Withdrawing a claim Advice needed

[FlamingParrot]

Re: Withdrawing a claim Advice needed

My only mistake. No I did not get advice from solicitor as this was done before. I was under a time pressure and needed to submit.

That's a shame, if an employment solicitor had made an omission like that you'd have had cause to go after him. :grin:

I still think £400 was a lot to pay if he didn't even assist with the drafting of the ET1. :tinysmile_cry_t: When he saw the claim you'd submitted, didn't he question the absence of wrongful dismissal on the claim?

in hindsight this was a mistake and I did not realise how crucial this ET1 form could be further down. I asked for unfair dismissal 15 Years Redundancy pay and Loss of earnings plus costs of any tribunal totalling £7200. My Schedule of loss was more detailed. Still no wrongful dismissal claim though. [/QUOTE]

The 15 years redundancy pay you refer to would be the basic award but you could also have asked for a further 12 weeks' notice for wrongful dismissal in addition to compensatory award for loss of earnings. I assume you secured alternative employment before submitting the claim, otherwise that part would be left unspecified and to be determined at a future date.

Thanks that makes me feel better. Thanks for all your help.

Glad to hear that. :yo:

[happylife]

Re: Withdrawing a claim Advice needed

That's a shame, if an employment solicitor had made an omission like that you'd have had cause to go after him. :grin:

I still think £400 was a lot to pay if he didn't even assist with the drafting of the ET1. :tinysmile_cry_t: When he saw the claim you'd submitted, didn't he question the absence of wrongful dismissal on the claim?

In fairness he did question my ET1 and what was missing from it. Then he waited for the ET3 response form. Took the £400 went away and came back a few days later and informed me to best drop and try and settle.

The 15 years redundancy pay you refer to would be the basic award but you could also have asked for a further 12 weeks' notice for wrongful dismissal in addition to compensatory award for loss of earnings. I assume you secured alternative employment before submitting the claim, otherwise that part would be left unspecified and to be determined at a future date.

I still haven't secured full time work. Only bits of part time work which I have accounted for in my Schedule of loss. I went to an interview and they asked why I left, which was not good explaining my dismissal.

[FlamingParrot]

Re: Withdrawing a claim Advice needed

[QUOTE=happylife;548521]In fairness he did question my ET1 and what was missing from it. Then he waited for the ET3 response form. Took the £400 went away and came back a few days later and informed me to best drop and try and settle.
That doesn't sound like a very good solicitor to me.

I still haven't secured full time work. Only bits of part time work which I have accounted for in my Schedule of loss. I went to an interview and they asked why I left, which was not good explaining my dismissal.

If you are not in full time permanent (or at least long term such as a fixed term contract) employment, the compensatory award amount on the ET1 should be left unspecified and to be assessed at a future date. The schedule of loss is independent from the ET1. At the end of the day, if you attend a hearing and win the case, a tribunal can award compensation for up to 12 months' worth of lost earnings, with deductions for any temp work done and/or recoupment of benefits claimed.

[Nomoneynoproblem]

Re: Withdrawing a claim Advice needed

Hi

From my experience if the respondent (employer) believe they have a strong case they will have no intention of withdrawing from the case and if the tribunal should find your case is vexatious they will definately award cost against you. I am not sure why ACAS was not involved as previously explained but without knowing knowledge of your circumstances my advice is limited.

Regards

[happylife]

Re: Withdrawing a claim Advice needed

Hi

From my experience if the respondent (employer) believe they have a strong case they will have no intention of withdrawing from the case and if the tribunal should find your case is vexatious they will definitely award cost against you.

understood, Although I don't believe my claim is Vexatious. I have work there for 15 years and to be dismissed for gross Misconduct with no pay or notice, which I think was planned is hard to take.

I am not sure why ACAS was not involved as previously explained but without knowing knowledge of your circumstances my advice is limited.

Regards

don't quite understand what you mean, ACAS have been involved all the way through conciliation.

[FlamingParrot]

Re: Withdrawing a claim Advice needed

understood, Although I don't believe my claim is Vexatious. I have work there for 15 years and to be dismissed for gross Misconduct with no pay or notice, which I think was planned is hard to take.

A lot of dismissals for alleged gross misconduct are planned, the case I previously referred to was planned for at least a year!

Without knowing what the alleged gross misconduct is we cannot comment further. The term can be used to refer to anything from punching your boss in the face whilst under the influence of coke and alcohol, to a simple post on Facebook, and anything in between! :noidea:

don't quite understand what you mean, ACAS have been involved all the way through conciliation.

ACAS have to be involved but their powers are limited. If the parties do not want to settle, they can't make them agree to a settlement. You are right to say that larger companies tend to be more agreeable to settling even when they could potentially win the case, they'd offer a commercial settlement which simply means what they are paying you is less than what it would cost them to defend the claim in terms of legals costs and their own time. :decision:Big companies tend to hire big law firms to represent them -I mentioned Backer & McKenzie above. Their hourly rates at the time started at £500/hr! ::faint2:

Small businesses tend to hire high street lawyers who don't charge nearly as much and their owners often have more time to dedicate to pursuing the case than those managing hundreds of employees. Where the business is run by its owners directly rather than appointed management, there are also personal issues. They don't want to lose face and be seen to give up or 'lose'. They may also harbour resentment against you and think "no way am I giving him/her any money, I'll fight till the end". In larger companies, decisions are made based on business rather than personal principles.

[Nomoneynoproblem]

Re: Withdrawing a claim Advice needed

understood, Although I don't believe my claim is Vexatious. I have work there for 15 years and to be dismissed for gross Misconduct with no pay or notice, which I think was planned is hard to take.



don't quite understand what you mean, ACAS have been involved all the way through conciliation.

Sorry I ddn't see the bit about the involvement of ACAS. I am not sure whether you have come across the latest ET procedures that came into force in February 2015.

https://www.gov.uk/government/upload...dure-rules.pdf

[happylife]

Re: Withdrawing a claim Advice needed

A lot of dismissals for alleged gross misconduct are planned, the case I previously referred to was planned for at least a year!

Without knowing what the alleged gross misconduct is we cannot comment further. The term can be used to refer to anything from punching your boss in the face whilst under the influence of coke and alcohol, to a simple post on Facebook, and anything in between! :noidea:

ACAS have to be involved but their powers are limited. If the parties do not want to settle, they can't make them agree to a settlement. You are right to say that larger companies tend to be more agreeable to settling even when they could potentially win the case, they'd offer a commercial settlement which simply means what they are paying you is less than what it would cost them to defend the claim in terms of legals costs and their own time. :decision:Big companies tend to hire big law firms to represent them -I mentioned Backer & McKenzie above. Their hourly rates at the time started at £500/hr! ::faint2:

Spoke with ACAS conciliator today and discussed my advice about how my case has low chance of succes therefore I would like to offer withdrawal of claim to the respondent solicitor providing they don't go after any costs incurred so far. They will offer this and confirm back.
I actually think the respondent will even refuse this offer (it's really is that bad). the respondent has a narcissic and ego disorder and a massive opinion about himself which is scarey. I suspect he is insured against tribunal claims and doesn't care if it goes to tribunal. If he refuses this offer we will go to tribunal and let the judge decide.
Can a business get insurance against tribunal solictor costs ?

Small businesses tend to hire high street lawyers who don't charge nearly as much and their owners often have more time to dedicate to pursuing the case than those managing hundreds of employees. Where the business is run by its owners directly rather than appointed management, there are also personal issues. They don't want to lose face and be seen to give up or 'lose'. They may also harbour resentment against you and think "no way am I giving him/her any money, I'll fight till the end". In larger companies, decisions are made based on business rather than personal principles.

Absolutely correct here. and this is the case i'm facing. Its a small business and The respondent is very stubborn and would sooner run up 10k court costs than settle 2k for my losses. strange but true. The relationship working together completely broke down and he wanted me out. It is personal and he wouldn't give me his last penny.
100% he will try for costs if he wins. It's just another victory for him.

BTW I tried to contact the free advice lines you mentioned for second opinion. it looks like these only work in term time. But thanks for all your help.

[FlamingParrot]

Re: Withdrawing a claim Advice needed

Spoke with ACAS conciliator today and discussed my advice about how my case has low chance of succes therefore I would like to offer withdrawal of claim to the respondent solicitor providing they don't go after any costs incurred so far. They will offer this and confirm back. I actually think the respondent will even refuse this offer (it's really is that bad). the respondent has a narcissic and ego disorder and a massive opinion about himself which is scarey. I suspect he is insured against tribunal claims and doesn't care if it goes to tribunal. If he refuses this offer we will go to tribunal and let the judge decide.

You should be able to withdraw your claim merely by writing to the tribunal. As you are the claimant, you cannot be forced to proceed with a claim you brought yourself. If you think they could go for costs, you could try agreeing to settle the matter purely on the basis of them not applying for costs.

Costs are only awarded when the claimant's case was so weak it shouldn't have been brought in the first place or when their conduct has not only been unreasonable but it has also had an impact on the respondent's costs. Yerrakalva v Barnsley Metropolitan Borough Council may be useful should they try for a costs order:

The respondents applied for costs, which were awarded primarily because the judge found that the claimant, at the aborted PHR, had lied about not making PI claims and the impact of the injuries on her fitness.

On appeal, Underhill J rejects that decision primarily because the judge had failed to take into account "the nature, gravity and effect" of the claimant's conduct, as following McPherson v BNP Paribas "any award of costs must, at least broadly, reflect the effect of the conduct in question". He added that he could not see "what effect the lies can have had on anything that occurred up to the moment of withdrawal."

As you will see, even though it was established that the claimant had lied, those lies were not seen to have had an effect on costs. This may not be applicable to you in terms of lying but the principle is that the costs application should reflect the impact the claimant's conduct has had on costs.

Can a business get insurance against tribunal solictor costs ?

Yes, they can get Tribunal indemnity insurance although small businesses may not have it.

Absolutely correct here. and this is the case i'm facing. Its a small business and The respondent is very stubborn and would sooner run up 10k court costs than settle 2k for my losses. strange but true. The relationship working together completely broke down and he wanted me out. It is personal and he wouldn't give me his last penny.
100% he will try for costs if he wins. It's just another victory for him.

Not strange at all, been there, done that!

BTW I tried to contact the free advice lines you mentioned for second opinion. it looks like these only work in term time. But thanks for all your help.

I thought it was still term time, till mid-June or thereabouts.

[happylife]

Re: Withdrawing a claim Advice needed

You should be able to withdraw your claim merely by writing to the tribunal. As you are the claimant, you cannot be forced to proceed with a claim you brought yourself. If you think they could go for costs, you could try agreeing to settle the matter purely on the basis of them not applying for costs.

Costs are only awarded when the claimant's case was so weak it shouldn't have been brought in the first place or when their conduct has not only been unreasonable but it has also had an impact on the respondent's costs. Yerrakalva v Barnsley Metropolitan Borough Council may be useful should they try for a costs order:


As you will see, even though it was established that the claimant had lied, those lies were not seen to have had an effect on costs. This may not be applicable to you in terms of lying but the principle is that the costs application should reflect the impact the claimant's conduct has had on costs.

Thanks for this very interesting to know. My claim is not based on any lies. The Respondent has two witness statements which exaggerate the incident. I have to take these as they have witnessed. Although under cross examination may paint another picture.
And as it's balance of probabilities will go against me. The Solicitor who read over my case said he was appalled by the Respondent and how he went about things. unfortunately in Employment law he was procedural correct and this is what the tribunal will look at. Not the moral side.
I'm happy to send you the case in private. Not for Advice, but to see for yourself.

thanks for all the help on this I really appreciate it.

I thought it was still term time, till mid-June or thereabouts.

Will give another try today. No answer and it said term time. Left message for call back. One other said they could not do it till September

[FlamingParrot]

Re: Withdrawing a claim Advice needed

Thanks for this very interesting to know. My claim is not based on any lies.

I didn't think it would be, in the case above it was established that the claimant did lie, yet the costs order failed.

The Respondent has two witness statements which exaggerate the incident. I have to take these as they have witnessed. Although under cross examination may paint another picture.

In my case the Respondent lied on his WS more than once but it was about things that could not be proved one way or other because there were not witnesses and they were not even crucial to the case.

And as it's balance of probabilities will go against me. The Solicitor who read over my case said he was appalled by the Respondent and how he went about things. unfortunately in Employment law he was procedural correct and this is what the tribunal will look at. Not the moral side.

There are two elements, one is whether the dismissal was justified, the other is the procedural side. There are times when even if the dismissal was justified, it could be unfair because the Respondent did not follow proper procedure.

I'll drop you a PM. :typing:

[happylife]

Re: Withdrawing a claim Advice needed

I didn't think it would be, in the case above it was established that the claimant did lie, yet the costs order failed.


In my case the Respondent lied on his WS more than once but it was about things that could not be proved one way or other because there were not witnesses and they were not even crucial to the case.


There are two elements, one is whether the dismissal was justified, the other is the procedural side. There are times when even if the dismissal was justified, it could be unfair because the Respondent did not follow proper procedure.

I'll drop you a PM. :typing:

Many thanks for your help. I have dropped you a reply. :tinysmile_twink_t2:

[FlamingParrot]

Re: Withdrawing a claim Advice needed

Many thanks for your help. I have dropped you a reply. :tinysmile_twink_t2:

I shall take a look, hope it all goes well and they don't try for costs, do keep us posted. :typing:

[happylife]

Re: Withdrawing a claim Advice needed

I shall take a look, hope it all goes well and they don't try for costs, do keep us posted. :typing:

received from ACAS conciliator today.

"
The other side have confirmed they agree in principle to your proposal, a withdrawal in exchange for a commitment that costs will not be pursued. This is subject to terms, which will be sent to me in due course and I will let you have them as soon as I receive them.
"