Do I need a new claim? (wrongful dismissal/breach of contract)

[voicer]

Just out of interest, how do you mitigate your loss if you knew that by resigning immediately without notice would mean that you could be out of work for at least 3 months (planned well in advance due to personal circumstances). To add context all this happened 3 weeks before Christmas and there were other circumstances which meant that I wasn't available for a job interview for an additional month after, this was pre-covid when interviews were face-to-face.

I ask because I am aware that the tribunal expect you to mitigate your loss if you resign and then claim constructive dismissal case.

[ULA]

The tribunal would expect to see proof that you have done everything that you can to find another job. They would not necessary expect you take the first job that come along, particularly if it is far lower paid but they would want evidence you had been actively looking for another job. That could include taking on a temporary position whilst you found a suitable full-time position.

It is for the respondent to prove that you have not made ‘reasonable efforts’ to mitigate your loss. It is therefore advisable to keep a log of all your job searching activity such as, time spend job searching and when, number of applications you have made, copies of job adverts you have applied for etc. If there have been time periods when you have not been able to search for a job you need to be able to provide reasons for this. Ensuring you have all this evidence will give you something to counter the respondents claim and the tribunal is less likely to agree with the employer to potentially reduce the compensation award.

[voicer]

Thanks for the response Ula and sorry for taking long to come back, been busy soldering on with the claim. I was made a settlement offer through Acas today after a few months since the last one and surprisingly the offer has reduced by 25% and of course I rejected it since I know the claim will be worth more if it reaches the final hearing.

However, I told Acas that I would accept much less than I originally said and I'm now thinking this was a mistake as I had no real time to properly think about it and the Acas conciliator can come across as very stern. The offer expired at the end of today, so my question is can I raise my minimum settlement amount if they do come back as having accepted that offer? Or can I just reject it and carry on?

Moving forward I will also disagree to any mediation if the offer has not been accepted although it is below what I now think it should really be.

[ULA]

Sorry its been a long day and trying to understand what has happened. Company has come back and made a reduced offer which you rejected but said you would be prepared to accept £Y (less than you were originally asking for) which I presume was above their reduced offer. Now you are wanting know if they come back and accept your reduced offer can you just say no actually I have changed my mind.

[voicer]

Spot on! That's exactly it Ula...I'm thinking the offer I made is actually too little and below what the Judge said I should be looking at from the 1st PH (from vento bands etc.) after the respondent complained the 'Schedule of loss' was too high. Their main argument is that I was able to find employment quickly and their main defence against the discrimination and unfair dismissal claim is that most of it is out of time as opposed to it didn't happen and there's clear evidence for continuing acts which would put the claim as 'in-time' with a 2nd PH is due soon.

However, the Respondent's offer only lasted till the end of today and they have not come back with my counter offer. That said I only spoke to Acas about it today as I've been ignoring their calls, thinking it was somebody else. They actually said that the Respondent extended their offer by one day on the basis that Acas wasn't able to reach me. Technically speaking, the offer is out of the window!

[ULA]

The Respondendt gave you a time for responding, did you agree a time with ACAS for your counter offer to be "on the table" and considered by the Respondent?

[voicer]

The Acas person said she'll put the counter offer to them and if I didn't hear from her at the end of yesterday, I should take it as they have not accepted. She didn't ask me regarding how long I will keep the counter offer open but respondent's was open for a week extended by a day.

I no longer wish to settle the claim through Acas, but I will do if they accept my counter offer but that is as far as it'll go. I will also not participate in any mediation moving forward even if I previously said I would, if this counter offer is not accepted.

My counter offer is the lowest I'd go, the respondent defence is very weak and their main argument is that some of claim is out of time as opposed to the allegations made didn't happen. In fact about 80% of the evidence was provided by them through a DSAR which they delayed for 3 months but this is vital as it showed that the events are all connected.

I wouldn't have known the real reason why they took the steps they did, had it not been for the DSAR which would, in my view, put all the claims as in time. This is because I made the tribunal claim immediately after receiving the DSAR (on the same day in the evening).

[ULA]

Negotation via ACAS can carry on whilst the tribunal process is continuing. I was just wondering if you had a agreed a time that your offer would be on the table. If it has now lapsed the "ball is in the Respondent court" as to whether they want to come back with anything further or just let the discussions via AcAS lapse. This may be the case given a 2nd PH is due soon they might want to see the outcome of that before making any further offers.

[voicer]

Thanks Ula, can I please ask if there's any instance where a claimant can say he doesn't wish to settle via Acas or have Acas carrying on making offers and let the process go the end? (i.e. the final hearing).

[ULA]

The role of the ACAS conciliator is to try to settle your claim but you can just say that you no longer want to make any offers of settlement yourself for the time being (never close the door). However at any stage up to the final hearing, if the Respondent wanted to make an offer, the conciliator woud have an obligation to put this to you.

Also just be aware that the Respondent, if you do not engage with the process of considering any offers they attempt to make, might try and argue a case for you, as the claimant acting unreasonable, in that you have conducted your part of the proceedings in "a scandalous, unreasonable or vexatious manner". I am not saying they would or that this argument would be accepted by the Tribunal, but a possible tactic you need to be aware of.

[voicer]

Hello all,

Sorry it's been a while since the last post but a lot has happened since. I have some very disturbing news today which is sad and causing me a bit of distress, so before I tackle it, I wonder if anyone can help here first.

Basically, I had a public PH and at the very last minute, the respondent produced a documents bundle they hadn't agreed with me and sent it to the ET. In the documents bundle was a superseded ET1 which I had prepared myself and include some very personal and intimate details. However, after seeking legal advice, I was told that I didn't need to include that much detail and received a template format for an ET1 as written by solicitors which I used and removed some of the details.

One of those details was to mention that I had sadly made an attempt on my life and explained how I had done it using a very 'uncommon' way (vehicle CO). I have recently heard from a former colleague at respondent who is known as a bit of a joker and he joked that he is trying to take his own life and asked where he can get CO from. Not only was this out of the blue (as I hadn't heard from him in a while) but it was too specific and couldn't be a coincident. This colleague is not involved with the ET claim in anyway nor is he mentioned in it.

The respondent argued that the bundle, including the superseded ET1 is a public document and they haven't breached any GDPR law but I said that they should have agreed the bundle with me and some sensitive info could have been redacted amongst other things my date of birth, address, background etc.

Only one member of the public attended the PH from my side and she said that she had not seen the documents bundle but that the clerk had apparently asked if she had documents related to the case but she said no, she didn't need them.

I believe there is a GDPR breach despite what the respondent said and also any idea how the colleague could have got the information?

[ULA]

ET1s and also the ET3s are not public documents and cannot be obtained from the employment tribunal office, so they were not obtained that way.

[voicer]

Dear Ula,

Thank you, this is very helpful to know. Are documents bundle public documents though? I have asked the respondent to say who they have disclosed the bundle to which they didn't agree with me prior to sending it to the ET but they haven't responded and now former colleagues are coming out with details in from the documents unexpectedly. I'm pretty sure that they have seen it, nobody can be that specific without reason.

Much appreciated.

[ULA]

Document bundles will not be public in terms of people out in the public domain having sight of them. However the respondent will have access to the bundle, any witnesses being called by the respondent will have access to their witness statement and other relevant documents that they may be asked about in support of their witness statement. In addition their representative, if they have one, who if they are solicitor with support staff will have access to the bundle but under a duty to keep all matters confidential