Settlement out of court - Employment Tribunal

DiscriminationClaimant17

Sangie, can I ask what you mean by starting at more than 100%? That implies that there is a risk to R that the tribunal could offer more than you've specified in the schedule of loss? If so I didn't realise that. That could be a good negotiating position if I KNOW that they're lying.

sangie595

DiscriminationClaimant17 wrote: »

Sangie, can I ask what you mean by starting at more than 100%? That implies that there is a risk to R that the tribunal could offer more than you've specified in the schedule of loss? If so I didn't realise that. That could be a good negotiating position if I KNOW that they're lying.

The tribunal will determine that, so there is always a risk it will award more. That's all guess work. But like I said, the longer this takes, the higher their legal bill will grow. Exponentially. So their costs are whatever the tribunal awards PLUS legal costs. Why don't you have a lawyer? Can't afford one? So what do you think their bill will be? In discrimination cases the legal costs can equal or exceed the award. You aren't going to get what you ask for - so why ask for what you actually want? Because when they come back with a ridiculously low counter offer, they won't be expecting you to agree. If you do they'll fall over laughing....

Never haggled?

Takeaway_Addict

sangie595 wrote: »

The tribunal will determine that, so there is always a risk it will award more. That's all guess work. But like I said, the longer this takes, the higher their legal bill will grow. Exponentially. So their costs are whatever the tribunal awards PLUS legal costs. Why don't you have a lawyer? Can't afford one? So what do you think their bill will be? In discrimination cases the legal costs can equal or exceed the award. You aren't going to get what you ask for - so why ask for what you actually want? Because when they come back with a ridiculously low counter offer, they won't be expecting you to agree. If you do they'll fall over laughing....

Never haggled?

Unless they have indemnity insurance...

sangie595

Takeaway_Addict wrote: »

Unless they have indemnity insurance...

Which generally does not cover negligence or deliberate actions. It usually requires you to have taken appropriate legal advice before taking an action. If the employer had such insurance that covered them, the lawyer would not already be talking settlement. Very few employers take it out now - it is prohibitively expensive and often doesn't cover them because they've usually done something stupid without the right advice. After all, how hard is " let the woman come back to work in her role and then make her redundant"? That would have been lawful!

steampowered

DiscriminationClaimant17 wrote: »

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

I honestly don't think it makes any difference. Whether you are desperate doesn't really matter.

They are running a business. The employer's decision to make a settlement offer or not is based on commercial considerations - the key considerations being what are their chances of winning; what would they have to pay if they lost; and how much will they burn on legal fees.

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...

It seems incredibly unlikely to me that this makes any difference. If the company has a December year end they might be tempted to settle to get any litigation off their accounts, but again in most circumstances that's not a big factor.

DiscriminationClaimant17 wrote: »

The deadline for disclosure is next week

Decisions and timing for settlement are usually driven by the Defendant, not by the Claimant.

If the company has already incurred the legal expenses associated with disclosure, there isn't a great deal of incentive for them to settle now. The next crunch point when they have to start incurring costs will be preparation of witness statements.

DiscriminationClaimant17 wrote: »

That implies that there is a risk to R that the tribunal could offer more than you've specified in the schedule of loss?

In theory this could happen. In practice I can't ever recall a case in which this happened. You would usually expect to get less than the maximum you have asked for. When you create a schedule of los you would usually ask for the maximum you could realistically justify with a straight face.

By the way, I think it is unlikely that you can expect to get anywhere near the median award for 'injury to feelings' if you have only a short amount of continuous service. Just to set your expectations.

if I KNOW that they're lying.

Why does it matter? There are no punitive damages in employment tribunal. You can rarely prove that someone is lying (as oppose to being mistaken or having a different opinion or disagreeing with you). Just focus on proving your case, which is about maternity discrimination, not on being the moral police.

DiscriminationClaimant17

Crikey! Lots of great information in there, trying to get my head around it all...

Sangie, I expected that what I put in my schedule of loss was the maximum, I don't want to pluck figures out of the air but expected to negotiate. Just looking for a reasonable end point. Fully expecting a laughable offer to start with, but every discussion I can find online along these lines suggests people are on average settling discrimination claims for around £7k. I don't know if this is an accurate representation, it seems low, particularly for discrimination?

Steampowered, The witness statement deadline is only a month after the disclosure deadline so in my mind that then makes even more sense. However, I suppose speculating about if and when they're going to settle is pointless - I will only know in time!

You mention that due to my short service I likely won't get the median award - is there some guidance anywhere on what factors effect this? That would be so helpful!! There are a few more elements that I'm afraid I can't share that I think strengthen the injury to feelings but it would be useful to know what to expect rather than hearing it for the first time in the middle of negotiations with their solicitor!

The reason I'm so fixated on the lie is because the whole case now revolves around one particular lie and not the actual act of discrimination as the judge has agreed to a strike out if they can't prove it. If they somehow manage to miraculously provide evidence for something that never happened then my case will be struck out...

sangie595

The problem with what your are asking is twofold. First, we don't know enough to make a good guess at an award. But equally, to be honest, tribunals are chancy. Those of us who have been to enough have seen great cases crash, and poor ones succeed. There are too many variables, including totally unquantifiable factors. I have seen a tribunal quite obviously lift an award simply because they hated the respondents cocky barrister! Oh, they didn't say that - but everyone knew!

Median awards for discrimination claims are higher - between about £9 - 13k. But those are statistics - they can be lower or higher by a lot, depending on the case.

Your claim is "picking figures out of the air" in a tribunal sense. You've picked a band claim for injury to feelings, you've assumed that you had a years wages lost, etc. If you are satisfied that that represents a figure you are happy with, then that is your choice made. Past that point, and remember, this is all strategy and people will differ on that - I will never settle for less than 60% on what I think is a good case. The divergence here is that I'm an objective outsider, and you aren't, so my take on the case will be a lot less subjective.

But here's how I do it, assuming a good case. They offer, I tell them I'm not even going to make a response to such a stupid figure and to come back if they want to be serious. Wait for the next offer, which will still be ridiculously low. Drop my top line by a small amount - by less than they increased their offer by. Repeat as required. Never believe their final offer. But yes, it's a nerve wracking game if you are personally involved. But I've been known to go into markets in India and come back owning the market! So to speak! In other words, it's all strategy and has very little to do with reality. Remember, their reality is different from yours. Yours is you have no money. So they expect you to grab whatever you can and be grateful. Theirs is that they are spending a lot of money for every minute this lasts! So it isn't about fair, just, or equitable - nothing every is. It's about winning and losing. If you think you've won, then you have! That is the definition of haggling....

DiscriminationClaimant17

Absolutely agree with you, nothing can be certain, and I am bias to the weight of the evidence, of course I am. It should all become a little more clear soon when we've each showed our hand so to speak.

The main thing I'm expecting is their solicitor to try and convince me that my figures are unreasonable based on things like steampowered said: that my short length of service would impact the injury to feelings (and other factors I'd never considered as a layman) to bring the value of my claim down, rather than them arguing that their case is stronger than mine. I don't want to feel like a rabbit caught in the headlights and end up affecting my haggling.

It's their job to try and tie me up in knots to try and save their client the most money possible after all! Im ready for a bit of back and forth. I'm confident with my figures and have explained to R how they've been calculated, they're certainly more than reasonable as a start point as far as I'M concerned, but of course that's objective too.

I get what you're saying - basically there's no means to calculate it other than how well you haggle! I just thought there'd be something more concrete than that considering every step in the ET process is so precise! In that case the only thing I can do is arm myself with little snippets (like the one above) that they're likely to throw out and be ready to rebut them.

Thank you both for giving my brain a workout, it makes a change to nappies and night feeds!

sangie595

For every action there is an equal and opposite reaction.

In other words - anything either of you argue is open to different interpretations. Or, to go back to the Indian market, I have knowingly robbed a great many starving grandmothers of their next meal! So they argue that you haven't been there very long and don't deserve a higher amount - I would argue that you loved your job and foresaw a long career with your employer and they have robbed you of that. There is a counter argument to everything in a haggle. In the end, not one of them matter. The haggle is about the amount of money and nothing else. So no matter what they say, you don't even have to respond to it - the sum is acceptable, or it is not. Anything they say is water off a ducks back - they no more know what a tribunal might award against them than you do. If it came to the end of a tribunal and you won, the tribunal might just decide that robbing you of that lovely career you had planned is actually a huge injury to feelings. You don't know that, they don't know that. There are too many factors at play to make accurate guesses.

The "game" is the haggle - the arguments are window dressing and distraction.

FBaby

I've claimed a years wages

Have you actually been looking for work and can you evidence this?

I'm asking because friend of mine found herself in a similar position to yours (from what you've written). It went on for many months, the company refused to settled until the day before court, but she felt the amount offered was an insult so decided to take it to court. She won her case, but ended up gettingless than what they had offered. She too judged the amount on wages lost, however, the judge did ask for evidence that she'd tried to get another similar job which she couldn't do. The truth is that although she had intended to go back to her job, she did enjoy being at home with her baby and managed to make ends meet, so she was happy not to work during that time. This went against her badly.