Bujon - Employment Tribunal Help Please

[ritemaster]

Re: 28 day time limit for ET3 form

At many of the failed constructive dismissal hearings; the case will have ended after the claimant presented his/her case as the Tribunal decided at that point that the burden of proof had not been met.

If only a similar thing happened in unfair dismissal cases where the respondent goes first!!!

One thing I will never understand is why the employers representative carries on with a case even when it becomes clear the employer has messed up big time and the dismissal was not fair.

[mariefab]

Re: 28 day time limit for ET3 form

What catches out claimants in constructive dismissal cases is that the employer doesn't have to prove a thing.
The burden of proof is wholly on the claimant.
Unlike 'ordinary' unfair dismissal cases the claimant often presents their evidence first.
At many of the failed constructive dismissal hearings; the case will have ended after the claimant presented his/her case as the Tribunal decided at that point that the burden of proof had not been met.

[FlamingParrot]

Re: 28 day time limit for ET3 form

Sad to hear the flaws in the whole process really. Because of the relatively small awards, paying for legal representation makes self representation the only real option in my case.

It is possible to get pro-bono legal representation (once more, twice lucky here :grin.

The stress and effort of having to 'play the game' off the back of a very stressful constructive dismissal situation makes the whole process seem disproportionate.

Sadly constructive dismissal cases have a very low success rate, perhaps because the whole concept is widely misunderstood; many people seem to think they can just resign and then claim constructive dismissal. :mmph:

Having said that, employers may still consider a 'commercial settlement', I know someone who submitted a claim on those basis after resignation and, IMHO he didn't have a strong case, yet he did get a settlement in 2008, however, the settlement was rather small and a good reference was an incentive for acceptance.

I firmly think there should be some penalty that means if a defendant at a late stage makes an offer of settlement it should carry with it an additional cost for wasting everyone's time.

I would second that! :clap2: :clap2: :clap2: Where do I sign the petition?

....and there should be an additional uplift when they still refuse to make an offer even after their case has been declared as dead as a dodo so to speak" :grin:

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What actually is sickening, is that my position has been filled by a new staff member and the role was advertised at less salary than I was on, a difference of more than what I offered them in the early conciliation phase....so far they are quids in...Or so they think!!!

Or SO THEY THINK... but are they really? Uhmmmm... we shall see.... :wof:

[Bujon]

Re: 28 day time limit for ET3 form

What actually is sickening, is that my position has been filled by a new staff member and the role was advertised at less salary than I was on, a difference of more than what I offered them in the early conciliation phase....so far they are quids in...Or so they think!!!

[Bujon]

Re: 28 day time limit for ET3 form

Sad to hear the flaws in the whole process really. Because of the relatively small awards, paying for legal representation makes self representation the only real option in my case. The stress and effort of having to 'play the game' off the back of a very stressful constructive dismissal situation makes the whole process seem disproportionate. I firmly think there should be some penalty that means if a defendant at a late stage makes an offer of settlement it should carry with it an additional cost for wasting everyone's time.

[FlamingParrot]

Re: 28 day time limit for ET3 form

Same situation as myself. Even though my employer knows full well the perpetrator is a bully, they feel that having simply followed an in house protocol for grievance and found no evidence in their investigations equates to being in the right! A simple pat on the back and a small redundancy offer at that time and I'd have simply walked. It's the blatant denial that is under my skin now.

I have said that so many times. It would have been easier for everyone had my employer done that. His stubbornness to open his eyes and see the world doesn't revolve around him is the reason we are heading for a tribunal.

That's almost always the case but they all seem to think they've got a good case, especially when they've been plotting your dismissal for at least a year (twice lucky! :lol. They think they've got you over a barrel and everything tightly sewn up and they are on top of things and have barricaded themselves against anything you may throw at them. Yet they can get it soooooo wrong! :grin: :grin: :grin:

Arrogance makes them think they know everything when in fact they don't know how much they don't know! msl:

[FlamingParrot]

Re: 28 day time limit for ET3 form

I think it's one of those things, see if a settlement offer is even on the table before deciding the benefits of accepting it. I think that is why I was wondering if there were any tactic you could adopt at the early conciliation stages to prompt an early offer and therefore make a judgement call on the most reasonable outcome.

In my experience (including those of others I know and know of), they won't even contemplate a settlement before a claim has been issued. Threats of legal action are very common in all areas of life and the vast majority never come to fruition, so employers usually assume you are just bluffing until you issue a claim. I'd like to know how many cases have been settled by early conciliation, surely ACAS will have stats to show whether the system is working. If no settlements are made at this stage it's hardly worth keeping the additional step in the process. :mmph:

My employer refused straight away the early conciliation. I cant see him entertaining the thought of making an offer because as far as he is concerned he is in the right and wont be dictated to by anyone. He would see the making or accepting of an offer as an admission he was wrong.

Same here and I can see that applying to... 99% of cases? :ohwell:

Early conciliation is compulsory so it's hardly worth discussing its merits. The way I see it you get an extra month to prepare your claim so there's some good in it.

Although there is no requirement to send a letter before action before issuing a claim, I still think it's worth doing and quoting settlement figure on it. In fact the ACAS guy asked whether there had been any attempt at settlement and the answer was "yes, a letter was sent..." The respondent would not doubt see it as yet another threat-o-gram, however, when things move forward, you can always argue that you did your best to sort out the situation from the start and that they could have saved a lot of money and hassle by negotiating with you at that point. :thumb:

[ritemaster]

Re: 28 day time limit for ET3 form

A simple pat on the back and a small redundancy offer at that time and I'd have simply walked.

I have said that so many times. It would have been easier for everyone had my employer done that. His stubbornness to open his eyes and see the world doesn't revolve around him is the reason we are heading for a tribunal.

[Bujon]

Re: 28 day time limit for ET3 form

My employer refused straight away the early conciliation. I cant see him entertaining the thought of making an offer because as far as he is concerned he is in the right and wont be dictated to by anyone. He would see the making or accepting of an offer as an admission he was wrong.

Same situation as myself. Even though my employer knows full well the perpetrator is a bully, they feel that having simply followed an in house protocol for grievance and found no evidence in their investigations equates to being in the right! A simple pat on the back and a small redundancy offer at that time and I'd have simply walked. It's the blatant denial that is under my skin now.

[ritemaster]

Re: 28 day time limit for ET3 form

My employer refused straight away the early conciliation. I cant see him entertaining the thought of making an offer because as far as he is concerned he is in the right and wont be dictated to by anyone. He would see the making or accepting of an offer as an admission he was wrong.

[Bujon]

Re: 28 day time limit for ET3 form

I think it's one of those things, see if a settlement offer is even on the table before deciding the benefits of accepting it. I think that is why I was wondering if there were any tactic you could adopt at the early conciliation stages to prompt an early offer and therefore make a judgement call on the most reasonable outcome.

[FlamingParrot]

Re: 28 day time limit for ET3 form

One thing to bear in mind is that the process can take a very long time and the hearing may be nearly a year after your dismissal. You may or may not find new employment in that time. The compensatory award is up to a year (if you've not found work). The schedule of loss can have a projection for loss of earnings for up to a full year. By the time you go to a hearing your potential award could well be much higher than your losses to date at this point in time, but there's no guarantee that you'll win or that you'll be awarded the maximum amount. You are not obliged to accept a settlement but if you don't you may "live to regret it" so to speak. At the end of the day the decision is yours. :decision:

You need to realistically estimate your chances of success at the ET. It helps to have the opinion of an employment lawyer who can assess your case and give you an estimated percentage of success. Once upon a time I was given a 20% chance so I accepted a small, almost derisory settlement with an agreed reference. I had been warned about costs against me and the other side had hired Baker & McKenzie to represent them. :scared:

[ritemaster]

Re: 28 day time limit for ET3 form

On the back of that answer, if they offered a settlement which was less than the total award you may get in the courtroom, would it be seen as unreasonable to decline that?

I know there is no guarantee of how much you will be awarded, or even if you'll win your case, but if you have a very strong case and feel you could get a better deal in the court, shouldn't you try?

[FlamingParrot]

Re: 28 day time limit for ET3 form

If they offered a settlement which was less than the earnings you've lost to date, would it be seen as unreasonable to decline it?

If your employment ended recently and you are still at the early conciliation stage, your earnings lost to date wouldn't be as much as the projected losses included in a schedule of loss, nor would a settlement include any benefits recoupment so it would be in their best interests to settle at this stage.

Bear in mind in your schedule of loss you'd include:

• Wrongful dismissal (notice pay) = as many weeks' notice (based on net pay) as you were entitled to under your contract, most commonly 4.
• Basic award which is the same as statutory redundancy pay you'd have been entitled to, capped @ £464/week.
• Compensatory award which is the net pay you've lost to date minus the notice pay

[Bujon]

Re: 28 day time limit for ET3 form

Is it reasonable to decline an unreasonable offer?