Varying opinions on claimant behaviour, negotiation demands and possible outcomes

[SFerg1080]

Hi all,

I'll try to be as succinct as possible but thought it would be relevant to explain the situation. I have firm evidence already confirmed and bundled by the great solicitor I am using, but I would welcome varied opinions as he and his firm are being very measured in keeping my expectations low and the preliminary hearing is in July so I am getting quite nervous and have been scared to post anything publicly as claimant's action have terrified me.

I am an executive in the HR tech field and was with my employer for 6 years. At the time I left, I reported directly into the C-team and for the two years before departure had been having significant challenges with my current boss, our CTO, due to very abusive, erratic behaviour. I’d continually speak to HR about this and this transformed into our CEO acting as go-between when we had these challenges every few months.

In April 2024, I had significant stress due to my boss’ recent behaviour, so my doctor recommended I get screened for ADHD as he had been recording that I had been acting increasingly erratic over the last few month and it may be more than stress. I received a private diagnosis that confirmed it was severe in May 2024 and reported it to HR.

In June, I had significant issues with my boss, went to my CEO and reported it and discussed my stress and the ADHD diagnosis. Later that day, in our recorded monthly “leader to leader” meeting, my boss proceeds to give me an unannounced, final formal warning for “challenging his authority” as well as for “discussing his actions with others”. I have never had a previous disciplinary action, I wasn’t given opportunity to challenge the warning, I wasn’t told anyone could accompany me and I was provided no proof of any of his claims.

Two weeks later I was put at risk of redundancy because of “lack of performance”, locked out of company systems because they “were concerned I would harm the company’s code” and offered a very low, taxable settlement package of two months pay plus leave to “go quietly”. To clarify, the technology team I manage has been the most profitable area of the company since my first year, I have won company performance awards year-on-year and was just promoted to Executive Vice President in December 2023.

I signed off with stress, and two weeks later my exact job was given to another colleague. I challenged this in the redundancy consultation we had and was told that it, technically, it wasn’t my exact job as this person was based in the US and the decision was made as our customers prefer “someone based in the US who is a native language speaker English speaker because the US is our biggest target market”. This is completely untrue. I am not native born but speak and write English well and I’ve led our global technology team for 4 years.

They sent another offer, which I refused, and the next day and in the 2 weeks after, they sent 3 very career damaging and untrue emails to the entire company indirectly implying that I am not well mentally, directly stating that I am trying to harm the company’s reputation and warning employees to stay clear of me. These were sent to me by several concerned colleagues and it impacted my stress leave and made it much worse.

After this, I filed a grievance and requested an independent investigator, which was initially refused, so I then contacted ACAS. The company refused early conciliation, and never actioned the redundancy or the grievance so I filed an ET1. I finally received the grievance outcome in December 2024 and it was a short, complete whitewash that addressed none of my points and simply re-iterated the company’s justification for the sham redundancy (that still hadn’t resolved), why the company was right in this and why the warning I received was valid even without evidence presented to me. They said they believed the evidence that I presented to them, including the slanderous emails, to all be “confidential” so they refused to analyse any evidence I provided. The outcome also said the company was unaware of my ADHD and HR and my CEO said that I had never reported any challenges with my boss which I have evidence of otherwise. I then made aware that my boss would be leaving the company in January.

They then refused to pay my annual bonus in December which should have been roughly £52K, even though it is not contractually dependent on if I am on sick leave. They just won’t reply to any communications about it. This financially crushed my family as I had been on SSP only for months, so I told them I would be coming back to work in January. Then, later that evening, I was sent via email a letter of termination for SOSR due to the "significant breakdown of trust I had created with my boss" (who was in the process of leaving the company). Littered through the letter, they kept mentioning that “we were going to make you redundant anyway but wanted to respect your sick leave” and “you would use confidential information to harm our business so we don't trust you”. I appealed, the termination was upheld and was further told in the reply that, because I filed an ET1, I’ve broken trust with the company.

To end, I’ve sent two DSARs which they’ve been obstructive about, didn’t include what I asked for and were in impossible to search or navigate formats (ICO already on this); I’ve raised another ET1 for automatic unfair dismissal (due to saying the ET1 was a cause of breakdown of trust), illegal deduction of wages (as bonus and holiday still unpaid), disability discrimination (for saying I never reported ADHD when I have written evidence I did), victimisation and harassment (due to several documented instances in the interim).
If I have firm evidence to prove the above, my questions are:

• None of their procedures followed ACAS process. If, in the end they use SOSR, does this remove the possibility of uplift? Does the possibility of uplift increase if we can prove clear, underhanded behaviour?
• I’ve been threatened multiple times by them (in without prejudice emails) telling me that if I don’t accept their settlement offers, I could be penalised by tribunal as I am being vexatious. How often does this occur and is this a possibility?
• Their ET3 had contradictions with their previous written statements such as saying I had a history of “issues with my boss” even though they had previously said in the grievance transcripts that there was no reports of me ever having issues with my boss and said they sent me all of my HR file in the DSAR yet it only contained my initial work contract.
• I have a transcript from an interview with HR that says I did mention my ADHD to them but in an “offhand way” and I never “provided them with written proof in the form of medical evidence” so they didn’t action it. It also says this in the ET3. This wouldn’t allow them to completely ignore my disability claims, would it?
• In the first DSAR, there are two emails from right before they sent the “at risk” email that aren’t marked confidential that are conversations about how to make my redundancy seem genuine. In these emails they discuss how they can make it look genuine, how they can ensure I go quietly and how they can reduce any chance of me being able to win should it go to tribunal. My solicitor is currently reviewing them but I’d like any opinion on if you’d believe these would fall into the legally protected category ad will be inadmissible.
• If all I am writing is true with clear evidence does it seem likely that reasonable counsel would tell them to settle beforehand?
• The malicious emails that were sent are very disturbing to me and could hurt my future career. Should I ask for written retractions as part of what I will accept as a settlement or is that too much?
• Could an SOSR be grounded in a breakdown in trust between an employee and someone who has left the company? Much of their communication relies on this.
• Is it automatic unfair dismissal because they are terminating me for exercising a statutory right?

Thank you.

[ULA]

I appreciate you are looking to get other opinions in advance of your PHR ,which I presume your solicitor will be representing you at but I would strongly recommend that, if you have not already done so, you ask them for a response to these questions.

I will do my best to answer but you need to know that I am not a qualified solicitor, just someone who has a broad understanding having worked in functions where knowledge in this area is essential.

1. There is an Employment Appeal Tribunal's decision in Phoenix House Ltd v Stockman and Another where the employee's dismissal was found to be both procedurally and substantively unfair. However, in its judgement the Employment Appeal Tribunal held that the ACAS Code of Practice does not apply to dismissals for "some other substantial reason" (SOSR). This meant that the successful claimant was not entitled to receive an uplift of up to 25% on the compensation awarded due to the employer's failure to follow the ACAS Code.

2. If it is in "without prejudice" emails in respect of genuine attempts to settle the matter, then the very meaning of "without prejudice" is these cannot be used in evidence at the ET. This means they will have to use other means to prove you are a vexatious claimant. In ET proceedings the normal outcome regardless of who wins is that each party pays there own costs unless certain criteria can be proven, if so, then I have known an ET to award costs to a party but it is still the exception rather than the norm.

According to the ET and Employment Appeal Tribunal Annual Statistics for 2023/24, out of 97,489 cases issued in the ET, just 192 cost awards were made. Of those cost awards 153 were in favour of the respondent, and 39 were in favour of claimants, the median amount of costs awarded being £3,000

3. Contradictions in the ET3 can either be disproved by way of any counter documentation you have which can be put into the final hearing bundle and /of dealt with in your witness statement when it becomes time to prepare it.

I would be sceptical about an employment file whether paper or electronic that that only contained your initial contract of employment, if you have 6 years employment. However what they have to provide will be dependent on the specifics of the DSAR made.

4. Regardless of how they perceived you told them, from whenever that date was is the date that they became aware that you had ADHD. If they had wanted written proof of this they could equally have asked you to provide it or asked for you to attend an occupational health (OH) assessment.

A verbal disclosure can be sufficient, though employers sometimes argue they needed formal medical confirmation before acting but it is clear they made a record of that meeting which strengthens your case that they were aware of your ADHD, even if they try to argue otherwise.

5. The phrase is "legally privileged" which applies when communications between a lawyer and their client is confidential, the documents should be headed up as so and it is made for the main purpose of seeking or providing legal advice or preparing for litigation. If these emails were not between a lawyer and the respondent then I struggle to see how they can be legally privileged.

6. The respondent's representative may advise that they settle depending on how they see the merits of the case, however they cannot force their client do so if for whatever reason they do not want to.

7. If you settle before any final hearing how will those emails come to light to hurt your future career. If you are worried about references, then I suggest that as part of any settlement you agree a form of wording that would be used in any reference provided by the respondent to any future prospective employer.

8. Judgements from past ET claims have confirmed that employers can dismiss employees under the category of SOSR, where there has been a breakdown in trust and confidence. However an Employment Appeal Tribunal judgement has gone further and confirmed that the fact that a breakdown is established on the evidence will not necessarily be sufficient to ensure the resulting dismissal is fair. A Tribunal may consider why the breakdown occurred in the first place along with the reasonableness of the employer's approach not just that the breakdown occurred.

9. You could have a claim for automatic unfair dismissal if you are dismissed by your employer but you will need to prove it is as a direct result of the fact that you have asserted one or more statutory rights.

I am sure your solicitor would have explained that this is just a preliminary hearing (PHR) which is primarily for the Judge to establish the facts of the case, ascertain whether any issues are in dispute, consider whether mediation is a possibility and try to plan for being able to then send out Case Management Orders (CMO). These will detail the timings for preparations leading up to the final hearing.

I hope my answers have provided some helpful information but as I set out at the start, your solicitor will be far more qualified than me to respond to your questions.

[SFerg1080]

Thank you, Ula, and I apologise that I am only now replying.

In response to your points:

1, The SOSR happened after a failed attempt at performance based termination, an attempt at having me voluntarily resign and a sham redundancy excercise. Does the SOSR remove any chance of the respindent being penalised for these, simply because they ultimately SOSR?

2. Thank you.

3. The DSAR was quite specific and they provided me with nothing I asked for. ICO is now involved

4. Thank you. This is quite troubling as it is a blatant lie and quite hurtful.

5. The communication is with them and outside counsel but was before any litigation begun. I had asked for a protected conversation to explain what I expected. The communication itself details a quite exhaustive back and forth about how they can get rid of me on the spot and make it look like it was planned for months so I would simply agree. Does this make it legally priveleged?

6. Thank you.

7. The harm is that colleagues who have now left or those leaving in the future have/will shared this. I am quite concerned as it is a black mark on my reputation.

8. Thank you. Their whole narrative is based on the fact that, because I filed a grievanve and an ET1 in relation to the aforementioned behaviour on their part, they no longer trust me. As filing either is a protected right, can't the SOSR be seen as automatic unfair dismissal?

Once again, i have a good solicitor but the more insight I get the better so thank you for your feedback.

[ULA]

I am finding it hard to provide further opinion on what is clearly a complex situation and based only on information in two short posts without sight of any of the current documents in respect of your claim and the respondent's defence. You have a solicitor who has far more experience of your case and employment law than me.

1. In answer to your question on the uplift for an SOSR termination, I have set out the judgement from an EAT hearing (2014) . Any decision of an EAT is binding on the ET. Although if there has been a contradictory decision by the EAT since 2014 this may cause some confusion. I have not found anything on this beyond 2014 but I do not have access to all case law unlike your solicitor. I therefore cannot give you a direct answer on this.

3. I can add nothing further given that you have taken this up with the ICO which is the correct process. Your solicitor may also be able to bring some pressure to bear via an application to the ET if direct requests by them to supply relevant documentation for the final hearing bundle is not forthcoming from the respondent.

5. Generally communication between a company and their legal counsel for the provision of professional legal advice or preparing for litigation is legally privileged, however ideally it should also be set out as such - "belt and braces". The basic view is that parties can assume that the disclosure process has been carried out correctly, and therefore that all materials disclosed were intended to be disclosed and this may infer they have waived legal privilege. In the case of documents being disclosed by mistake the disclosing party must establish first that the disclosure was in error and then that the mistake was obvious. A further factor likely to be relevant, is the length of time passing between the inadvertent disclosure and the disclosing party requesting return or on-use of the inadvertently disclosed material. A party disclosing in error should act as soon as the mistake is discovered.

7. As always with this situation unfortunately the information is out there. Colleagues who have left are unlikely to be party to any retraction and current staff, as is human nature, will believe what they want to believe. This is also not a request I believe is in the remit of an ET for which they would make a judgement on. You would need to discuss this with your solicitor who can best advise on what, if anything, can be done on this from a legal perspective.

8. I think this is a combination of my replies at post #2 numbered 8 and 9 and there is nothing further I can add to what I have already set out.

I will again caveat my answers with the fact that you have a solicitor far more qualified than me who can advise you and whose opinion you should seek.