Out of Court - Employment Tribunal Settlement

Lioness_Twinkletoes

bugslet wrote: »

Briefly, we were taken to an industrial tribunal where the employee was trying get over 40k.

As it got closer to the hearing date, we were advised by our solicitors to offer 7k, which at that point would be less than we would pay out for the costs of the hearing. Reluctantly we did offer. The employee turned it down and we went to the hearing.

He got 2k.

That of course doesn't mean that is a template for the outcome for you OP, but be aware that there are no guarantees.

Agreed. My husband took his employer to an employment tribunal. I was handling his case and was very confident we would be successful. Their case was a joke. However, we settled with a payment that amounted to half his yearly salary and a neutral reference before we had to attend the tribunal. I considered that a win.

SandC

How much have you lost in salary over this 9 months? I would be looking to recover loss of earnings plus at least 10% on top and would counter offer that to the CEO, also accepting the job back and see how it goes. They will probably be expecting you to negotiate with this, but in my mind you should have had full employment with them for that period of time.

Good luck.

bugslet

Lioness_Twinkletoes wrote: »

Agreed. My husband took his employer to an employment tribunal. I was handling his case and was very confident we would be successful. Their case was a joke. However, we settled with a payment that amounted to half his yearly salary and a neutral reference before we had to attend the tribunal. I considered that a win.

Our case wasn't a joke, so that probably explains why we ended up with the outcome we did and yours ended up the way it did. The award was actually made on a procedural technicality during the grievance procedure.

Having said that, the employee, along with his solicitors obviously thought that they had a good case.

From my little experience, tribunals are difficult to predict as a layperson and I suspect the lawyers are often surprised by the decisions made.

Derwent

Funnily enough, £9k is the average cost of an employer defending an employment tribunal. If I were the OP and wishing to close matters out completely I'd ask for the lost earnings amount and then an ex-gratia payment of around half of what their legal costs would be if it went to tribunal, so a base figure of £13.5k paid tax free via a COT3 agreement.

sangie595

Derwent wrote: »

Funnily enough, £9k is the average cost of an employer defending an employment tribunal. If I were the OP and wishing to close matters out completely I'd ask for the lost earnings amount and then an ex-gratia payment of around half of what their legal costs would be if it went to tribunal, so a base figure of £13.5k paid tax free via a COT3 agreement.

I would agree with this. Don't ever get carried away with tales of big wins. Big wins are news because they are rare. Have a look at the average and median awards - they are much more typical no matter how good your case might be, and they are in the region of £6-8k.

Personally I would forget about having to justify what it is for to the employer. Tell then you want £15k to go away, and be prepared to haggle. £15k is a reasonable step up from what they have offered without sending it into silly regions where they will stop talking to you. Be prepared to drop down, but if you haggle well you will end up closer to your figure than theirs.

lincroft1710

Richard6 wrote: »

shame on their barrister for trying to give you cold feet

No shame, that's what barristers do.

Crazy_Jamie

This thread aptly demonstrates how very dangerous it is to ask questions on an internet forum on a specialist topic, because people love to contribute and speak with authority despite having no clue what they're talking about. You have actually received some good advice in this thread. The problem is that it is mixed in with a lot of awful advice.

First of all, let's start with working our the value of your claim. You're bringing claims for unfair dismissal and disability discrimination. If you win those claims you will be entitled to damages under the following heads of loss;

1) Basic Award: This is an amount of money that you will receive based on a set calculation. You receive this independently of other heads of loss and in addition to loss of earnings. As it happens the calculation for the basic award in unfair dismissal cases is the same as the calculation for statutory redundancy pay, and you can find a statutory redundancy pay calculator here which will help you to calculate your basic award.

2) Compensatory Award: This is much harder to judge. It can be made up of any out of pocket losses arising out of your dismissal, but will generally be made up primarily of loss of earnings. You have a duty to mitigate your loss and should be able to demonstrate to the Tribunal that you have been looking for other work, but providing you can provide that evidence, you will generally receive your loss of earnings to the date of the Tribunal plus some further damages for future loss of earnings. The amount of future loss of earnings varies greatly, but is generally 3 to 6 months. There may be reasons in your case why it should be shorter or longer than that, but without further detail I clearly can't comment on that. There is a cap on unfair dismissal damages, but if you succeed in your disability discrimination claim the cap does not apply, so in theory you could claim for a number of years' future loss of earnings, albeit without a good reason the Tribunal is unlikely to make extensive awards in that regard.

3) Loss of statutory rights: A lump sum representing the fact that you will need to work for another employer for two years to be able to bring a claim for unfair dismissal again. It's claimed at anywhere between £400 and £600 these days, but around £500 is about right.

4) Injury to feelings: If you succeed in your disability discrimination claim you will also be entitled to an award for injury to feelings. These are roughly divided into three brackets called the 'Vento Guidelines'. Clearly not knowing what the discrimination is I can't assist you as to which bracket it will likely fall in to, but a description of the brackets and the sort of cases that fall into them can be found here.

If you determine a value for each of those heads of loss and add them together, you'll be able to come up with a rough valuation of your claim. In my view it is important that you do that, because for all of the talk in this thread of taking certain figures and adding 10% or 50% on, or plucking figures out of thin air, the reality is that a large part of the barrister's advice to the Respondent will be based on a realistic valuation of your case. There may well be other considerations, such as the legal costs that the Respondent will incur in fighting the claim, but the advice will be primarily based on what your case is worth.

Of course even when you have determined a rough valuation of your claim, you must also consider what that money will actually do for you. I have no idea how strong your case is, but the fact that a settlement proposal has been made to you does not mean that you will win, nor does it mean that you will receive more compensation if you do win. There are other arguments, such as contributory fault or Polkey arguments (you can Google both of those) that can reduce your award. There is always some risk in going to the Tribunal, and you must remember that an offer of settlement is an offer to effectively sidestep that risk and pay you guaranteed money. It is important that you therefore place the offer in that context as well as solely considering how much money is on offer.

The offer of returning to employment is one that you must also consider realistically. The first question is whether or not you feel that you could physically do that. If not, there is little point in considering that offer further. If you could, the points made in the thread so far about staying in the job to see how it goes, or in staying in the job whilst you look for alternative employment, are good ones. The fact is that any offer of employment is desirable to see degree because it offers stability in terms of income for a period, so again you must consider that aspect of the offer in context and in terms of what it would mean to you.

Of course you can haggle with the Respondent based on whatever reason you want, though I would advise that you have in your mind a reasonable valuation of your case while you are doing so. It may be that the Respondent is expecting you to haggle, but then again the offer may effectively be final. Ultimately there is no way of knowing, though generally speaking there will be little risk in advancing an alternative proposal, be that returning to work and slightly more compensation, or asking for more compensation and not returning to work. It's very hard to give any definitive advice on that issue though, because all negotiations are different and there is no way of knowing what would be suitable in your case.

Hopefully that has helped to a degree. Considering what you want out of this should be your priority. You obviously don't want to be short changed, but Tribunal proceedings are stressful, and it is also therefore very desirable to bring them to a conclusion and move on if that is at all reasonably possible. Good luck.

pioneer22

Speak to ACAS then speak to a free initial chat with a solicitor then ask them for a settlement for more than the 9k 13k sounds right via a COT3.

Good luck