Employment Tribunal Advice Please

JReacher1

Converse20 wrote: »

So should I make an offer of more than I actually want? Assuming that they will reduce it?

You just need to get an offer on the record. Currently it seems like only one party is prepared to negotiate.

Personally I would just ask for what i want.

Converse20

Do you think I should go through ACAS mediators or just do it by email? And should I do it without predjudice save as to costs like they did?

Crazy_Jamie

Converse20 wrote: »

I was dismissed at 102 weeks and 6 days without notice. I was informed of my dismissal by letter and email at 103 weeks and 3 days.

It's the date that they inform you that counts, so you have ordinary unfair dismissal to fall back on in addition to the protected disclosure argument. In which case even if your claim that the dismissal was due to the protected disclosure falls away, you may still be found to have been unfairly dismissed if the procedure, investigation or decision to dismiss you were outside the range of reasonable responses. In other words, you should prepare not only to advance your case as regards the protected disclosure, but also to independently deal with any flaws in the dismissal itself as well.

Converse20 wrote:

As I was dismissed following a qualifying disclosure, I know that this is irrelevant. Would it help or hinder my case to bring this up?

For the reasons stated above, it may help greatly. The onus is on them to show a fair reason for dismissal. You do not have to prove the reason for the dismissal in order to succeed in an unfair dismissal claim. It is highly relevant that you can claim ordinary unfair dismissal.

JReacher1 wrote:

They've offered you two settlements and you haven't engaged. You need to get on record what you want.
Otherwise it looks that they are being reasonable and you won't negotiate.

I don't agree that it looks like they've been reasonable. Unless this is a particularly weak or low value case, and we have nothing to suggest that either is the case, it is highly unlikely that a Tribunal would criticise a Claimant for not accepting either a drop hands offer or a nominal nuisance offer. Unless the other side can somehow justify £500 as being a realistic valuation of the OP's case, which I would have thought is highly unlikely at best, the Tribunal isn't going to view that as a genuine offer to settle. I also don't understand the comment that the OP will look unreasonable even if they win; unless the offer was for more than the OP gets when they do win, it would be an extremely unusual situation where there could be criticism of a successful party for not settling sooner.

That said, I do agree that it would make some sense to put forward a more realistic offer. You have to realise that offers to settle are attempts to compromise on the claim. Suggesting that you walk away with nothing or settle for a few hundred pounds is not a genuine attempt to settle the claim because it isn't realistic, but neither is saying that you want what is in your schedule of loss. Both of those are unrealistic positions. It makes sense to at least make some attempt at genuinely settling the case. Generally speaking most trials are a 50/50 proposition because no one knows how the witness evidence is going to go and how it may affect the case as a whole. As such it may be playground negotiation to suggest that you consider what a realistic valuation of your case is if you win and half it to get a settlement offer, but that's often not too far from the mark. There's no need to be concerned about them trying to negotiate you down, because there's nothing to stop you just rejecting any further offers that they make. But it may kick start the process to offer something more realistic; right now neither of you is being realistic, which doesn't give this case any prospect of settlement at all. Consider what your bottom line would be, and go in higher than that, but still with an eye on keeping things realistic.

steampowered

Converse20 wrote: »

So do you think that I should make an offer to settle? Would this not be perceived as me seeing my case as weak?

Converse20 wrote: »

Also, in addition to my reply to steampowered's comment.
I thought that negotiations with ACAS couldn't be brought up in tribunal. That's what the advisor told me.

Yes, I think you should make an offer to settle. Making an offer to settle does not imply your case is "weak". It is an entirely normal and standard part of almost any court or tribunal case.

There is a value to getting your money sooner and not having to go through the uncertainty and time of a full tribunal; and obviously you cannot be sure how much money an tribunal would award even if you were successful.

Settlement offers cannot be referred to or used as evidence during the main hearing.

However, they can be referred to after the tribunal has made a decision on the merits of the case, if either side makes an application for costs. Failing to engage in settlement discussions is perceived as unreasonable behaviour and may merit being ordered to pay the other side's legal costs.

My schedule of loss is for a lot of money, basically the best case that I could ask for. Much more than I would be awarded in realistically. Do I make a realistic offer at this stage? Or stay pie in the sky?

Make a realistic offer you would be happy with. If the other side wants to engage in negotiation no doubt they would make a lower counter offer. Pie in the sky offers are pointless.

Converse20 wrote: »

Do you think I should go through ACAS mediators or just do it by email? And should I do it without predjudice save as to costs like they did?

You can do it either way. Perhaps it is easier to go through ACAS as you are self-represented. If you do it by email it would be sensible to head the email "Without prejudice save as to costs".

Converse20

Thank you very much for your advice. Is there a section of law that I can quote with regards to the employment ending when it was communicated? I'm thinking of writing an email stating the weaknesses in their evidence and would like to state this as part of it, followed by an offer. Like what they did when they offered me £0.

Crazy_Jamie

Converse20 wrote: »

Thank you very much for your advice. Is there a section of law that I can quote with regards to the employment ending when it was communicated? I'm thinking of writing an email stating the weaknesses in their evidence and would like to state this as part of it, followed by an offer. Like what they did when they offered me £0.

That would be pointless. The other side know what the strengths and weaknesses of their case are. They wrote that letter to you in those terms in an attempt to convince you to drop your claim, which is extremely common when a represented company is defending a claim against a litigant in person. You won't have the same effect with a similar letter. Just point out the EDT so that they are aware that you know about it, then make the offer.

steampowered wrote:

However, they can be referred to after the tribunal has made a decision on the merits of the case, if either side makes an application for costs. Failing to engage in settlement discussions is perceived as unreasonable behaviour and may merit being ordered to pay the other side's legal costs.

I just want to clarify something here. The Tribunal has the power to award costs against a party that behaves unreasonably, but simply not engaging in negotiations is rarely sufficient in and of itself to warrant such an order being made. There almost always needs to be something more than that. There is no Part 36 equivalent in the Employment Tribunal, and whilst the Tribunal encourages parties to settle claims where possible, there usually needs to be something more than failing to accept a beneficial offer and not making any yourself. If a number of eminently reasonable offers had been made and a claimant rejected them, I could envisage a costs order being made if the case was weak. But such situations would be unusual. I would certainly struggle to see how the Tribunal could criticise the OP for not engaging here when neither of the other side's offers are realistic. I do think that making a realistic offer is the right thing to do, but there's nothing to suggest to me here that the OP is at risk of a costs order irrespective of what he does.

Converse20

Just re-reading the respondents ET3, they stated that I was unable to claim ordinary unfair dismissal as I had less that 2 years service (section 108 era)

I commenced employment on 16th September 2013 and was notified of my summary dismissal on 7th September 2015.
This is 103 weeks to the day if I it is correct that the date of dismissal is when I was notified.

The hearing went ahead in my absense, due to me being unable to attend on 5th September 2015.

Converse20

Sorry to ask to much. How would you recommend I word the email about the EDT?

Converse20

So, I've sent them an email. I informed them of the EDT, of the reasons for why the EDT is what it is and of the occasions on which they gave false information to the tribunal and to me. Namely in their ET3, amended ET3 and in the first preliminary hearing.

Within this email, I made an offer to settle. So that it's on record more than anything, although I would be more than willing for this to be over once and for all!

I don't think for a minute that they will accept my offer to settle, but what would be the best way to proceed following their non acceptance? Is it to late to pursue them for Ordinary Unfair Dismissal? Should I have not been the one to realise that I had 2 years service?

Crazy_Jamie

Converse20 wrote: »

I don't think for a minute that they will accept my offer to settle, but what would be the best way to proceed following their non acceptance? Is it to late to pursue them for Ordinary Unfair Dismissal? Should I have not been the one to realise that I had 2 years service?

You are already pursuing ordinary unfair dismissal. I only used the word 'ordinary' to distinguish from the allegation that the dismissal was due to the making of a protected disclosure, which if proven would automatically give rise to a finding of unfair dismissal. But the reality is that the two are the same. Your case is that you were unfairly dismissed, and in that respect the Tribunal should look at the dismissal in isolation even if is not accepted that it was due to the making of a protected disclosure.