Good luck, and remember that "final" offers are almost never final.

sp, thanks. What do you mean about final offers are almost never final? I have more horrors awaiting me?

sp, thanks. What do you mean about final offers are almost never final? I have more horrors awaiting me?

People tend to make a settlement offer saying "take it or leave it, final offer". They then inevitably come back a week later with a higher offer.

If they want to settle, great, but don't let it distract you from preparing your case.

Do you have legal help for this?

 

To be very franky with you, if there is no tribunal order requiring you to pay towards the bundle, then I think paying a single penny is very foolish and I am not sure why you are doing it. The normal position is that the claimant does not pay towards the bundle. Paying random small amounts is not going to get them to release the bundle. It seems to me that you are encouraging their behaviour.

 

If they are not releasing the bundle, go straight to the Tribunal to seek an order that they do so. I'm not sure why you are hesitating.

steampower, I have to report you were right! I had yet another letter from the r's demanding *more* money before they will release my copy of the bundle.

I have taken your advice and sent an application to the tribunal asking them for an order to the r's to release it within two days or face strike out.

I mentioned I had sent two lots of money to them already and that the judge has already directed they supply the bundle by such and such a date on three different occasions now.

Re the settlement negotiation, they have not confirmed they will include my agreed reference, so I am quite ready to bring them to justice instead.

PS. I was supposed to have received it by early August, nearly four weeks ago.

That's great that you have applied to the Tribunal, well done.

Regarding the reference - it is unusual for employers to agree to give a positive reference, but most will agree to give a neutral reference just confirming job title and dates of employment as part of a settlement.

Update: Just had an email letter from the e.t. ordering the r's to release the bundle to me without further delay.

The problem with the reference was they wanted to include a heavy disclaimer hinting "avoid this person".

I might just as well have a hearing, as planned.

Hon, you are too emotionally involved. No one gives a stuff about where the bin is - not me and certainly not the judge.

 

Get your head out of the detail, look at what is important, use the financial regulators where required and make sure the ET is only about employment issues, and significant ones at that.

 

Otherwise, you sound like a rambling madman.

 

What are the two or three key matters you are raising? Get focused on them. More than that = mad and easy to discount.

emmzzi, you might be interested to know I had a letter from the regulators today saying my complaint has been assessed and is now being forwarded for investigation.

According to their website, only 30% of complaints reach this stage.

I am hopeful that I will be 100% vindicated.

Good news.

I don't understand what you mean by the disclaimer.

It relates to "reason for leaving".

Oh, I see. That's quite unusual. An agreed reference usually does not refer to the reason for leaving at all.

emmzzi, you might be interested to know I had a letter from the regulators today saying my complaint has been assessed and is now being forwarded for investigation.

 

According to their website, only 30% of complaints reach this stage.

 

I am hopeful that I will be 100% vindicated.

That is great, but not really about justice via the ET. You need to get the issues separate in your head with only the appropriate elements for each authority.

Update: was due to sign settlement agreement (which included repayment of the money I contributed for the bundle) and the agreed reference was perfect. However, it appears the r's had no idea I had complained to the regulators, which might have voided one of the clauses, rendering the agreement breached, once they did find out.

My lawyer mentioned this to them. They have gone ballistic, demanding I disclose my complaints to HMRC and ICAEW together with all the supporting evidence I supplied, on request from ICAEW.

I was about to prepare a photocopy of the complaints, when it struck me that surely it is unethical for them to be shown specific details whilst being investigated by these bodies. They are huffing and puffing I must have breached confidentiality.

The way I see it, I felt I was doing them a favour by settling early, but once again they are acting as though I am the baddie.

What should I do? Are they entitled to view the complaint documents?

Hello there.

I'm not an expert by any means, but I wouldn't be inclined to show them the complaint documents, pending other people's advice.

Have you asked the ICAEW? But I would have thought your lawyer would know the answer.

HB

I rang ICAEW up, but the chap is away until Monday. I have asked the lawyer to hold disclosure until I have checked with them.

The lawyer says disclosure of the complaint now means they can't claim a breach and refund of the money when or if they find out later, as it says there aren't any other complaints besides [the ones they already know about].

HMRC say on their website you should not tip off someone you are complaining about. However, apparently the ICAEW one relates to issues arising from my employment.

I should add, the r's have agreed to pay the lawyer's £500 fee to look at the agreement for me. The lawyer is now upset as she says it is going beyond her remit (and of course, they will refuse to pay any more).

Oh dear. That is unfortunate. I don't think your lawyer should have told them.

Most settlement agreements would only bind you in relation to confidentiality in the future. Your position should be that you were entitled to make the complaints and that they were entirely legitimate given the nature of the employer's conduct.

I would be very careful about sending them a copy of the complaints as that will give them more ammunition, particularly if anything you said to the regulators is not 110% accurate.

My suggestion is to propose a clause in the settlement agreement which says that you will withdraw the complaints.

I'd suggest that the lawyer is upset because she's out of her depth.

She ought to be aware that no clause in a compromise/settlement agreement can prevent you from making a protected disclosure to HMRC or any other relevant regulatory body.

She should also know that her role is to advise you

Hi steampowered.

Have a look at 43J below, an admittedly rarely mentioned section relating to confidentiality in the protected disclosure part of the ERA1996.

http://www.legislation.gov.uk/ukpga/1996/18/part/IVA

Thanks for pointing that out. Any disclosure will be protected, provided that it falls within the definition of 'protected disclosure':

(a)that a criminal offence has been committed, is being committed or is likely to be committed,

(b)that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,

©that a miscarriage of justice has occurred, is occurring or is likely to occur,

(d)that the health or safety of any individual has been, is being or is likely to be endangered,

(e)that the environment has been, is being or is likely to be damaged, or

(f)that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed.

The lawyer is actually very sharp. Her reasoning is that as the clause refers to any current complaints, so was concerned that when/if the r's found out, they would immediately cry, breach and demand the settlement money back. She got the reference sorted to my liking and inserted things left out, such as future personal injury and accrued pensions.

The word back is the r's still want to settle, with a clause inserted I disclose all my complaints.

I have reservations in disclosing this whilst a sensitive investigation is taking place. Plus of course with HMRC there are tip off cautions.

Disclosure might prejudice the whole thing.

If the hearing goes ahead, then it would probably be disclosed anyway, subject to advice.

The lawyer was upset as their lawyer completely freaked out and ranted about how I must have breached confidentiailty and to return all "confidential" material. (I do not have any improperly acquired material, but the thought was made to cross her mind by the other lawyers.)

It is no skin off my nose to have the hearing and be vindicated as I have not behaved improperly at any time.

The allegations are all rock solid and substantiated with evidence. Because they are very plausible, the r's have played the "confidentiality" angle to the hilt, as well as going to great lengths to discredit me in the eyes of my peers.

I am escalating the issues in line with my professional body's code of conduct and ethics.

I would not be willing to withdraw the complaints, steampowered, as it is in the public interest for them to be investigated. Would it be ethical to do so, having raised them?

They are very keen to get the COT3 and gag me, so my thanks in advance to everyone who has helped!

Personally I think the piece of legislation posted by mariefab is a really superb answer to the confidentiality point.

I admire your attitude about having the complaints investigated.

I wonder if would be worth simply going back to them and saying something like you feel that the employer's previous conduct was in breach of the law and hence a complaint to the regulator was entirely justified, but notwithstanding this you would be willing to agree to a settlement agreement including a confidentiality clause. You can't really play it any more aggressively than that if you still want to keep going with the complaints. This might give the impression that you are willing to drop the complaints without actually undertaking to do so (provided that the issues you are complaining about fall within the definition of protected disclosure posted above - it is important to emphasise this point).

I'm assuming that their 'confidentiality' fears relate to the public interest disclosures and that the disclosures you made to HMRC etc. are the same as those you had already made to the employer.

The point I was trying to make is that they can freak out as much as like about this but they can't gag you no matter what you sign.

http://www.legislation.gov.uk/ukpga/1996/18/section/43J

This means that there is no duty of confidentiality with a public interest disclosure.

Even if they include a clause in the compromise agreement stating that you will withdraw the complaints and have no further communication with HMRC and you sign it in blood; that agreement automatically has no effect. It is void by operation of law, i.e. 43J.

So, you will still be free to continue to co-operate with HMRC.

steampower, what exactly is a confidentiality clause? What would it say?

Mariefab, yes, the issues are the same as in my et1 claims. In line with resolving an ethical dilemma I am escalating the issues to the next level, given the r's refusal to let me raise them - at every level - even to the extent of conspiring together to produce sworn witness statements backing each other up that legislation allows them their conduct, to mislead the tribunal.

The problem with the cot3 agreement is not so much my civil right to raise the statutory complaints, it's more to do with the nature of the contract itself, as I would be agreeing there are no further complaints, which would be in breach, given that there are, public interest or not.

My lawyer thought it could be got around by my disclosing as part of the agreement there is a regulator's inquiry going on as it is *a matter arising from my employment* as per the wording of the clause.

I've been sent a new draft with the r's inserting a clause I disclose ALL correspondence between me and the regulators and disclose ALL documents I am relying on.

I have come to a decision. As the regulators have clearly marked their correspondence, "private and confidential" and there is an ongoing investigation, it would it would be improper and against my professional code of conduct to disclose such correspondence to a third party, especially not to the party being complained of.

They have upped the contribution to my lawyer to £1,000 with the proviso if the cot3 is not signed off to their satisfaction, they will contribute only the first £500, as per contract.

Once again they are using money to try to force me to do something against my morals. Not for any sum of money will I disclose the "private and confidential" correspondence of their regulator in respect of themselves.

Your lawyer is mistaken, not very good at her job and has caused this current problem.

After you told her that you'd complained to HMRC and they were investigating she should have kept her mouth shut about it.

You would have signed the agreement as it was. If they were subsequently prosecuted and you were a witness the agreement would not have been breached

Instead she chose to tip them off. I can only conclude that this is because she doesn't know or understand the legislation covering protected disclosure and feels that HMRC are perfectly happy to have their investgations revealed to the potential defendants.

Her job is to advise you about the meaning of the written agreement.

It's no part of her remit to worry about what happens to the Respondent after it's signed.

In this context *a matter arising from your employment* would be the claims that you are making at the ET, and any other potential employment related claims that you are currently aware of in which you would be the claimant.

The HMRC complaint is not a matter arising from your employment.

I don't know much about your line of work, but I know that HMRC has regulatory powers.

They will investigate and, if appropriate, HMRC will bring claims against your former employer.

How do you suppose HMRC (or anyone else for that matter) would view your conduct if, after your lawyer informed your former employer of your complaints, you (a potential witness against them) disclosed to the party under investigation details of the complaints and the evidence against them.

P.S. Where did you get the idea that the claimant produces and/or pays for the bundle?

In Employment tribunal claims the bundle is almost always produced and paid for by the Respondent employer.

Have you received the bundle yet?

steampower, what exactly is a confidentiality clause? What would it say?

Something like 'the employee undertakes to treat all matters arising in connection with his/her employment or its termination confidential and not to disclose the same to any third party'. As above such clauses are not effective to stop you making a protected disclosure.

I've been sent a new draft with the r's inserting a clause I disclose ALL correspondence between me and the regulators and disclose ALL documents I am relying on.

If you are not comfortable to disclose, then I guess you just have to play hard-ball and be prepared to take it to Tribunal if necessary.

I have come to a decision. As the regulators have clearly marked their correspondence, "private and confidential" and there is an ongoing investigation, it would it would be improper and against my professional code of conduct to disclose such correspondence to a third party, especially not to the party being complained of.