Is judicial mediation best and what proportion is fair to settle for a reference

[Uyuni]

Hi- Thanks for looking at my post

My claim is on continuing acts of direct race discrimination, harassment and victimisation, unlawfully deduction of wages & unpaid accrued holidays.

I’ve been suspended for many months now for an unresolved disciplinary action raised by the discriminator. Have grievances raised under the equality act that were not heard.

I have all the evidence of nearly each of the incidents, emails on the discrimination and harassment, as well as of the victimisation. I consider my claim to be strong.

Also, employer has refused to provide SAR request (9 months now – ICO hasn’t done much to help apart of giving recommendation) and discrimination questionnaire.

Claiming for injury to feelings (high band 40K+), Personal damages (with evidence in psychiatric injury for which I’m medicated), aggravated damages, Interest (2years), ACAS uplift (I haven’t sent yet the schedule of Loss). I understand if this is awarded or not, I'd still remain employed.

Initially I’ve done a couple of interviews, one of them asking for reference at the very start of process, I found the disciplinary action against me would be disclosed. Then my health deteriorated and I feel it’d be hard to find another job for me and in the state I’m now.

Case will go through a judicial mediation, however employer is making an offer within ACAS based on an initial counteroffer I made not yet knowing the value of my claim. Basically, all I’m asking is for a reference to be able to find another job.

It comes to my mind the fact that I wouldn’t only be dropping the claim, but also terminating my employment which at the moment they continue paying as I’m still suspended. Being in work is important to me, and for me giving up this means a big loss. Already a loss after not working for several months now.

Basically, the offer given is a bit more than the 3^rd of the value of my claim. And I’ll be without a job. For one side I’ll like to end this and start over whatever is left to do. But I still don’t feel like that offer is fair. Reference is my main reason to settle.

What amount or proportion is considered to be fair so I feel some justice happens for I went through. is it best to settle within ACAS or best to go through judicial mediation. is it something I shall be aware o that. are there any risks from going through judicial mediation?

Thanks a lot in advance, I’ll look forward for some guidance.

[ULA]

If you go through ACAS and reach a settlement it will agreed via what is called a COT3, as part of your negotiation you can see if the company will agree a wording that they would need to use each time a prospective employer asks for a reference.

Judicial mediation involves bringing the parties in the employment dispute together for mediation at a private hearing in front of a trained employment judge. This happens either before a preliminary hearing takes place, or before the final hearing. The judge’s job is to remain neutral and to assist the parties in resolving their dispute and coming to agreement on any monetary compensation. Again you can also try to agree the reference wording as part of the settlement.

Settlement can happen at any stage in the process, however if there is the possibility to resolve this via ACAS at an early stage then that does mean the stress and work that needs to go into preparing for a hearing is avoided. It may be that if early conciliation via ACAS does not lead to a settlement, your employer may be minded not to engage in any further attempts to settle and both parties have to be in agreement to judicial mediation which is available once the claim has been lodged with the ET. So Judicial Mediation may not become an option.

Just a few other points on your compensation requirements

1. I would certainly lower your expectation on the Vento band.
2. Aggravated damages is only awarded in the most serious cases.
3. Interest is not something you say will be for a certain period of time as there are set formulas for this on how it is calculated.

[Uyuni]

If you go through ACAS and reach a settlement it will agreed via what is called a COT3, as part of your negotiation you can see if the company will agree a wording that they would need to use each time a prospective employer asks for a reference.

Judicial mediation involves bringing the parties in the employment dispute together for mediation at a private hearing in front of a trained employment judge. This happens either before a preliminary hearing takes place, or before the final hearing. The judge’s job is to remain neutral and to assist the parties in resolving their dispute and coming to agreement on any monetary compensation. Again you can also try to agree the reference wording as part of the settlement.

Settlement can happen at any stage in the process, however if there is the possibility to resolve this via ACAS at an early stage then that does mean the stress and work that needs to go into preparing for a hearing is avoided. It may be that if early conciliation via ACAS does not lead to a settlement, your employer may be minded not to engage in any further attempts to settle and both parties have to be in agreement to judicial mediation which is available once the claim has been lodged with the ET. So Judicial Mediation may not become an option.

Just a few other points on your compensation requirements

1. I would certainly lower your expectation on the Vento band.
2. Aggravated damages is only awarded in the most serious cases.
3. Interest is not something you say will be for a certain period of time as there are set formulas for this on how it is calculated.

Thanks a lot for that reply. I had applied Vento band with reference in various law cases and definition for ongoing and continuous campaign of discrimination. Do you mean to be realistic this is no actually applied, and those law cases aren’t actually a reference?

The ET asked to provide the financial claims of the proceeding and their calculations, and non-financial notes in a document called desired outcomes from mediation. I did put the actual lines of schedule of losses and that just added up; as non-financial I mentioned acknowledgement of the harm caused, reference and confidence & non-disclosure. The respondent shall provide a proposed outcome. I hoped I did okay.

Well, I understand, although the respondent has agreed to go through judicial mediation, they could cancel the appointment. However, I want to think they won’t like to do that.

One confusion I have is that judicial mediation will go with nearly complete denial of the pleadings, there is not common ground on that. Will that be a risk? Could the judge suggest weakness of a case, or suggest an even lower amount of what they are offering if the respondent doesn’t admit or denies facts? However I understand, if that is the case, I can simple not accept the proposal in the judicial mediation, and continue with proceedings. Or will that make a precedent for the actual proceedings?

I’m thinking that the least acceptable to settle would be 50% of value of claim.

The hearing is planned in about 10 months. Because any settlement will mean terminating my employment, I’ll be without job, so I still see it beneficial to continue in proceedings. I think the risk also is that the respondent could dismiss me as they refuse to resolve the disciplinary action. However, I want to try to find another job as a recover, I'm hoping that a prospective employer doesn't request reference at the very start.

Thank you so much, I really appreciate your response and if there is some more advice that is so kind.

[ULA]

My meaning about being realistic on the Vento bands is that the upper limit is very rarely applied and only in extreme cases of a series of instances of discrimination.

The judge is there to mediate a settlement between the two parties they are not there to advise parties on how good their case is. If you do not manage to get a mediated settlement the content of the mediation will not be made known to the Judge / panel that are present for the final hearing.

It needs to be your decision as to what you feel you are happy to settle at in terms of the value of your claim.