Sexual Discrimination tribunal claim

mauritius123

Hi all,

I'm currently trying to help a friend who suffered sexual harassment by her manager in her previous role (not the serious type...but medium)...she took legal advice prior and was informed that the value of her claim was £3,000-£8,000, but that no sols would take it on (no win no fee) because it would cost to much.

14 days after submitting the ET1, ACAS has informed that they are willing to make an offer of £800 (this is really low considering what happened and the effect on her) and she hasn't received the ET3 yet

Any advice on how to respond would be great. The low offer has really thrown me.

also can i speak with ACAS (im just a friend not a solicitor) and tell them about the impact and what i believe would be fair? as i dont think coming from her would sound right compared to having a rep.

Either way any sound advice would be appreciated.

Many thanks in advance

sniggings

I'm no expert but I would think you need to prove your case before talking about the impact it has had on her to acas.

Pricivius

Give Your friend's ACAS conciliator a call and ask if they'll speak to you as her rep. As you're probably not on Tribunal record, they are likely to ask your friend for authority to speak to you, but ask them - they won't bite.

As for the offer, you don't need to discuss impact with ACAS - you don't need to convince them of the value of the claim as they have no sway. They are a go-between in a negotiation process. I would simply state that the offer is rejected as your friend has received legal advice which places a higher value on her claim. Then either make a counter-offer, or invite them to make a further offer.

As for the value when settling, take into account the time, effort and stress of continuing through tribunal, taking time off for the hearing, the litigation risk that your friend might lose and the possibility that if she wins, the value may well be lower once everything has come out in the wash during the hearing. Be realistic and seriously consider what it's worth to her to have this all put to bed. In other words, principles are stressful and expensive...

mauritius123

many thanks Pricivius, lovely response,

zzzLazyDaisy

I agree with Pricivius.

I would also add that there is no compensation due at all, unless she wins her case. And despite how strong the case may seem at this stage, it is impossible to forecast how the evidence will pan out on the day of the hearing. Remember that the vast majority of cases are decided on the facts - and there is no appeal against a decision of fact. So even if the tribunal believe the wrong person and make the wrong decision in your view, there is no right of appeal. Simply put, there are no guarantees in litigation.

As for the £800 - please do not view this, in any way, as an admission of liability by the employer. It is almost certainly a commercial decision - which is to say that it is going to cost them money in solicitor's fees to deal with the ET3 and subsequent proceedings, and they are almost certainly simply looking to minimise costs and inconvenience at this stage.

Also, please bear in mind that sex discrimination is quite difficult to prove - in 2011/12 of 14,700 SD claims filed, only 290 claims were successful at hearing, with a further 4,500 settled through ACAS (many of which would inevitably have been commercial settlements). That leaves a lot of claims that were either unsuccessful, withdrawn, or struck out. The median award for 2011/12 was £6,746 - so hoping for an award approaching £8000 may be optimistic.

I am not saying this to put you off, but you (and she) do need to understand what you are up against. I certainly would not suggest that you accept the first offer - it is worth going back with a counter offer through ACAS on the basis that they will probably seek to knock you down to a lower figure - but please remain realistic. The best outcome will almost certainly be for her to avoid the stress of a tribunal and to receive some recompense for what happened.

The other plus of settling through ACAS is that she can negotiate an agreed wording for a reference (assuming she has left that employment?) whereas a tribunal has no power to order a reference.

Hope this helps

Dx

mauritius123

Many thanks Lazy,

some great advice

Just some other points, we also put in a protective disclosure claim as she complained to 2 senior managers about the harassment and they didnt take it seriously. She was let go shortly after.

Could you advise on a figure we should be aiming for? and indeed even a counter offer figure?

You are certainly right about the commercial reasons, ACAS mentioned this in their letter.

many thanks

zzzLazyDaisy

I am sorry, but it is impossible for me to advise on figures since I know nothing of the facts of the case. In fairness until statements and documents are exchanged it would be impossible for anyone to give you a reliable view on the prospects of success, let alone on a likely figure for compensation. Although there are guidelines, there is no mathematical formula.

I also don't know anything about her financial losses (Is she still out of work? Has she got another job? Was the reason for her dismissal related to the SD complaints - overtly or on the balance of probabilities, or was there some other reason that might be viewed as genuine?)

By 'protective disclosure claim' I am assuming that you mean protected disclosure/whistleblowing claim?

Which leads me to think that she probably did not have the required minimum service for an unfair dismissal claim, and is claiming that the real reason she was dismissed was that she complained about the harassment?

If you can clarify the above points it would be useful, but even then I won't be able to give you any more that a very rough ball park figure to be looking at. I'm afraid that's the nature of the beast at this stage.

mauritius123

Hi Lazy,

I understand what you mean without knowing the facts.

She was there for 6 months (contracted for that period), but was expected to stay on past this (in fact she was given permission to take leave at a future date). A few days after complaining of Sexual harassment, they made the decision to let her go. As far as I am aware there was no other potential reason, and upon her leaving there was nobody to cover her duties.

protected disclosure (thanks for correcting me).

Her financial losses were minimal as found a role soon after (2 weeks or so).

I understand that you can't offer realistic figures, but given legal representation is unlikely, would be helpful to have a figure to work with.

zzzLazyDaisy

Thanks, that's useful.

Okay, first I think she will lose on the whistleblowing claim because this doesn't count as a 'qualifying disclosure'.

When exactly was she dismissed? If less than three months ago, I am inclined to suggest amending the ET1 to deal with this point.

If she is already outside the 3 month period, no worries, for practical purposes it probably doesn't make a lot of difference.

mauritius123

She is still within the 3 months of dismissal. So should she contact the tribunal and withdraw the whistleblowing claim?

Thanks

zzzLazyDaisy

At the moment I wouldn't bother withdrawing the whistleblowing claim, as she is not represented and not expected to know any better.

However I suggest that she applies to amend her claim to include

'Automatic unfair dismissal and sex discrimination by the respondent company in dismissing her for unlawfully discriminatory reasons relating to her complaint of sexual harassment against her manager, Mr [xxx]'

Also to add Mr [xxx] personally as a respondent to these proceedings.

I am assuming that she was paid all money owing to her (notice pay, any outstanding holiday pay, outstanding expenses etc) ?


EDIT - the reason for adding the automatically unfair dismissal claim is that the tribunal can still find in her favour on the unfair dismissal claim if they accept that her complaint against the manager was the real reason for the dismissal, even if they find against her on the harassment allegation.

So this will strengthen her case for negotiation purposes.

She doesn't need any special form to amend the ET1, she just needs to write a letter to the tribunal quoting the case name and number, and saying she respectfully seeks leave to amend her ET1 as follows: (and then set out the two amendments as above)