Negotiation and settlement

[GoldenRaven]

Before I answer your questions 1-3 can you confirm:

1, Date of witness statement exchange?
2. Date of final hearing?

Answer to your Q4 you have a duty to disclose all information related to the claim whether it support sor otherwise the claim so yes you would need to share the report with the respondent whatever it states.

Hi ULA ,

Thank you,

1, Date of witness statement exchange: 28 February 2024
2. Date of final hearing: 16 September 2024

[ULA]

Given that the witness statement exchange is due later this month and the final hearing is not until 16 Sept. I would suggest email the respondent or their representative and ask if you can agree between the parties a new date for exchange of WS.I would not say why but that you are not yet in a position to complete and exchange by 28 Feb and given the hearing is not for another 6 months you do not see any adverse reason for an extension not being agreed. Insert a date by when you can agree and so long as it is not too far out from 28 Feb. State that you believe that this should still allow both parties to fully progress the case to hearing with no impact.

If this is agreed then each party will need to write to the ET, copying in the other party detailing the agreement to the extension of exchanging of WSs to xxx date. Alternatively, you could get the respondent's agreement that as you first proposed the extension of time, you write to the court explaining the position, that you have agreement of the respondent and copy them in.

I hope that by now you have a medical expert appointment lined up and an estimate of time to produce the report. The full report will have to be sent for inclusion in the bundle, which I presume the respondent is preparing, well in time before the hearing bundle is due to be finalised as per the Case Management Orders, albeit disclosures duties apply beyond this.

I believe that answers all your post #29 questions.

[GoldenRaven]

Thanks, ULA, it may seem that I take so long to read these posts, but it's only because I don't always have my login handy.

I have taken all the steps you suggested in your last post. We are waiting for the Respondent to get back to us, they are taking a while.

The bundle has already been agreed, but as disclosure is ongoing the medical report will be able to go into the hearing bundle.

We have a date for the medical witness, I used the questions you suggested for them to confirm the scope of the medical assessment and report so we have the required bases covered.

Thank you for your invaluable help.

If I don't come back with more questions, I will come back with further updates. I fully intend to share as much 'anonymised' information as possible to help others in the same boat. This forum is a life saver. Thank you for your time and support.

[ULA]

Please do not worry timings on make posts. Just so long as if something is time sensitive you allow us enough time to respond back to you as we are not always online.

Glad to be of help as you navigate this process.

Questions or updates are equally welcome.

[GoldenRaven]

Hi, I am coming back with an update and another request for help.

Update Medical Expert Witness report- Thank you so much ULA for helping with the wording of the instructions.

The report was quite expensive at £1700 and as Mum was not working and is not receiving pay, it took a while for me and my siblings to save the money for it. We chose MEWA which you mentioned and it went well. I have to say that the relief Mum felt that 'it was not all in her head' was worth the money. This has helped her a lot. It was worth getting it for the tribunal too.

What is fortuitous and weird was that the Respondent recently conceded that Mum was disabled at the relevant time. The Respondent did a complete 180 degrees without any new information!
We have not sent them the Medical Expert Witness report yet because there are some factual errors that we need the expert to correct in the report.

The report:

1. Diagnosed Mum's conditions of anxiety and depression during the relevant time.
2. Confirms Mum is not fit for work.
3. Confirms that 'on the balance of probability' Mum's symptoms are 'directly attributable' to what happened with her work.
4. Describe the extent of Mum's conditions and the significant impact on her life as 'severe in nature' and ongoing for over 12 months. The expert considers that Mum's conditions classify as a disability under the Equality Act 2010.
5. Confirms that before the issues from her work, she had no such disabilities and was not 'more vulnerable to the effects of psychological trauma than most'.
6. It's quite in-depth and there is a lot more, I think this is because the instructions were very clear -Thank you ULA for your help with wording the instructions.

Fortunately, the Respondent applied for an extension for the witness statement which actually benefited us as we can now use the information from the medical report in the witness statement as you have previously suggested.

We prepared a timeline of events for the medical experts with details of the events and this helped Mum explain the impacts of each incident from her work on her for the full relevant period in detail. This document has a lot more comprehensive details and is a much better 'disability impact statement' than the one we originally gave the ET and the Respondent last year as part of the case management order.

The respondent's response to the impact statement provided last year was that there was not enough detail in the original impact statement to suggest disabilities and that Mum's impact statement did not 'sufficiently reflect her medical records' for the Respondent to be able to 'form a clear view on disability'.

My questions:

1. Is it possible to apply to the ET to add this new disability impact statement? We are hoping to do so on Monday in a preliminary hearing to discuss further case management issues. The hearing is scheduled for mid August 2024.

2. Would the more comprehensive details of the impact of the incidents on Mum help in the liability hearing? If so how?
3. Would the more comprehensive details of the impact of the incidents on Mum help in the remedy hearing? If so how?

Thanks again for your help, we are so grateful.

[ULA]

Answer to your questions:

1. Your Mum can certainly ask at the PH on Monday for an updated impact statement to submitted. I would suggest though that she adds it as an addendum to the original impact statement which should have been dated. This new part should be specifically about new impacts that have materialised since the last impact statement and this section should also be dated.

2. Not sure what you mean by the liability hearing. What happens from a final hearing is, that if your Mum is successful, then their is a remedies hearing (although depending on timings there may be time for determination and remedies at the Aug hearing). Remedies will decide what level of compensation will be due to your Mum and the impact statement will be considered.

[GoldenRaven]

Thanks ULA

Good point on the addendum, as it's been a year and there's been more impact that has not been documented.

We want to add more details to the existing impact statement, covering the same time period.

This is because when we prepared a timeline of events for the medical experts, Mum was better able to explain the impacts of each incident on her in detail. Her original impact statement lacks these details because she wasn't mentally able to function properly at that time. She was at her lowest point. It was when she was in the middle of it all and hitting rock bottom.

The timeline she prepared for the medical expert has much more comprehensive details and is a better 'disability impact statement' than what we originally submitted to the ET and the Respondent last year.

The respondent's response to the impact statement provided last year was that there was not enough detail in the original impact statement to suggest disabilities and that Mum's impact statement did not 'sufficiently reflect her medical records' for the Respondent to be able to 'form a clear view on disability'.

We plan to ask the judge at the PH for permission to add to her original impact statement, explaining that:

1. Mum's mental health didn't allow her to detail her impacts in the original statement. She was depressed, ashamed, and stressed.
2. Since then, she has had therapy and medication, helping her work through her experiences in detail.
3. Disclosing her impacts to the medical expert allowed her to share the full extent of her condition without holding back.
4. This will help the Respondent gain a clear view of her disabilities and their impacts. As per the Respondent's feedback, the original statement didn't have enough detail to suggest disabilities or reflect her medical records.
5. This addendum will help the Respondent and the Tribunal understand the impacts on Mum better and ensure she isn't disadvantaged because she wasn't well when she made the original statement and is a litigant in person.

[ULA]

If your question is do the five points that have been set out seem like plausible statements to support your mother's request to update the impact statement then they seem reasonable.

[GoldenRaven]

If your question is do the five points that have been set out seem like plausible statements to support your mother's request to update the impact statement then they seem reasonable.

Thanks Ula.

[GoldenRaven]

If your question is do the five points that have been set out seem like plausible statements to support your mother's request to update the impact statement then they seem reasonable.

Thanks for your help ULA . Just giving you an update, the PH went well and the judge said that in this situation an updated impact statement will be useful for remedy. Mum doesn't have to provide one until the remedy is scheduled.

Now the Respondent is requesting permission from the treasury for a judicial mediation. Apparently, this is rarely granted. Mum said she is ok to try judicial mediation. According to the PH judge, there is a good chance of resolution as judicial mediation is highly successful.

The amount offered last has been above the £30k which I think is tax-free up to £30k. I expect the amount will be more than their last offer, as their last offer was before they conceded disability and before we had the MEWA report that:

1. Confirms that 'on the balance of probability' Mum's symptoms are 'directly attributable' to what happened with her work.
2. Describe the extent of Mum's conditions and the significant impact on her life as 'severe in nature' and ongoing for over 12 months. The expert considers that Mum's conditions classify as a disability under the Equality Act 2010.
3. Confirms that before the issues from her work, she had no such disabilities and was not 'more vulnerable to the effects of psychological trauma than most'.

My question is what and how much are the deductions from a settlement via ACAS. Could you please explain or point me in the direction of where I can find the information?

Is there anything else we need to be aware of or watch out for when discussing and agreeing a settlement?

Thank you for your time and your help.

[ULA]

Good that updated impact statement can be provided at remedies if you do not settle at Judicial Mediation (JM).

If a settlement is reached by JM this will either be done via ACAS and a COT3 agreement or the parties will agree a settlement agreement. between then. It is non-contractual payments that have the potential for the first £30k to be tax free.

Not sure what you mean by your question "What and how much are the deductions from a settlement via ACAS."

[GoldenRaven]

What and how much are the deductions from a settlement via ACAS."

I mean, what are the deductions that we should expect from a settlement agreement, other than tax?

From what I understand contractual payments are subject to tax and NI?

Thank you Ula for your help, it is very much appreciated.

[ULA]

Contractual payments are subject to tax and NI in the normal way.

Non contractual settlement below £30k referred to as ex-gratia or compensatio payment generally not subject to tax. Anything above that will be taxable.

[GoldenRaven]

Contractual payments are subject to tax and NI in the normal way.

Non contractual settlement below £30k referred to as ex-gratia or compensatio payment generally not subject to tax. Anything above that will be taxable.

Thank you so much ULA. Just so we understand the rate at which she will be taxed so we know what figure Mum will end up with if she accepts an offer before the hearing.

Mum is in the basic 20% bracket. Will the compensation above £30k be based on her tax bracket?

For example, if the ex-gratia payment is £100k, £30k is not taxed. Will she pay 20% tax on the remaining £70k or will she pay £40% because the threshold for the higher tax bracket is from £37,701.


Also Mum is still employed and as part of any settlement will be the termination of her employment. From research, I understand that any and all payment she receives to terminate her employment is counted as 'Termination Payments' by the HMRC regardless if it's a compensation payment. So that the full amount is subjected to tax and NI.

I hope you can help me get clarity.


Thank you for your continued help.

[ULA]

As confirmed in my post #43 contractual payments i.e. those associated with the termination of your mother's employment as part of any settlement e.g. notice pay, accrued holiday pay, will have to have tax and NI deducted. These are not compensation payments, they are due to your mother as part of her employment.

Just a thought what has happened about any pension payments whilst she has been off on long term sick?

Anything above the £30k will be taxable, however as an employment person I am not a tax expert. Each person's tax situation is, as you can image, something specific to them. If your mother wants to know the answer to that question, then she will need to contact HMRC, provide her tax details and they can advise accordingly. I find that although you may have to be on the phone for a while they are usually quite helpful.

Sorry not to be able to provide a more definitive answer on this particular aspect.