Fairly urgent - tribunal advice needed

[kingofrod]

You aren't in any danger of a costs application being made against you if they aren't even prepared to submit it in open correspondence. Chances are that they know they're using bullying tactics but don't want the Tribunal to know about it!

I find myself falling more and more in love with you every day.

 

I did consider that they were trying to just bully me into dropping things. I found it strange that they'd tell me I couldn't pass the letter onto the Tribunal but that they said they could refer to it later, if they wished.

You may find the following info interesting its from directgov webite, regarding your right to time off for dependants link below:

 

http://www.direct.gov.uk/en/Employment/Employees/Timeoffandholidays/DG_10026555

Hi hun. I found this EXTREMELY interesting. It unfortunately doesn't say anything about what to do if the employer doesn't acknowledge the request for time off nor does it approve or decline the absense.

 

I have submitted my list of documents to the other side already..... Can I still refer to this section in the Tribunal?

 

I got a call from ACAS today but was unable to talk to the chap, so I'm calling him back tomorrow. Quite looking forward to it - he seemed like a really nice bloke so I'll be interested to hear what advice he can offer.

 

I think a lot of my fight against my former employer is that I did tell them I needed time off THREE TIMES but it was never acknowledged (which the employer admits to). Although I didn't follow specific procedure, I did follow a precedent that had been set. Regardless, the company has a duty of care, surely, to tell me they they aren't going to give me the time off I've asked for.

[becky2585]

When a letter is marked "without prejudice save as to costs", it means that it can't be disclosed UNTIL a costs application is to be determined. So if you acted unreasonably by say, refusing a high offer and then was awarded less at the Tribunal, they could argue for costs on the basis that you unreasonably refused that initial high offer but then were awarded significantly less... But they had to expend money preparing the case, which wouldn't have been necessary if the initial offer had been accepted. Just an example!

[MENOPAUSALADY]

 

I have submitted my list of documents to the other side already..... Can I still refer to this section in the Tribunal?

 

Hi kingofrod

 

as far as i know there is nothing to prevent you adding additional information to your bundle, but perhaps becky will know more.

[kingofrod]

Interesting. Thanks.

 

Becky, do you think my call from ACAS is connected, at all, to the letter regarding costs? Could the solicitor for the respondent contacted ACAS and said that they're looking to close this off now and asked them to contact me to discuss a settlement? The timing just seemed a bit coincidental.

[kingofrod]

Hi kingofrod

 

as far as i know there is nothing to prevent you adding additional information to your bundle, but perhaps becky will know more.

That's good - I hope Becky can confirm. I will wait and see the bundle the respondent sends to me and see if there's anything I'd like to add to it.

 

Their list of documents is huge - probably going to be a couple of hundred pages of stuff I'd consider almost irrelevant.

[becky2585]

You do have an ongoing obligation of disclosure, so yes, it is theoretically possible to add documents to a finalised bundle. However, the website link probably isn't necessary as clearly the tribunal judge will be au fait with the law on dependant leave.

 

Incidentally, that point does concern me slightly. Did your uncle live with you? Really, the statutory dependant leave provisions only generally apply to people in your household... Unless you have "primary responsibility" for them, in which case the provisions are a little wider.

[kingofrod]

Hi Becky,

 

I have my own home in Manchester but because I was often on the road, when I was home in Manch I'd usually stay with my aunt and uncle. I used to live with them full time and so lots of my bills etc, and the electoral role, have me listed at his address.

 

My aunt is at home with him, but she has he own health problems. She's normally OK caring for him, but on this occasion - because of the nature of the accident and the nature of the care needed - she wasn't capable of handling things on her own.

[kingofrod]

Spoke to ACAS today. Really nice bloke.

 

He put to the respondent my list of 'demands' and they, unsurprisingly, said "not chance".

 

He also said to them that I'm not prepared to drop the case in response to their threat over costs (not sure he'd have used the word "threat", although I did).

 

As mentioned previously, I knew/know that reinstatement is a long, long, long shot. So at what point should I start trying to negotiate with them?

 

EDIT - Hi Becky, did you get my PM? (sent in compliance with HB's/site rules )

Edited February 29, 2012 by kingofrod

[kingofrod]

Hi again all,

 

Am looking to reply to the respondent today regarding their letter threatening me with a costs order.

 

Following advice here and following a bit of further research, I'm of the belief that the chances of my being hit with costs are slim. I just wanted to really make sure before I replied formally to the respondent.

 

They've said that the costs are likely to exceed £10k and will therefore apply to the Country Court for the charge.

 

All scare tactics?

 

They of course repeat their case for sacking me, saying that a tribunal will NEVER find in my favour. This is all part of it though, right? Part of their job?

[kingofrod]

Here's a draft of the letter I'm considering sending. Any thoughts gang? :

 

I write in response to you letter of [DATE] in which you reject what I believe to be a mutually benicial offer of settlement in relation to the above case and also in response to your letter of [DATE] in relation to costs.

 

I believe you have already been informed by Mr. Xxxxx of ACAS that I reject the offer to withdraw from this case in order to avoid the potential of costs being awarded against me, however I felt it appropriate that I contact your directly to inform you of my decision.

I firmly believe that my case has merit and am sure you’re aware that for costs to be awarded against a claimant, the Tribunal has to find that [the claimant] has acted “vexatiously, abusively, disruptively or otherwise unreasonably, or that the bringing or conducting of proceedings has been misconceived”. I do not believe that I am guilty of any of the above behaviours, nor that this case is misconceived.

 

I recognise the mutual benefit of reaching an agreement/settlement before reaching the hearing stage, and would therefore request that you ask your client to reconsider my offer, reminding them of the following :

 

- - [bENEFIT] is a PROFITABLE part of [RESPONDENT]'s business and by permitting me access to this for a period equal to my length of service (although I am prepared to ‘negotiate’ on this point), [RESPONDENT] would be able to secure me as a profit-generating customer for that period of time

 

- - My performance before the incidents related to in this case had been, by [RESPONDENT]'s own admission, highly commendable with an exemplary attendance record.

 

I would ask [RESPONDENT] how they can, in good conscience, treat an employee such as myself with such a positive performance and attendance record as contemptuously as they are, and would be further interested to know whether [RESPONDENT] is aware of the intimidatory nature with which their representatives are conducting themselves in communicating with an unrepresented claimant.

 

I do appreciate your client’s offer of a ‘dates only reference’ in settlement of this case, however feel that an offer of the return of [bENEFIT] would, while costing [RESPONDENT] nothing, enable me to move forward after losing the job that I loved and was entirely committed to.

[mariefab]

- - My performance before the incidents related to in this case had been, by [RESPONDENT]'s own admission, highly commendable with an exemplary attendance record.

I would ask [RESPONDENT] how they can, in good conscience, treat an employee such as myself with such a positive performance and attendance record as contemptuously as they are, and would be further interested to know whether [RESPONDENT] is aware of the intimidatory nature with which their representatives are conducting themselves in communicating with an unrepresented claimant.

 

I'd leave out the above bits.

[kingofrod]

- - My performance before the incidents related to in this case had been, by [RESPONDENT]'s own admission, highly commendable with an exemplary attendance record.

I would ask [RESPONDENT] how they can, in good conscience, treat an employee such as myself with such a positive performance and attendance record as contemptuously as they are, and would be further interested to know whether [RESPONDENT] is aware of the intimidatory nature with which their representatives are conducting themselves in communicating with an unrepresented claimant.

 

I'd leave out the above bits.

Hi Marie,

 

May I ask why?

 

I did consider that the letter was becoming too emotive.

 

I would, however, like to be able to get those points across at some point....?

[mariefab]

You haven't said that this would be a without prejudice communication, so it could be shown to the Tribunal.

The first bit could suggest that you accept that the 'incidents' were less than commendable.

The second part suggests that the respondent is:

not acting in good conscience

treating you contemptuously

and makes an allegation of intimidation.

[kingofrod]

Thanks Marie. I had intended to change some of the above to :

 

"My performance before the alleged incidents in this case had been, by [RESPONDENT]'s own admission, highly commendable with an exemplary attendance record."

 

Should I just title the letter "without prejudice" but add a paragraph at the end saying that I reserve the right to submit the letter to the Tribunal if they choose to submit their letter to which I'm replying?

[mariefab]

I'd change it to, For nearly 10 years my performance has been, by....etc.

 

I don't think that you should title it "without prejudice" because you may (though hopefully not) wish to prove that you responded to their WP save as to costs letter saying that you didn't believe that your case was misconceived on the merits. My concern was that I wouldn't have liked the Tribunal to see the letter in its unaltered state.

[kingofrod]

That's great, Marie. Thanks.

 

I want to be able to submit this to the Tribunal to show that I have made reasonable efforts to come to an amicable agreement with the respondent - one that even generates profit for them. I also think it's important to have in writing that I believe my case to have merit - which I genuinely do.

 

Should I, therefore, add a paragraph saying that I reseve the right to submit the letter to the Tribunal should they decide to submit their WP SatC letter?

 

What are your thoughts on costs? Am I pretty safe, would you think??

 

KoF xx

[mariefab]

'Should I, therefore, add a paragraph saying that I reseve the right to submit the letter to the Tribunal should they decide to submit their WP SatC letter?'

As long as you don't put without prejudice on your letter I can't see why you'd want to add such a paragraph. Just keep a copy.

 

Do you understand the tactical implications of their WP SatC letter?

[kingofrod]

Ummmmmmmmmmmmmmmmmmmmm.... Not entirely, I suppose.

 

I felt it was largely a threat to get me to withdraw the case?

 

I thought the whole thing had to go to a pre-hearing review before costs would be awarded, and at the point of the PHR coming back and saying "Kingofrod has no chance, he should drop his case", then I could pull back and avoid costs?

[mariefab]

Is there a PHR booked?

[kingofrod]

Nope. Not that I've been informed. Is this a standard thing, or something that needs to be requested?

 

The bundles haven't been finalised yet - I am expecting that by 12/03.

 

The respondent has said that unless I withdraw by Monday they will go for costs.

[madari]

Hi,

 

Not read all your posts, but the letter seems too long winded,

 

Keep it short and to the point [max 2 paragraphs]

 

Otherwise you could find yourself as an architect of your own downfall.

 

I would simply write words to the effect :

 

`I have read with interest the contents of your letter and wish to inform you that it is my intention to progress the matter further`

 

It is not advisable to enter into quarrelsome litigation at this stage.

 

Save your quarrels for the big day in court.

 

As for costs against you, that simply isnt going to happen so dont worry.

Edited March 2, 2012 by madari

[kingofrod]

Thanks Madari.

 

Not a bad idea..... How about :

 

 

I have read the content of your letters dated XXXXX and XXXXX letters carefully and wish to advise that it is my intention to proceed with the above case.

 

I firmly believe that my case has merit and am sure you’re aware that for costs to be awarded against a claimant, the Tribunal has to find that [the claimant] has acted “vexatiously, abusively, disruptively or otherwise unreasonably, or that the bringing or conducting of proceedings has been misconceived”. I do not believe that I am guilty of any of the above behaviours, nor that this case is misconceived.

 

I recognise the mutual benefit of reaching an agreement/settlement before reaching the hearing stage, and would therefore request that you ask your client to reconsider my offer, reminding them of the following :

 

- [bENEFIT] is a PROFITABLE part of [RESPONDENT]’s business and by permitting me access to this for a period equal to my length of service (although I am prepared to ‘negotiate’ on this point), [RESPONDENT] would be able to secure me as a customer for that period of time

- For nearly ten years my performance has been, by [RESPONDENT]’s own admission, highly commendable and I have an exemplary attendance record

 

Yours faithfully,

 

[madari]

Hi

 

Too long, just put down what i suggested and let them do the runnung.[a couple of lines only]

 

or only the first paragraph of your amended letter

 

Further, if you are self represented then you could use their letter to your advantage, in that they tried to intimidate you into withdrawing your claim.

 

Good luck

[mariefab]

Much better!

[mariefab]

Their WP SatC letter informs you that they believe that your case is misconceived on the grounds that it has no reasonable prospect of success. So, they're giving you the opportunity to withdraw your claim now in return for which they won't persue you for their costs to date.

They have nothing to lose by doing this.

 

They'll hold on to it until after the Tribunal hearing and if you lose and the Tribunal judgement agrees that your claim before them had no reasonable prospect of success they will then present it and claim their costs.