Settlement out of court - Employment Tribunal

DiscriminationClaimant17

Hi all,

I'm new to this forum so very grateful for any advice you can provide please. I'm representing myself in a maternity discrimination claim against my ex employer and their behaviour so far has been absolutely shocking. In my mind this should be a pretty clear cut case (but I expect every C ever has thought that unless they were trying it on!)

R's counsel expressed in the prelim hearing that they were very keen to settle out of court and I didn't give anything away on the phone but of course I would like to put all this nastiness to bed and move on with my life if they DO come back with an offer. The judge even advised them to call me they were so keen!

My question is, is there a formula to use to try and help calculate what is reasonable to negotiate (using the summary of loss I've already completed and shared with R) as I understand that settling out of court is eliminating risk and I will recieve nowhere near what I'm claiming for.

This isn't about greed, it's about paying off the debt I've accrued as a result of unexpectedly losing my job after having a baby and having enough money left over to carry on with my life and make childcare arrangements so I can get a new job going forward. I have absolute confidence in my case should the hearing go ahead but I know and I think they do too that it's just delaying the inevitable so just need to know whether it's acceptable to ask for 50%, which would allow me a years worth of wages to find a new job and pay off the debt I've accrued or whether another percentage is more realistic and more often used so I can be prepared.

Thanks for taking the time to read this!

Comms69

DiscriminationClaimant17 wrote: »

Hi all,

I'm new to this forum so very grateful for any advice you can provide please. I'm representing myself in a maternity discrimination claim against my ex employer and their behaviour so far has been absolutely shocking. In my mind this should be a pretty clear cut case (but I expect every C ever has thought that unless they were trying it on!) - Can you give some background, it could save you a lot of money.

R's counsel expressed in the prelim hearing that they were very keen to settle out of court and I didn't give anything away on the phone but of course I would like to put all this nastiness to bed and move on with my life if they DO come back with an offer. The judge even advised them to call me they were so keen! - Perfectly normal. Even in cases where they may win, a settlement is often cheaper.

My question is, is there a formula to use to try and help calculate what is reasonable to negotiate (using the summary of loss I've already completed and shared with R) as I understand that settling out of court is eliminating risk and I will recieve nowhere near what I'm claiming for. - Possibly, but again it's not possible to say for sure without knowing the full situation.

This isn't about greed, it's about paying off the debt I've accrued as a result of unexpectedly losing my job after having a baby and having enough money left over to carry on with my life and make childcare arrangements so I can get a new job going forward. - Please do elaborate.(its ok to be greedy by the way) I have absolute confidence in my case should the hearing go ahead but I know and I think they do too that it's just delaying the inevitable so just need to know whether it's acceptable to ask for 50%, which would allow me a years worth of wages to find a new job and pay off the debt I've accrued or whether another percentage is more realistic and more often used so I can be prepared.

Thanks for taking the time to read this!

remember even if you win, you may not win the amount you have claimed.


From your post so far, you were pregnant, presumably too maternity, had the baby and then ___ ?


You say lost your job, but were you made redundant? If so you should have had priority on another role (assuming qualified etc)


Or were you sacked?

sangie595

You never under pitch. It's for them to haggle, not you. So you don't ask for anything less than 100%. Actually I usually start at more than that! Do you have a schedule of loss yet? And yes, as previously said, an award would depend on circumstances, which we don't know. But I'd start with actual loss, plus an amount based on what I think a tribunal would award, plus 20% - unless I think I can get away with more! Then see what they come back with. Which would usually be ridiculously low. So I'd just refuse the first offer and let then come back at least once more before I start talking figures.

sangie595

Oh. Plus an agreed good reference! Without that there's no deal.

steampowered

It is perfectly acceptable to negotiate.

It is usually the employer that puts forward an offer, which the employee then negotiates. However there is nothing stopping you from putting one forward. You would expect the employer to negotiate - so if you offer 50% of what you are claiming they may counter-offer with 25%.

It is very difficult to come up with a rule of thumb, as it depends on -
1) the chances of you winning
2) if you were to win, what you might realistically be awarded in compensation
3) the cost of defending the case for the employer - cases which involve lots of witnesses and multiple days of hearings are much more expensive to defend than straightforward cases

50% of the loss you realistically think you would get (most schedules of loss are pretty inflated - you might as well claim what it is possible rather than what is likely, after all) would often be a reasonable place to end up.

Often the thing which spurs employers to make a settlement offer is when they have to start racking up significant legal costs - i.e. when their lawyers have to start preparing witness statements and generally preparing for the hearing.

DiscriminationClaimant17

Hi, thanks for replying!

I realise it may be a little tricky to reply without many details, I was deliberately vague as I don't want R to be able to search for info about settlements and this thread pop up! ��

I'll elaborate as much as I can without giving too much away as I understand some details are quite unique to my situation. I was on maternity leave and wrote to my manager to return to work on a given date which she accepted, told me my role had changed basically beyond all recognition but offered me a new one, on better terms with more possibility so I obviously accepted. She then tried to change her mind and offer the job to my maternity cover to avoid losing her but that would have left me without a job so I objected and explained my rights but she started looking for reasons to withdraw the offer and we had several conversations in this 8 week period before I was due to return. The week before I was due to start she withdrew the offer, The final reason she withdrew it was because she said my childcare provider was unsuitable and incompatible with the role. None of her business as far as I'm concerned! She gave the job to my maternity cover instead.

I asked then to have my same job back then if she wasn't going to let me do the new job and she explained that I was basically redundant because the maternity cover was doing everything I would have been required to do.

I wrote a grievance, she ignored it, I went through early conciliation with ACAS, she ignored it. So we're here at this point and I'm in a pretty strong position because I have everything written down as evidence. I don't even understand why she's trying to resist the claim but everything that comes from her solicitor so far has been a complete lie. I don't think they intend to get through to the open PH, just let me sweat and hope I'll drop it in between I think. The judge has already agreed to strike out their claim at PH if they can't produce evidence to collaborate their lie which I know there can be no evidence of.

I've claimed a years wages, the median for mat discrimination injury to feelings, no contract of employment, loss of statutory rights, 25% for failure to follow ACAS code of practice and daily interest since the event. All in all about 30k, I don't expect them to take into account the 25% or interest into any settlement offer but if you don't ask you don't get eh?!

Finally I know you make reference to redundancy but there was no correspondence to say anything about redundancy/putting me at warning/putting me at notice/redundancy payments etc, just that my job was relatively new to the company and it was changing all the time. I wasn't at all surprised that it had been streamlined and improved whilst I was away having my baby, so I don't consider it to be redundancy. It's more that she has just made it impossible to return to my job but I can't claim constructive dismissal as I was only there 1 year 11 months... pah!

steampowered

Another approach: You said that their counsel told the Employment Tribunal at the preliminary hearing that the respondent was 'keen to settle'.

Why don't you use this to put pressure on them to come up with the first figure.

Why don't you write to the employer asking them to confirm their position on a possible settlement, and in particular:

1) that what their counsel told the Tribunal was correct, in which case you invite them to make a reasonable settlement offer which you will be pleased to consider; or

2) confirm that they are not intending to make a settlement offer, in which case the Tribunal would have been misled.

DiscriminationClaimant17

That should have read *more responsibility* in the second paragraph. Blinking auto correct.

DiscriminationClaimant17

steampowered wrote: »

Another approach: You said that their counsel told the Employment Tribunal at the preliminary hearing that the respondent was 'keen to settle'.

Why don't you use this to put pressure on them to come up with the first figure.

Why don't you write to the employer asking them to confirm their position on a possible settlement, and in particular:

1) that what their counsel told the Tribunal was correct, in which case you invite them to make a reasonable settlement offer which you will be pleased to consider; or

2) confirm that they are not intending to make a settlement offer, in which case the Tribunal would have been misled.

I considered this, but does this come across as me looking desperate and therefore ending up with a lower settlement amount?

I've heard that many people wait at this time of year until early December and then make a cheeky offer because they know that people are really feeling the sting leading up to Christmas and may be more likely to accept...

sangie595

It's a matter of strategy, but unlike steampowered, I would never make the first offer unless I had no case! Or a weak one. Their lawyer has already said that they want to settle. I'd let them sweat it out. You are in no rush, and can settle or not. Every minute you delay, assuming you are a litigant in person, the employer is racking up the legal bill. Discrimination cases are notoriously expensive. A settlement can be agreed up to, or even during, a tribunal. So what is your rush? You have nothing to lose. Currently you have no money. You could lose the tribunal, and have no money. Those are the two extremes. Somewhere in the middle is the settlement, and the only person whose interest it is to settle right now is the employer - the lawyer will win no matter what!

DiscriminationClaimant17

The deadline for disclosure is next week, I'm expecting that once they've seen the evidence I have and I've seen the evidence they don't have that both positions will be revealed and it will be more clear for them to come forward with an offer and begin negotiating so I just want to be prepared really.

On the flip side, by the time of the hearing I predict to have a completely empty bank balance and several bills due the same week so settling before I get to that stage would save me a lot of sleep and hair!