I am taking ex-employer to an Employment Tribunal for age and disability discrimination. Up until 2 weeks ago they were adamant that I was not going to get a penny from them and they have engaged a very expensive lawyer. They had denied all allegations of the existence of documents that contained discriminatory and offensive remarks, documents which I had seen and knew existed.

However, at the Preliminary Hearing in December their lawyer was put under pressure by the judge and eventually conceded that the respondent did not deny the existence or contents of such documents. The judge subsequently issued the Case Orders and Case Management Summary document. Within that he has put on record that the respondent, via their lawyer, does not deny the existence of the offending documents. Which obviously means they'd have to disclose them as they can't now say they don't exist. I have applied for the respondent's defence to be struck out on the grounds that it is vexatious and completely contrary to what they have subsequently conceded at the Preliminary Hearing. I have not yet had a response to this request from the tribunal.

Following the tribunal issuing the Case Management Orders and Summary the respondent's lawyer has suddenly made approaches to settle the case. However, even after negotiation the amount offered is probably only 50% of what a tribunal would award (they started at around 15% of claim value).

Therefore, should I settle now or should I wait to see if the Tribunal strikes out their defence ? It is difficult to see how they can defend their case anyhow even if it is not struck out. If they disclose the documents then they are bound to lose, if they don't disclose then how can they justify that to the tribunal having already admitted they exist ?

How much would that 50% be?

Also if they settle as part of the agreement - Have something in place that says they will pay costs for settling the issue at hand?

The settlement puts it in the top end of the lower band of Vento scale. I would argue in court it should be at least middle range of the middle band, possibly higher.

The proposed agreement says that neither side will pursue the other for costs. I am self-represented so don't have any costs.

My issue is that the fact that they have gone from "won't pay a penny" to actively wanting to settle makes me think I'd be selling myself short if I did accept. Such a big turnaround in their attitude surely means they think they can't win in tribunal ?

If paying out costs less than the solicitors going to court, they'll make an offer. Often it's nothing to do with the merits of the case, so don't assume it is. It's just about cash.

If paying out costs less than the solicitors going to court, they'll make an offer. Often it's nothing to do with the merits of the case, so don't assume it is. It's just about cash.

Yes I am aware of that. But it seems to me that they now have no defence. The only defence in their ET3 was a denial of the documents' existence. Then they admitted the existence of them at the Preliminary Hearing. So surely their ET3 defence is no longer valid ?

I've no experience at all with these procedures for this area of law – but were these statements signed as a statement of truth?

Yes I am aware of that. But it seems to me that they now have no defence. The only defence in their ET3 was a denial of the documents' existence. Then they admitted the existence of them at the Preliminary Hearing. So surely their ET3 defence is no longer valid ?

You might be straw clutching there - the judges view of what the documents mean may be very different to yours.

Bird in the hand and all that... make a counter offer and see ?

What else do they expect for their money? A confidentiality agreement? I would not wanting to sign that off as currently you have more leverage as you know the data exists so you can go to the ICO and they will get their earwigging made public even if you only get a token sum for their breaches of the DPA/GDPR.

All these things are a bit of a gamble, reject their settlement and if the tribunal awards you less then you pay their costs.

So how about asking for a copy of the documents and then evidence they have been destroyed as part of your settlement. That way any confidentiality clause becomes meaningless as long as you dont publish the ofending articles. Even haggling over these sorts of points will cost the employer a goodly sum in legal fees and as long as you dont negotiate in bad faith they will be hard pushed to withdraw from their current position without it harming them..