Employment tribunal

[Emmzzi]

There is no right to be acompanied to an investigatory interview; only the disciplinary itself.

 

There is no right to reduced hours.

 

There is no right to know if peers have been disciplined - it’s private!

 

There seem to be things you think are unfair, which may be so, but that does not make them illegal or unlawful.

[dondada]

Here is the website

 

http://www.guildhallchambers.co.uk/uploadedFiles/Howtowinadirectdiscriminationcase_SS.pdf

 

Please make sure you do the schedule of less favourable treatment

 

It will greatly assist the Judge

 

But whatever you do, highlight the victimization case strongly

 

I will say that a thousand times as it is your strongest

 

If and when this gets to Disclosure, make sure you ask for the "first outcome" letter

 

If there wasn't any, it will put them in a bad position before the Judge

 

Whatever you do, highlight the victimization case

[dondada]

https://www.farrer.co.uk/how-we-help/employment-issues/WorkLife/WorkLife/Dates/2017/12/Update-on-EHRCs-steps-to-prevent-sexual-harassment-in-the-workplace/

 

 

I have just seen the above website

If and when you do a Discrimination Questionnaires, you could use this as a guide to ask relevant questions

Remember Questionnaires are no longer mandatory but it is a good idea to ask anyway

[Ayho]

Hi everyone. Just a little update. Case was accepted in full. There is scheduled preliminary hearing over the phone in middle of September. Meanwhile before company was aware of the legal action taken, my friend had a disciplinary hearing for 2 mistakes she had at her work- one recent and one from 2 months ago. That seemed odd, as from what I understand these mistakes are very common and of small value. She first had initial interview about those with area supervisor and concluded it is all done and gone, but later on received a letter inviting her to a disciplinary hearing. The letter talked of these mistakes as gross misconduct, but the consequences outlined were warning or final warning. She went to the disciplinary few days ago and waiting for the results of the investigation. Personally I am very suspicious that this was part of effort to get rid of her after her superiors believed the investigation about her complaints was concluded. But I will wait for the outcome of the investigation before it gets included in the claim as part of the victimisation claim.

[Ayho]

Emmzzi wrote :

There is no right to be acompanied to an investigatory interview; only the disciplinary itself.

 

There is no right to reduced hours.

 

There is no right to know if peers have been disciplined - it’s private!

 

There seem to be things you think are unfair, which may be so, but that does not make them illegal or unlawful.

 

 

Thank you. Yes, I checked those now. Seems unfair, but you are right.

Is it better to take these claims out of the court claim if/when I amend the claim or just leave them in ?

[Ayho]

https://www.farrer.co.uk/how-we-help/employment-issues/WorkLife/WorkLife/Dates/2017/12/Update-on-EHRCs-steps-to-prevent-sexual-harassment-in-the-workplace/

 

 

I have just seen the above website

If and when you do a Discrimination Questionnaires, you could use this as a guide to ask relevant questions

Remember Questionnaires are no longer mandatory but it is a good idea to ask anyway

This is very good website, thank you again dondada. It has lots of other useful information.

Btw there are few days left, but still don't know of any response from the company's solicitors to the claim.

 

My friend was approached by one of the company's high level managers, asking for a meeting to see what the company can do to rectify the situation. I don't think they are worried about the court case, but more of it going public and damaging the reputation of the company. I suspect that because he is very high up manager and also I included in the claim request for the court to remove any gagging clause in her contract ( there aren't any), hinting that she wants to go public.

 

I advised her to say that if the company is really trying to rectify the situation to ask for the company to accept the claim and negotiate a settlement.

 

On another positive note my friend managed to find a witness for the day when her manager was shouting and screaming at her. I don't know if he heard everything, but he is happy to confirm that she was harassing her, something the manager and the deputy have been denying. So this will greatly diminish their credibility, show they have been working in a team to discredit her and also assist greatly her harassment and victimisation case.

 

My friend also heard that the shop in question is going to be closed soon. This is highly profitable shop and I am very suspicious that it is done to reduce the damage that can occur from the case going public. My question is : if the company decides to settle what kind of compensation to seek ? Obviously a solicitor's advice is needed and will be taken, but it will be good idea to have amount in mind, as the case might settle quickly.

 

To summarise the claim is about months long campaign of sexual harassment from multiple employees, inaction from the manager to stop that campaign, which turned out to have racist bases ( claiming if she was born in UK she would just laugh about those), episode of half an hour verbal abuse by the manger in front of customers. Then company's multiple failings to investigate properly, depriving her of key evidence ( CCTV not obtained), ignoring evidence (employee chat ), siding with the harassers, not sending outcome of investigation, pretending they have sent outcome of investigation, but it got lost somewhere, just popping in casually without prior notice for interview and to inform about outcome of investigation . The company also braked its own rules and its own grievance procedures.

 

I believe there was attempt from the company to fire her, as shortly after the grievance finished she was questioned about minor technical mistakes she did at her work ( one was 2 months old and another recent one). She confirmed she did these mistakes . These mistakes happen often in her kind of work and happen to all the employees. But then she was asked to come to an disciplinary meeting and the letter sent to her talked about these as gross misconduct. This letter was received before the company knew of the ET case. At the meeting however the company already knew of ET case and she received no disciplinary whatsoever.

 

My friend had psychological problems for months now due to the stress from harassment and following investigation, grievance and court case.

 

My friend has been having psychological problems for months now due to harassment and the following events. Sleep problems, anxiety etc. She went to see the gp months ago and he described it as depression. Since then she hasn't improved much, but is very reluctant to go to gp again. I think she is irrationally afraid of being diagnosed and treated for psychological disorder. I know this is silly and not helping her health, but it is her life ...

[dondada]

This is very good website, thank you again dondada. It has lots of other useful information.

Btw there are few days left, but still don't know of any response from the company's solicitors to the claim.

 

My friend was approached by one of the company's high level managers, asking for a meeting to see what the company can do to rectify the situation. I don't think they are worried about the court case, but more of it going public and damaging the reputation of the company. I suspect that because he is very high up manager and also I included in the claim request for the court to remove any gagging clause in her contract ( there aren't any), hinting that she wants to go public.

 

I advised her to say that if the company is really trying to rectify the situation to ask for the company to accept the claim and negotiate a settlement.

 

...

 

 

The company would NEVER accept the Claim

 

You could ask them to submit a No-Contest but I still don't think that would happen

 

My suggestion is that you do all negotiation via ACAS

 

The company would, most likely, ask for a gagging clause

 

You would have to decide what you want

 

Your friend is already stressed, do you want to continue?

[dondada]

My friend also heard that the shop in question is going to be closed soon. This is highly profitable shop and I am very suspicious that it is done to reduce the damage that can occur from the case going public. My question is : if the company decides to settle what kind of compensation to seek ? Obviously a solicitor's advice is needed and will be taken, but it will be good idea to have amount in mind, as the case might settle quickly.

 

...

 

 

If the Company wishes to settle, they will come up with a figure

 

At that stage, you could ask a solicitor to help with the negotiations

 

I remember you couldn't get a no win no fee lawyer?

 

Once you get to the negotiation stage, you tend to get lawyers who are interested

 

They will come up with a realistic assessment but you could lose a bit

 

I would suggest you wait until you get to that stage

[dondada]

 

I believe there was attempt from the company to fire her, as shortly after the grievance finished she was questioned about minor technical mistakes she did at her work ( one was 2 months old and another recent one). She confirmed she did these mistakes . These mistakes happen often in her kind of work and happen to all the employees. But then she was asked to come to an disciplinary meeting and the letter sent to her talked about these as gross misconduct. This letter was received before the company knew of the ET case. At the meeting however the company already knew of ET case and she received no disciplinary whatsoever.

 

 

...

 

 

This is potentially a further case of victimization

 

I would suggest you write to the ET and add it as another victimization incident (event)

 

The sooner the better

 

Have you amended the original ET1?

 

I remember it wasn't perfect then

 

I accept it can never be perfect but you must have seen little mistakes and have researched more since then?

 

Best of luck

[JasJules]

The additional complaints may be dealt with as a separate claim at this stage, not least given you will need to involve ACAS in relation to this complaint before you can then lodge a claim in the Tribunal (and thereafter seek to join the two claims).

 

ETA - also does your friend have house insurance?

[dondada]

The additional complaints may be dealt with as a separate claim at this stage, not least given you will need to involve ACAS in relation to this complaint before you can then lodge a claim in the Tribunal (and thereafter seek to join the two claims).

 

ETA - also does your friend have house insurance?

 

 

If you wish to add new complaints to an existing Claim, you don't need to contact ACAS again (see Science Warehouse Ltd v Mills UKEAT/0224/15/DA)

 

 

You have the right to bring in a separate Claim, however, I wouldn't advise it in this circumstances

 

The new complaint would strengthen the previous one so I think it is best to add it to the existing complaint

 

The other side would seek to oppose it though but if the event happened after ACAS has been contacted then they will have no grounds in the opposition

[JasJules]

Interesting thank you for that - that case disagrees fundamentally with previous law I have relied upon!

[Ayho]

Hi everyone.

Just a little update.

The company directly is trying to negotiate a settlement before the preeliminary hearing at the end of this month.

 

We went to a barrister and she prepared schedule of loss.

Next day my friend met with the company representative ( one of the top managers) , who was shocked she used legal professional.

Reason being was that they offered 8 times smaller amount than the estimate in her schedule of loss.

 

Not sure, if I am allowed to give figures, so will just speak vaguely.

My friend gave them reasonable offer, about 38% lower than the amount in schedule of loss.

The company representative called her next day, asking for another meeting for next week, probably trying to lower the amount.

My friend accepted the offer for meeting, but is not going to change her offer.

 

The barrister told us she won't be able to take the case on no win no fee basis or anything similar, as the claim amount is not high enough to justify it for her.

But she is happy if we use her services whenever needed to minimise costs.

Edited December 20, 2018 by dx100uk
spacing

[steampowered]

Thanks for the update. Its really common to negotiate over a settlement figure, and for the parties to start quite far apart.

 

A settlement of 38% less than what you are claiming would in most cases be a very good settlement. People often get a lot less than that. As well as the chance of not winning, you have to consider that even if you win you might get less than you asked for, or in many cases what is known as a 'Polkey reduction'. The barrister would have asked for the most she thought could reasonably be asked for.

 

So your friend should be prepared to negotiate a lower figure - and work out in advance of the meeting what her negotiating strategy is, and what her 'proceed to Tribunal' settlement figure is.

[Ayho]

Thank you for your advice. The barrister actually went middle of the road, the figure she gave was between the lowest and highest of expectations. It depends of course to all parts of the claim being upheld.

 

The amount my friend asked for was also based on what it would cost the company to defend the claim, regardless if it is sucsessfull or not, as it is quite complex and will take up days of solicitors work - the barrister told us the hearing is most likely to last 3 days.

 

Btw based on your experience what percentage of the claim she could get via a settlement ?

[dondada]

Polkey Reduction happens in unfair dismissal cases

 

Is this an unfair dismissal case or sexual discrimination/harassment case?

 

I think you went to a solicitor, not a barrister.

 

Barristers are not allowed to deal with members of the public except they have direct access

 

If a professional has assessed your case and given you a figure then you have a reasonable figure

 

I will put that before the other side and ask them why they came up with such a low sum

[steampowered]

It is difficult to say what an appropriate % settlement would be without knowing:

 

1) How strong the case is, i.e. what % chance there is of the claimant winning

2) How likely it is that the claimant would be to get the full amounts asked for in the schedule of loss if successful

 

However, I think it is fair to see that most settlements are for less than 50% of the amount claimed. In many cases much less.

[dondada]

I agree that it is difficult to assess the Claim since we don't know the full facts

 

However, I believe since the "barrister"(most likely solicitor) has come up with a figure then it must be reasonable

 

The OP should go back to the other side and ask why do they have such low sum

 

Then he would be in a better place to make a decision

Edited December 20, 2018 by dx100uk
quote

[dondada]

Interesting thank you for that - that case disagrees fundamentally with previous law I have relied upon!

 

 

Hi Jasjules,

 

 

Please could you give me the link to the old case law you talked about here

 

Thanks

[JasJules]

It was sent out under the Employment Lawyers notices that I have.

 

just was that any element of a claim not previously referred to Acas had to be.

 

I can possibly find in Lexis if you are desperate for an actual case.

Edited December 20, 2018 by dx100uk
quote

[dondada]

I would be truly grateful if you can find the particular case

The more cases you can get, the better

Thanks in advance

Edited December 20, 2018 by dx100uk
quote

[JasJules]

Will have a root around. I must confess I tend to just double check against PL or Lexis before making assertions to the Tribunal in any event and as yet this issue has not arisen in recent times so it was just a consideration in the back of my mind. Will get back to you.

[JasJules]

Annoyingly I can only find reference to Mills as above. I suspect the earlier case law has now been removed assuming my recollection was correct.

 

Interestingly I have also found a case that says if the company name is wrong in the ACAS Certificate this is not a barrier to pursuing the claim when correctly cited in ET1.

 

And a case where a second respondent may be adduced to a claim even when not noted in ACAS using the case management terms in Selkent.