Settle or Tribunal? Evidence destroyed!

skayes

Hi everyone, I'm in a bit of a bind and need some advice.

I used to work at an industrial site as a skilled worker and last year I was made redundant. Much later I became aware of some facts to make me question the circumstances of my redundancy. Originally I thought I had lost my job because I couldn't pass any tests vital to my job title and my employer was making cuts and redundancies anyway. Now the employer says, no, actually I did pass some tests and I was partly qualified. So I figured they had misled me to make it easier to get rid of me. I applied for a unfair dismissal case, but since I applied 7 months late, my former employer has managed get the Tribunal to consider throwing out the case on this basis at a preliminary hearing due in the next week.

The main weakness in my case is the redundancy situation which I had accepted without question. There was a document that could have proved I was misled about my qualifications, but my employer says that this document as well as a major portion of the entire file for the redundancy procedure was "accidentally destroyed". I'm sure the Tribunal will take a dim view of this, but otherwise the company has provided other evidence and witnesses to say that the whole redundancy and testing procedure was transparent and I'm either confused or a liar.

Now it gets weird. My employer's solicitor has sent me a 'without prejudice' email to ask me whether I intend to claim that I was made to do work that would officially breach the conditions of the company's insurance policy (this becomes a Health and Safety issue). He said that this was a 'serious allegation' to make and they 'refuted' this.

I have thought about it and realised that yes I did do at least two jobs that fall into that category. So they could be investigated in the public interest. But I can't afford representation, and I don't want to go through the hassle either.

I'm thinking of telling ACAS that I want to withdraw, but I don't know if I'll be hit with costs (I don't even know how much the preliminary hearing costs, and who pays). On the other hand, I've got an old work colleague who is willing to testify about one of these two jobs that I did (I may be able to get more witnesses for this too). I also have wage slips that verify my version of events. I did not receive proficiency pay to reflect the partial qualifications I supposedly held.

What should I do? Should I try for a settlement outside of court? I had hoped for a year's wages from the Tribunal, but I think the judge is likely to only award me the wages shortfall, and that's just a few hundred pounds. Could/should I use the strong witness as leverage for a settlement?

Guest101

How long had you worked there?

ReadingTim

skayes wrote: »

What should I do? Should I try for a settlement outside of court? I had hoped for a year's wages from the Tribunal, but I think the judge is likely to only award me the wages shortfall, and that's just a few hundred pounds. Could/should I use the strong witness as leverage for a settlement?

On what basis you you think you'd get a year's wages? You have to ascertain whether that outcome is even on the table first, before trying to guess whether you'd get it, then gambling whether you'd get a better or worse offer by settling.

Assuming you've found another job, plus got a redundancy payout, I'd see what they were offering by settling, take the money and move on...

Undervalued

ReadingTim wrote: »

On what basis you you think you'd get a year's wages? You have to ascertain whether that outcome is even on the table first, before trying to guess whether you'd get it, then gambling whether you'd get a better or worse offer by settling.

Assuming you've found another job, plus got a redundancy payout, I'd see what they were offering by settling, take the money and move on...

Yes, quite.

The average ET award is in the region of £6K. Yes there are some headline grabbing cases that get much larger sums but they are the exception, not the rule.

What is it about your case that makes you think "a year's wages" is a possibility?

Like any legal claim you are expected to mitigate your losses as far as possible by working in virtually any job you can get or, failing that, claiming JSA if eligible. That will be deducted from any award.

Have you had any professional advice about your claim?

sangie595

But the tribunal doesn't care about alleged health and safety violations. So why should the employer (who denies this anyway) care what you say or what your witness confirms? Certainly the tribunal had no interest in "the public interest". It is entirely possible that the only reason they are asking is because something had alerted them to this as a possibility, and they are considering further legal action.

But the tribunal is only interested in what you claimed, which appears to be unfair selection for redundancy / unfair dismissal. If the employer breached their insurance, that is a matter for them and their insurers, not you.

A years wages was probably already an unrealistic expectation, but regardless of what the employer had or had not lost, it appears you made a claim with no evidence to support you. That is on you. The employer isn't expected to substantiate your claim, and they'd be idiots if they did. Frankly, I'm amazed they admitted such records even existed. At the preliminary hearing you are going to have to explain to a tribunal how you intend to prove something that you have no evidence of, and never had such evidence.

steampowered

If your claim was 7 months late, the reality is that your claim is very likely to be struck out at the preliminary hearing.

Sorry. The 3 month time limit for bringing unfair dismissal claims is strictly applied.

Unless you have an incredibly good reason for bringing a claim out of time, there is a risk that you might be ordered to pay the employer's legal costs.

What should I do? Should I try for a settlement outside of court? I had hoped for a year's wages from the Tribunal, but I think the judge is likely to only award me the wages shortfall, and that's just a few hundred pounds.

Why don't you send your employer's solicitor an email headed "Without prejudice save as to costs" stating that you would be prepared to settle the claim on the basis that the employer pays the wages you are owed (specify what this amount is) and that each party bears their own costs.

You should do this as soon as possible. The employer is more likely to accept if it can avoid the expense of instructing solicitors to attend the preliminary hearing.

My employer's solicitor has sent me a 'without prejudice' email to ask me whether I intend to claim that I was made to do work that would officially breach the conditions of the company's insurance policy (this becomes a Health and Safety issue).

This sounds strange to me because I do not understand how this is relevant to the dispute. The Employment Tribunal is not there to rule on insurance or health and safety issues.

skayes

Thanks everyone for all your replies. I'll try to answer all questions in order.

How long had you worked there?

20 years.

What is it about your case that makes you think "a year's wages" is a possibility? ... Have you had any professional advice about your claim?

Yes. I applied to the Tribunal after seeking professional advice, and I also saw a solicitor twice. When I was made redundant I was two years from retirement. I was advised that I could ask for a year's wages plus the wages shortfall (minus redundancy and Pension Credit of course) since it was arguable that I could have been kept on at my job.

it appears you made a claim with no evidence to support you.

How do you know I didn't? I do have other evidence in my possession. The missing document was not the only evidence. I just needed it as a secondary piece to make my claim about being misled stronger. The destroyed redundancy file likely also had other evidence that would have gone in my favour in the main hearing if I won at the preliminary hearing.

The employer isn't expected to substantiate your claim ...

Not so. The Tribunal makes it quite clear that since this is not a criminal proceeding, all evidence is meant to be made available to both parties and that both parties are expected to comply with each other's requests for evidence, all before any hearings. And of course the employer usually possesses more records than the employee does at home. The Tribunal has already indicated that they will discuss the the employer's stalling tactics at the preliminary hearing.

This sounds strange to me because I do not understand how this is relevant to the dispute. The Employment Tribunal is not there to rule on insurance or health and safety issues.

Yes, that's true. I only mentioned health and safety here to explain why the employer asked me about it. It hasn't come up for the preliminary hearing as such. It would only come up at the main hearing if it went ahead. Sorry for not making this clear.

Unless you have an incredibly good reason for bringing a claim out of time, there is a risk that you might be ordered to pay the employer's legal costs.

You're right, and the solicitor said much the same thing. She said I did have a strong case in all respects but they were likely to win the preliminary hearing just on the basis that there was a pre-existing redundancy situation owing to cutbacks. My reason for making the claim late is that I truly had no idea I was part-qualified for my job until 7 months after the fact, and I do have indisputable paper evidence to prove it. But I'm really tired of the whole thing now because many times during my 20 years' service I was intimidated, teased, underpaid, given hellish hours in overtime, and had to chase my supervisors for months on end for wages owed. And all this despite the fact that I was one of the best workers in my field which was why I was first choice for everything, including jobs I wasn't technically qualified for, it seems. Principle, not money, was my primary motivation for the Tribunal claim but my employer has done a great job of covering their tracks, as usual. So Really, I just want to finish the whole thing.

Why don't you send your employer's solicitor an email headed "Without prejudice save as to costs" stating that you would be prepared to settle the claim on the basis that the employer pays the wages you are owed (specify what this amount is) and that each party bears their own costs.

Thank you for your advice, steampowered. It's helpful and I'll probably do just that, or go via ACAS.

sangie595

I should have known. Yet another newbie who posts misleading information only to show off what they know. If you had evidence, then why apply out of time, and why say that the evidence was destroyed, making no mention of the evidence you have? I think I'm going too have to consider whether I bother answering newbies at all - this pattern is becoming quite boring, and I suspect is our old "friend" who does this every few weeks.

skayes

Yet another newbie who posts misleading information only to show off what they know.

Sorry that my reply seems to have annoyed you - not my intention! - but certainly I never knowingly posted misleading information, and never made any claims about what I know and do not know. I even mentioned the other evidence in my first post. Please read it again.

And I have no idea who you are claiming I am. I simply wanted a second opinion on what I should do in light of the events.

Undervalued

skayes wrote: »

Sorry that my reply seems to have annoyed you - not my intention! - but certainly I never knowingly posted misleading information, and never made any claims about what I know and do not know. I even mentioned the other evidence in my first post. Please read it again.

And I have no idea who you are claiming I am. I simply wanted a second opinion on what I should do in light of the events.

Over the last few months there have been quite a number of complex employment law questions raised by apparently new users. Several of the regular posters, including Sangie, have taken the trouble to respond in detail only for it to gradually emerge that the situation was a complete fabrication posted purely to make mischief. In some cases the original poster has eventually admitted as much. Generally they have followed a similar style and many of us believe that one person is behind them all.

Sadly this has led to a situation where any complex questions raised by new users are treated with suspicion. I have to say that my initial reaction to your question was that it was genuine which is why I responded. If I am right then I am sorry your question has received a jaded response from some and I hope you do get some useful answers.

skayes

Undervalued, thanks for letting me know. I appreciate it.

Sangie595, sorry you've had problems with fake newbies. I can understand your wariness about my post but I assure you mine is a genuine situation.