway_Addict

ValHaller wrote: »

£20,000 is missing the point. It is about how to apply the guidelines for a number of costed lines of compensation.

I wasn't having a go, I was genuinely interested in how you got to that number.