Employment tribunal - chances?

[General Welldone]

Dear All

I appreciate I'm asking how long a piece of string is, but I could really do with some guidance on whether to withdraw from my forthcoming ET hearing in May. I'll try to keep it as brief as possible.

Myself and a colleague at the same level and on same conditions were placed at risk. Our posts were to be merged thereby creating a position for which the job description and person spec were exactly the same but which would require line management of what was previously two teams, with the concomitant increase in responsibility & workload. We applied for the merged post as ring-fenced for us, were both unsuccessful and, following unsuccessful appeal, were made redundant.

There are lots of little problems with the process of selection, conduct of the interview but nothing substantial enough to win the ET. As such, my colleague and I (our cases have been combined) will be arguing that the interview should have been used to decide which of us was the better fit, not to dismiss us both from a post that we consider to have been suitable alternative employment (the job description being the same and the increase in responsibility & staff being something that could happen at any juncture, irrespective of merging posts). We will also be arguing that the interview was not conducted in good faith, with a pre-determined view to dismissing us and essentially 'cleaning up' our department (almost all management had gone in previous redundancies and restructuring). We will also contend that the employer did little to prevent our responsibility in not considering my suggestion (at appeal) that we share the role, thereby still managing the same areas but for half the time and salary.

I consulted both my union solicitors and legal advice through home insurance and whilst neither felt the case had the 51% chance of success that they needed to take it on, they both felt there was merit and the case was arguable and not vexatious or doomed. The ET1 went in a year ago and, after two postponements, will be held in May 2013.

I admit to cold feet but this isn't the reason for my considering withdrawal. Alongside family matters and the simple fact that it is incredibly difficult for me to devote the necessary time to my case, I have recently seen the case of Samsung vs Mone D'Cruz (easily googled). This case suggests there is little, if any, problem with an employer deciding, on interview, that a merged post is not suitable for the employees previously undertaking the non-merged roles and then appointing an external candidate (this is what happened after we were unsuccessful at interview). If this is the case, am I right in thinking that my only chance of success would be to convince the tribunal that my employer conducted the interviews in bad faith and what, if any, evidence is likely to support this (I understand nobody here knows the details of my situation, but I'm finding it difficult to determine what sort of practice might even be considered bad faith as so much of it could just be seen as incompetence and senior management are free to be poor at their jobs)?

My other concern is that, given I know doubt my chances of success, were I to withdraw so close to the hearing, would the tribunal be likely to award costs against me? The respondent has not suggested they will pursue costs but I would rather see the ET through, even if it's doomed, than pay costs.

Thanks in advance for any advice.

[Eloise01]

Re: Employment tribunal - chances?

Let's go backwards because that's the best bit of news. No, it would be nigh on impossible at this stage that costs would be awarded if you withdrew. If there were any real prospect of that you would have received a very clear warning from the judge at the CMD. I think the chances of costs are very low and wouldn't worry about it. I also would recommend not withdrawing - the employer may settle to save their costs - it has happened on the morning of the tribunal on many occasions. But equally, that must be a choice you make - turning up ill-prepared to present your case will not likely change that position, but it is a waste of your time and energy if you haven't got a case to argue!

That said, the precedent set in Samsung was far from new, and I agree with the assessments that you have poor prospects of winning - based solely, of course, on what you have said here. The difficulty with this is that there is long established precedent that a merged post is not the "same post" as either of you were doing. It is a different post and there is therefore not an automatic basis to assume this to be a suitable alternative position in law, but a new position which neither of you may be able to do. I came across a similar but more stark example a couple of days ago in which someone was saying that the post they had unsuccessfully applied for was 50% their current role. They could not see the point I was trying to make that the other 50% was not their current role, and the employer wanted certainty (or as certain as one can be) that the person appointed could do 100% of the role.

I do not see that the argument that you do half the job each has legal merit - it was a suggestion you were entitled to make, but it was a suggestion that the employer was entitled to refuse too.

The rest of what you have here is "mind-reading". You cannot know and you cannot prove that the employer acted in bad faith in relation to the interview; and you cannot prove that they were "cleaning up the department" simply because the rest of the management has gone - and especially not since their cases are not before the tribunal and so they cannot consider whether the circumstances of those redundancies were fair or not. This latter point will therefore become an irrelevance in the eyes of the tribunal - they will simply ignore it and will only consider the case that you put about your redundancy. So what is evidence of "bad faith"? An eyewitness who heard the interviewers discussing that you would not get the job before the interview took place. Preferably two of these. With immaculate records! Factual evidence that scores were deliberately marked down - so scoring 50% for work attendance when you have a 100% attendance record (in other words, things which do not rely on judgements). Perhaps the most pertinent answer, however. would be that you alleged it - what evidence did you think you had for such an allegation?

In all honesty, if these arguments are the crux of your case, and you have little evidence to support them, I'd say your chances are a long way below 51%. I don't see anything here vexatious - people often argue things they can't prove at tribunals. It is just very rare that a tribunal will give much credence to such arguments, in the face of what will, almost certainly, be a plethora of evidence from the employer as to how they conducted a fair and objective process in assessing you as unsuitable for the job.

[General Welldone]

Re: Employment tribunal - chances?

Thank you very much Eloise.

I don't want to flog a dead horse and understand you can only give limited guidance, but to give a little more detail.

I suspect I cannot prove bad faith but would like to be sure before withdrawing. I can demonstrate that a couple of very specific questions asked at interview were peculiar in that they required knowledge I neither had (as the panel knew) nor could be expected to have (though I expect the panel could argue they were incompetent rather than acting in bad faith). I am hopeful I can demonstrate that one of the interview panel was not present at their deliberations (because I suspect the outcome was a fait accompli). The panel determined the burden of training & support I would need was too onerous yet have failed to show any evidence of what training or support was required.

As for the merged post, I don't know if it makes any difference but the employer argues less that the merger was the issue (as the duties remain unchanged with just the volume of line-managed staff and attendant paperwork increasing) and more that they expected greater performance from the area as a key responsibility. The ET3 specifically refers to desired improvements in the area, suggesting, I hope, the employer was utilising redundancy as a means of addressing putative issues that should have been managed by other means. If there were no redundancy situation and we had continued in our roles, this would have been expected regardless, so I'm unsure how it represents a significant change. In terms of the merged role and our previous, the job description & person specification remained unchanged.

I appreciate that suggesting we each do half the job has no legal merit, nor my suggestion that one of us could have been given a four week trial (the external candidiate wasn't interviewed until two, three months after we were unsuccessful), but are they not 'on balance of probabilities' indicative of an employer unwilling to mitigate against redundancy. It's more lots of these sort of details that add up to my accusation of bad faith rather than any smoking gun.

Thanks again for your comments. Most helpful.

[General Welldone]

Re: Employment tribunal - chances?

I forgot to ask, is there a limit to how soon before the hearing I can withdraw? Would days before be acceptable, given much of our case will hang on the respondent's witness statements and we are to receive these one week before the tribunal? Would this increase the likelihood of costs being claimed and then awarded?

Thanks again.

[Eloise01]

Re: Employment tribunal - chances?

Thank you very much Eloise.

I don't want to flog a dead horse and understand you can only give limited guidance, but to give a little more detail.

I suspect I cannot prove bad faith but would like to be sure before withdrawing. I can demonstrate that a couple of very specific questions asked at interview were peculiar in that they required knowledge I neither had (as the panel knew) nor could be expected to have (though I expect the panel could argue they were incompetent rather than acting in bad faith). But that is evidence you couldn't do the job! Interviewers do not ask questions based on what you could be expected to know - they ask questions based on what the require from the post holder. Asking a question that you couldm't answer isn't evidence of bad faith.

I am hopeful I can demonstrate that one of the interview panel was not present at their deliberations (because I suspect the outcome was a fait accompli). Not relevant - there can be a lot of reasons why this happens. The relevant question is whether you scored enough in interview to be appointable.

The panel determined the burden of training & support I would need was too onerous yet have failed to show any evidence of what training or support was required. Not relevant unless you can prove this was a suitable alternative position in law - and most of what you have posted says it wasn't. If it is not a suitable alternative in law, they are not required to show that they could not train you up.

As for the merged post, I don't know if it makes any difference but the employer argues less that the merger was the issue (as the duties remain unchanged with just the volume of line-managed staff and attendant paperwork increasing) and more that they expected greater performance from the area as a key responsibility. The ET3 specifically refers to desired improvements in the area, suggesting, I hope, the employer was utilising redundancy as a means of addressing putative issues that should have been managed by other means. If there were no redundancy situation and we had continued in our roles, this would have been expected regardless, so I'm unsure how it represents a significant change. In terms of the merged role and our previous, the job description & person specification remained unchanged. Restructures are about meeting business need. It is the employers sole perogative to determine how this is done. Tribunals will never judge or change such things - they have no jurisdiction to do so. You are arguing that they should have done things differently - such an argument has no merit in law because the sole arbiter of how they manage their business is the employers.

I appreciate that suggesting we each do half the job has no legal merit, nor my suggestion that one of us could have been given a four week trial (the external candidiate wasn't interviewed until two, three months after we were unsuccessful), but are they not 'on balance of probabilities' indicative of an employer unwilling to mitigate against redundancy. It's more lots of these sort of details that add up to my accusation of bad faith rather than any smoking gun. Yes they are required to mitigate against redundancies - but only in proscribed and limited ways. They are not reuired to go beyond those. The crux of your argument is that you should have been allowed, somehow, to at least try out the post. The crux of theirs is that you were not suitable for the post and they gave you every opportunity to prove you were by interviewing you - and that was their "mitigation".

Thanks again for your comments. Most helpful.

Sorry, have to type something here but have nothing to say!

[Eloise01]

Re: Employment tribunal - chances?

I forgot to ask, is there a limit to how soon before the hearing I can withdraw? Would days before be acceptable, given much of our case will hang on the respondent's witness statements and we are to receive these one week before the tribunal? Would this increase the likelihood of costs being claimed and then awarded?

Thanks again.

You can withdraw on the day. People do. You can settle on the day. People do. It will have little or no bearing on whether costs are awarded. They are exceptionally rare. But if you really do decide to withdraw and are determined - it's polite to let the judges know! They do get antsy about sitting waiting for people who don't turn up.

[General Welldone]

Re: Employment tribunal - chances?

Eloise, this has been most helpful. Can I test your patience with three more questions, please:

Firstly, the question I was asked was tantamount to 'what number am I thinking of?' Would my inability to answer this be considered reasonable by a tribunal?

You mention scoring. Despite my asking for scores there are none. Plenty of notes and comments from the panel, but no scoring for the interview. Should there be? Can I ask for it?

Is there a positive definition of suitable alternative employment? Everything I've come across seems to be demonstrating that an offered position is not suitable and hence declined.

Thanks for your patience.

[Eloise01]

Re: Employment tribunal - chances?

On the first point, this goes to business requirements again. What they think they need to ask to determine suitability is up to them. It's not within the tribunals jurisdiction. Remember, the law does not proscribe how employers appoint - they can theoretically, well in fact actually, draw lots. In this case, that would be going a little too far, but you see my point? It might help if I knew the actual question - hypotheticals don't really cut it in employment law. But the principle would still be there.

On the second one, no there doesn't have to be a score - it is common but there is no requirement. But yes you can ask -and you can ask for the interviwers notes too. It's a rare example, but I once won one on the interviewers notes! Although yours may not exist any more. There is no legal requirement to keep them although sensible employers often do.

[Eloise01]

Re: Employment tribunal - chances?

Sorry, on my tablet and accidentally hit post! Damned fingers!

Thirdly, hmm, broadly. It's not an exact science because the decision in the end is a tribunals. So no guarantees on this, but broadly...

Same or similar terms and conditions including salary package.
Same or similar duties to the existing role OR minimal training required to fulfill the duties

In terms and conditions an employee can trade down to a lower grade or salary, but not up.

But that is REALLY broad brush and the devil is in the detail. Employers are routinely enforcing cuts of salary of 10% and more and it is being accepted as suitable by tribunals. A decade ago that wouldn't have happened. This isn't "politics",it's the real world. Tribunals operate on a fine line of the law, mediating human relationships, and the facts of life! It makes employment law interesting, but also unpredictable. What might be reasonable in one situation isn't in another. What might be ok in a recession is less so in full employment. No employment lawyer can operate on absolutes because they rarely exist. So please understand that broad definitions are just that. Broad definitions.

[General Welldone]

Re: Employment tribunal - chances?

Thanks, you've been really helpful.

What do you think about withdrawing (if it comes to it) after I receive their witness statements (i.e. a week before the date)? Too close?

[Eloise01]

Re: Employment tribunal - chances?

No not at all. Like I said, to be honest you have nothing to lose by losing - except possibly a bit of self-esteem! At this stage, as I said from the beginning, it may be worth pushing it to the edge - tribunals can be and are settled on the first day! I wouldn't, as lawyer, ever suggest that tactic. I would only ever take a case that I thought I could win (even if I didn't, if you see what I mean). It is, in my opinion, morally wrong. There are cases where people take claims to the brink when they know they won't and can't win, just to try to get a settlement. It is those people who have created the situation where, from the summer, people will have to pay to make a tribunal claim. Something I am totally opposed to. But a minority of people have, as is often the case, deliberately engineered a situation that will prevent many ordinary and honest people from being able to make claims. But I can see from your posts that some of your points may be misguided (from a legal point of view), but genuinely held. There is nothing wrong in that. Most people do not understand employment law. They think they know what it says, but they really don't. You might want to visit the other site I frequent http://www.redundancyforum.co.uk/ There are some FAQs there that might provide some slight insight into tribunals and evidence.