Is judicial mediation better to settle to withdraw claim and terminate employment

Uyuni

Hi- Thanks for looking at my post if any one could advice or have experience on this.

My other half is in ET claim against her employer on continuing acts of direct race discrimination, harassment and victimisation, unlawfully deduction of wages & unpaid accrued holidays.

Currently still employed, suspended for many months now for an unresolved disciplinary action raised by the discriminator, grievance on discrimination were ignored.

She has hard evidence on nearly each of the acts. Employer refused to provide SAR and respond to discrimination questionnaire for now 9 months.

Case will go through a judicial mediation, however employer is making an offer within ACAS of just over  3rd of the estimated value of the claim.

What amount or proportion is considered to be fair for a settlement in those circumstances, also considering  that she will loose her job. Finding a job in her current state will be a big challenge.

Also do you think it’s better to go through judicial mediation rather than ACAS, in case judges could provide more guidance and see for a fair resolution? All asked is reference. Am I missing anything? is any other approach to consider given she is still employed?

Thanks a lot in advance!

born_again

Is this a follow on from your other threads on this subject?

https://forums.moneysavingexpert.com/discussion/6479879/never-ending-disciplinary-case-and-employee-suspended-for-6-months#latest

Uyuni

Hi. It's not a follow up. This is different, although related to my wife's case, there were important developments, and failed attempts for resolution too, etc.

I'm looking if someone could comment on the above posted here on knowledge or experience. Thanks. 

Marcon

Uyuni said:

Hi- Thanks for looking at my post if any one could advice or have experience on this.

My other half is in ET claim against her employer on continuing acts of direct race discrimination, harassment and victimisation, unlawfully deduction of wages & unpaid accrued holidays.

Currently still employed, suspended for many months now for an unresolved disciplinary action raised by the discriminator, grievance on discrimination were ignored.

She has hard evidence on nearly each of the acts. Employer refused to provide SAR and respond to discrimination questionnaire for now 9 months.

Case will go through a judicial mediation, however employer is making an offer within ACAS of just over  3rd of the estimated value of the claim.

What amount or proportion is considered to be fair for a settlement in those circumstances, also considering  that she will loose her job. Finding a job in her current state will be a big challenge.

It's not possible to answer that without knowing the strength of someone's case and a great deal of relevant information. If someone believes they have a massively strong case (and most people do, quite naturally!), there is no guarantee a tribunal will agree and it might be that there is no award at all made. Alternatively, the case could be genuinely robust and a much higher award would be made. In other words, I'm afraid nobody here can give you any sort of reliable 'guesstimate'.

Uyuni said:

Also do you think it’s better to go through judicial mediation rather than ACAS, in case judges could provide more guidance and see for a fair resolution? All asked is reference. Am I missing anything? is any other approach to consider given she is still employed?

Judicial mediation is an alternative to a tribunal hearing; it isn't an alternative to ACAS conciliation. For more info, read https://assets.publishing.service.gov.uk/media/5b05377a40f0b61f8b37aba7/t612-eng.pdf

Without knowing the full details of a case (which clearly can't be posted here), it's not possible to suggest which route is better, or whether there are any other avenues for her to explore.

Uyuni

Marcon said:

Uyuni said:

Hi- Thanks for looking at my post if any one could advice or have experience on this.

My other half is in ET claim against her employer on continuing acts of direct race discrimination, harassment and victimisation, unlawfully deduction of wages & unpaid accrued holidays.

Currently still employed, suspended for many months now for an unresolved disciplinary action raised by the discriminator, grievance on discrimination were ignored.

She has hard evidence on nearly each of the acts. Employer refused to provide SAR and respond to discrimination questionnaire for now 9 months.

Case will go through a judicial mediation, however employer is making an offer within ACAS of just over  3rd of the estimated value of the claim.

What amount or proportion is considered to be fair for a settlement in those circumstances, also considering  that she will loose her job. Finding a job in her current state will be a big challenge.

It's not possible to answer that without knowing the strength of someone's case and a great deal of relevant information. If someone believes they have a massively strong case (and most people do, quite naturally!), there is no guarantee a tribunal will agree and it might be that there is no award at all made. Alternatively, the case could be genuinely robust and a much higher award would be made. In other words, I'm afraid nobody here can give you any sort of reliable 'guesstimate'.

Uyuni said:

Also do you think it’s better to go through judicial mediation rather than ACAS, in case judges could provide more guidance and see for a fair resolution? All asked is reference. Am I missing anything? is any other approach to consider given she is still employed?

Judicial mediation is an alternative to a tribunal hearing; it isn't an alternative to ACAS conciliation. For more info, read https://assets.publishing.service.gov.uk/media/5b05377a40f0b61f8b37aba7/t612-eng.pdf

Without knowing the full details of a case (which clearly can't be posted here), it's not possible to suggest which route is better, or whether there are any other avenues for her to explore.

Thanks you so much for your response. I understand your point. To say that it's a strong case is based in law precedents, equality act guidance, the evidence available for each date/email, and sure there is the risk factor of no award.

I'd like my wife to settle, but she is unsure on this. as if she wanted to go to final hearing regardless anything. She is very much hurt and having to deal with health issues due to the way she was treated.

Deep inside I know that proportion should be close to the actual value, but not sure to consider another value for the fact that a settlement will also include termination of employment. I'm just unsure into telling her to accept this and move on, or just wait for the mediation, express her desired outcomes and feel that she has done more to feel less hurt not only related on monetary aspects.

Judicial mediation seems to be a good way to expose the situation and to be dealt in a more formal way as well as that the judge can see the case and express views and guidance around. 

Thanks again.

Marcon

Uyuni said:

Judicial mediation seems to be a good way to expose the situation and to be dealt in a more formal way as well as that the judge can see the case and express views and guidance around. 

A major attraction of judicial mediation is that you don't have to go through the whole ET process (which is held in public and can be reported) - the mediation itself is held in private. Very few people people survive the ET process unscathed, whatever the outcome, so if your wife is having health problems it would be well worth considering mediation if she's given that option.

Undervalued

Uyuni said:

Hi- Thanks for looking at my post if any one could advice or have experience on this.

My other half is in ET claim against her employer on continuing acts of direct race discrimination, harassment and victimisation, unlawfully deduction of wages & unpaid accrued holidays.

Currently still employed, suspended for many months now for an unresolved disciplinary action raised by the discriminator, grievance on discrimination were ignored.

She has hard evidence on nearly each of the acts. Employer refused to provide SAR and respond to discrimination questionnaire for now 9 months.

Case will go through a judicial mediation, however employer is making an offer within ACAS of just over  3rd of the estimated value of the claim.

What amount or proportion is considered to be fair for a settlement in those circumstances, also considering  that she will loose her job. Finding a job in her current state will be a big challenge.

Also do you think it’s better to go through judicial mediation rather than ACAS, in case judges could provide more guidance and see for a fair resolution? All asked is reference. Am I missing anything? is any other approach to consider given she is still employed?

Thanks a lot in advance!

Estimated by who? Also, was the estimate based on hearing both sides of the story?

Uyuni

Undervalued said:

Uyuni said:

Hi- Thanks for looking at my post if any one could advice or have experience on this.

My other half is in ET claim against her employer on continuing acts of direct race discrimination, harassment and victimisation, unlawfully deduction of wages & unpaid accrued holidays.

Currently still employed, suspended for many months now for an unresolved disciplinary action raised by the discriminator, grievance on discrimination were ignored.

She has hard evidence on nearly each of the acts. Employer refused to provide SAR and respond to discrimination questionnaire for now 9 months.

Case will go through a judicial mediation, however employer is making an offer within ACAS of just over  3rd of the estimated value of the claim.

What amount or proportion is considered to be fair for a settlement in those circumstances, also considering  that she will loose her job. Finding a job in her current state will be a big challenge.

Also do you think it’s better to go through judicial mediation rather than ACAS, in case judges could provide more guidance and see for a fair resolution? All asked is reference. Am I missing anything? is any other approach to consider given she is still employed?

Thanks a lot in advance!

Estimated by who? Also, was the estimate based on hearing both sides of the story?

schedule of losses has not been presented yet. It's a calculation made on the grounds of the claim including injury to feelings, interest, personal injury, loss of wages, holidays. At this stage no hearing of both sides story has taken place, apart of the response to claim which is, of course, a denial of events or refutable justifications.
However, regardless the actual value of the claim or whether is or not an strong case, I hoped to have some insights on what that proportion would be assuming it's a strong case. And whether judicial mediation is a better resource than ACAs, to resolve the dispute an end all this.  

Undervalued

Uyuni said:

Undervalued said:

Uyuni said:

Hi- Thanks for looking at my post if any one could advice or have experience on this.

My other half is in ET claim against her employer on continuing acts of direct race discrimination, harassment and victimisation, unlawfully deduction of wages & unpaid accrued holidays.

Currently still employed, suspended for many months now for an unresolved disciplinary action raised by the discriminator, grievance on discrimination were ignored.

She has hard evidence on nearly each of the acts. Employer refused to provide SAR and respond to discrimination questionnaire for now 9 months.

Case will go through a judicial mediation, however employer is making an offer within ACAS of just over  3rd of the estimated value of the claim.

What amount or proportion is considered to be fair for a settlement in those circumstances, also considering  that she will loose her job. Finding a job in her current state will be a big challenge.

Also do you think it’s better to go through judicial mediation rather than ACAS, in case judges could provide more guidance and see for a fair resolution? All asked is reference. Am I missing anything? is any other approach to consider given she is still employed?

Thanks a lot in advance!

Estimated by who? Also, was the estimate based on hearing both sides of the story?

schedule of losses has not been presented yet. It's a calculation made on the grounds of the claim including injury to feelings, interest, personal injury, loss of wages, holidays. At this stage no hearing of both sides story has taken place, apart of the response to claim which is, of course, a denial of events or refutable justifications.
However, regardless the actual value of the claim or whether is or not an strong case, I hoped to have some insights on what that proportion would be assuming it's a strong case. And whether judicial mediation is a better resource than ACAs, to resolve the dispute an end all this.  

But have you had any independent legal advice that the claim (if won) would yield anything like three times the employer's current offer?

Yes there are occasionally headline grabbing awards but the vast majority of cases won at tribunal yield well under £10K.

You also need to factor in the huge amount of stress (and risk) in fighting a case against a big employer. Whilst some will readily settle cases that they would most likely have won, just to be rid of the problem, others will happily spend far more on defending cases than it would have cost to settle. What is this employer's normal approach?

You don't say how much this "third" is in cash terms. If serious amounts of money are involved, get some proper legal advice (i.e not ACAS).

Finally remember that even if the case is ultimately won at tribunal. they have no power to order the employer to provide a reference. An agreed reference as part of a settlement can be worth far more than a few extra £K in compensation, as it may be very difficult to get a decent job without one.

Marcon

Uyuni said:

Undervalued said:

Uyuni said:

Hi- Thanks for looking at my post if any one could advice or have experience on this.

My other half is in ET claim against her employer on continuing acts of direct race discrimination, harassment and victimisation, unlawfully deduction of wages & unpaid accrued holidays.

Currently still employed, suspended for many months now for an unresolved disciplinary action raised by the discriminator, grievance on discrimination were ignored.

She has hard evidence on nearly each of the acts. Employer refused to provide SAR and respond to discrimination questionnaire for now 9 months.

Case will go through a judicial mediation, however employer is making an offer within ACAS of just over  3rd of the estimated value of the claim.

What amount or proportion is considered to be fair for a settlement in those circumstances, also considering  that she will loose her job. Finding a job in her current state will be a big challenge.

Also do you think it’s better to go through judicial mediation rather than ACAS, in case judges could provide more guidance and see for a fair resolution? All asked is reference. Am I missing anything? is any other approach to consider given she is still employed?

Thanks a lot in advance!

Estimated by who? Also, was the estimate based on hearing both sides of the story?

schedule of losses has not been presented yet. It's a calculation made on the grounds of the claim including injury to feelings, interest, personal injury, loss of wages, holidays. At this stage no hearing of both sides story has taken place, apart of the response to claim which is, of course, a denial of events or refutable justifications.
However, regardless the actual value of the claim or whether is or not an strong case, I hoped to have some insights on what that proportion would be assuming it's a strong case. And whether judicial mediation is a better resource than ACAs, to resolve the dispute an end all this.  

Without seeing the basis on which you've calculated the figure (especially 'injury to feelings' which is very rarely anything like as high as people believe - the cases reported in the media are reported because they are exceptional, not because they are some sort of guideline), and knowing nothing about the strength of your case (people usually vastly over-estimate this aspect simply because they are so bound up in the whole business), that's quite simply impossible to answer.

Independent advice from a specialist employment lawyer who has all the facts is the only way to get any sort of valid guideline. That would seem to be a sensible next step and money well spent, given the amount of distress this will all be causing.

Uyuni

Undervalued said:

  

But have you had any independent legal advice that the claim (if won) would yield anything like three times the employer's current offer?

Yes there are occasionally headline grabbing awards but the vast majority of cases won at tribunal yield well under £10K.

You also need to factor in the huge amount of stress (and risk) in fighting a case against a big employer. Whilst some will readily settle cases that they would most likely have won, just to be rid of the problem, others will happily spend far more on defending cases than it would have cost to settle. What is this employer's normal approach?

You don't say how much this "third" is in cash terms. If serious amounts of money are involved, get some proper legal advice (i.e not ACAS).

Finally remember that even if the case is ultimately won at tribunal. they have no power to order the employer to provide a reference. An agreed reference as part of a settlement can be worth far more than a few extra £K in compensation, as it may be very difficult to get a decent job without one.

Thanks for your comment, on tactical aspect, one of the issues are that if she settles now she'd be without job at all. I'd understand there is a severance consideration here aside of the actual aspect of the discrimination case, as she is still employed. unfortunately there is no space for her in the organisation so this cannot be asked on judicial mediation. However being without job will affects us on personal matters at this time, she needs to show income through employment.  

On terms of calculation that goes up with the law definitions on the severity of the injury band c of vento guidelines, and the payments owned on wages and holidays. 
the main reason to settle is precisely an agreed reference and other confidential aspects.

Thanks again.