Employment Tribunal Advice Please

Converse20

So do you suggest that I contact the tribunal also? Should the other side not wish to settle and inform them of the EDT and the right to claim Ordinary Unfair Dismissal aside from the protected disclosures? Would this likely mean the hearing is postponed for the other side to prepare? The burden of proof would be on them to prove that I was not wrongfully dismissed and they wouldn't have prepared a case for this.

steampowered

Crazy_Jamie wrote: »

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.

I agree that failing to make an offer probably wouldn't justify a costs order by itself, but it increases the risk dramatically - failing to engage with settlement discussions is one of the classic examples of unreasonable behaviour.

As the Op is a litigant in person it is very likely that mistakes will be made. For that reason I think it would be most unwise to leave open the potential of being criticised for failing to attempt to settle. The Op loses nothing by making a relatively high settlement offer so I think it is the right thing to do.

Converse20 wrote: »

So do you suggest that I contact the tribunal also? Should the other side not wish to settle and inform them of the EDT and the right to claim Ordinary Unfair Dismissal aside from the protected disclosures? Would this likely mean the hearing is postponed for the other side to prepare? The burden of proof would be on them to prove that I was not wrongfully dismissed and they wouldn't have prepared a case for this.

Do I understand correctly your case was booked for 6 days? If so, that is a very long time by Tribunal standards. You will find it extremely difficult to get such a long hearing postponed if it is getting close to the hearing.

My instinct is to say that you do not need to proactively raise points around EDT outside of the formal tribunal process if your ET1 already contains a clear allegation of unfair dismissal. The points made in the respondent's ET3 will get dealt with at the hearing; it is not appropriate to play letter-tennis with the respondent outside of the formal tribunal process. You do need to be prepared to have the EDT argument with the respondent at the hearing.

If you want to raise new facts, it is a bit more complicated than just informing the other side and the tribunal. There is a formal process which gives each side a limited number of chances to raise their arguments and that needs to be complied with. If you wanted to change your case you may need to make an application to formally amend your ET1. If you want input on whether this is necessary I think you would need to tell us more about what you said in your ET1 and what was said in response in the ET3.

Converse20

Steampowered, what information do you need? My ET1 was very brief. The respondent asked for further information which was submitted with details on my public interest disclosures and my allegations of detriment mostly.

They submitted an ET3 which denied any wrongdoing and also stated that I wasn't eligible to claim Ordinary Unfair Dismissal as I hadn't met the qualifying two years service.

Following the first preliminary hearing, wherein the asked for their ET3 to be amended, they submitted a new ET3 which was mostly just further disagreeing with my accounts of detriment and my disclosures. They also stated that the claim for Ordinary Unfair Dismissal had been withdrawn at the preliminary hearing.

What else do you need?

Crazy_Jamie

Converse20 wrote: »

Steampowered, what information do you need? My ET1 was very brief. The respondent asked for further information which was submitted with details on my public interest disclosures and my allegations of detriment mostly.

They submitted an ET3 which denied any wrongdoing and also stated that I wasn't eligible to claim Ordinary Unfair Dismissal as I hadn't met the qualifying two years service.

Following the first preliminary hearing, wherein the asked for their ET3 to be amended, they submitted a new ET3 which was mostly just further disagreeing with my accounts of detriment and my disclosures. They also stated that the claim for Ordinary Unfair Dismissal had been withdrawn at the preliminary hearing.

What else do you need?

This is important. Your allegation relating to the protected disclosures is a claim for automatic unfair dismissal, because if it is proven then that is automatically an unfair reason to dismiss. Ordinary unfair dismissal simply examines the reasons for dismissal and the reasonableness of the reason and process. Did you accept at the preliminary hearing that you didn't have the required service for ordinary unfair dismissal, and did you withdraw it? Check the case management order following the preliminary hearing if you're not sure; it will be recorded in there.

Crazy_Jamie

steampowered wrote: »

I agree that failing to make an offer probably wouldn't justify a costs order by itself, but it increases the risk dramatically - failing to engage with settlement discussions is one of the classic examples of unreasonable behaviour.

As the Op is a litigant in person it is very likely that mistakes will be made. For that reason I think it would be most unwise to leave open the potential of being criticised for failing to attempt to settle. The Op loses nothing by making a relatively high settlement offer so I think it is the right thing to do.

I agree. My point was that I can't see the OP being criticised in a situation where the other side's offers don't appear to be genuine attempts to settle either. But I have always agreed that the OP making an offer, as they now have done, would be advisable. I think we're on the same page.

Converse20

Yes, I was advised that I didn't have 2 years service and agreed that this was the case. This part of the claim was withdrawn.

They must've known though surely!

Converse20

So I've just realised. I gave a deadline of this Thursday for the response to my offer which was sent on Saturday. Could this be seen as unreasonable as I have not given them enough time to consider it?

I don't for a moment think that they will accept, but should I have given them longer to consider and consult with their client?

Are there any legal implications for my previous employers solicitors?

steampowered

Converse20 wrote: »

So I've just realised. I gave a deadline of this Thursday for the response to my offer which was sent on Saturday. Could this be seen as unreasonable as I have not given them enough time to consider it?

I don't for a moment think that they will accept, but should I have given them longer to consider and consult with their client?

Are there any legal implications for my previous employers solicitors?

I think this is fine. Saturday is Thursday is not an unreasonable deadline. If the employer wants to settle they can always make a counter-offer or ask if the offer is open after the deadline.

Yes, I was advised that I didn't have 2 years service and agreed that this was the case. This part of the claim was withdrawn.

They must've known though surely!

If you agreed to withdraw a claim at a preliminary hearing, it will be difficult to resurrect it now. You might have to focus on the claims you have left.

Converse20

Will the fact that it was withdrawn following them stating that I didn't have 2 years service and me being unrepresented not come into it? Clutching at straws I know, but it seems to me like they were being devious in this. Surely the solicitor would have checked the details of my dismissal and would know that I actually did qualify! They are taking advantage of me not knowing this point of law which is not fair!

steampowered

Converse20 wrote: »

Will the fact that it was withdrawn following them stating that I didn't have 2 years service and me being unrepresented not come into it?

The respondent is your opponent, not your adviser. I don't think you can rely on what the respondent's solicitor told you as justification for resurrecting the claim.

If a particular part of the claim has been fully and formally withdrawn (is this documented in a tribunal order?), it sounds like it will be very difficult to resurrect it now. Especially if there are no more preliminary hearings booked until the actual hearing date.

I suppose you could try to resurrect the claim? Not sure exactly how you would go about that. Is something about this claim stated in the order coming out of the preliminary hearing? If so you'd probably need to ask the Tribunal to vary that order.

That said, it is very difficult for us to know through this forum exactly what you claimed for in your ET1 and exactly what claims were withdrawn at the preliminary hearing. This is the kind of thing that gets a bit tricky to advise on without seeing the actual documents and knowing exactly what was said at the hearing.