Employment Tribunal (Constructive Dismissal) Legal Aid Caution

[Geronimo1]

I have been involved in a Constructive Dismissal case at a Scottish Employment Tribunal for almost a year.

 

I have already expressed elsewhere how frustrating it is for an employee to make a successful claim and how it is no surprise that fewer than 5% of claims are successful, briefly:

 

• They get to present their case after hearing yours and there is no way of contradicting anything they say.
   
  
• Witnesses who still work there are reluctant to testify against the employer.
   
  
• They outnumber you grossly and if they get their story straight they appear more credible.
   
  
• Giving evidence last it is fresher in the minds of the adjudicators.
  

 

My case is quite complicated but it involves not being employed as per the job I was offered after moving home (250 miles), not being properly supported, ignoring grievances and stress to an unimaginable degree. I had claimed for loss of earnings plus to be re-employed in the position I had been originally offered.

 

But today I had a bit of a bombshell. After four days of hearings, the Tribunal was adjourned in December until 15th March (two days time) and having been made a number of risible offers to settle the case over the past few months, I finally decided that I had had enough, as much as I felt that my former employers should be held to account I could not face two more days of hearings, listening to my former manager lie and the possibility that the Tribunal might fall for it. They made a final offer which was not great but I thought that it would give me the resources to move on. I had until 5.00pm today (13th March) to decide whether to accept it and yesterday, after some consideration, I contacted my solicitor instructing him to do so.

 

I had my first decent sleep for almost a year.

 

But then first thing this morning, I had a call from my solicitor's office telling me that I would forfeit most, if not all, of the money I had been offered to pay my fees as the Legal Aid conditions changed a year ago allowing fees to be 'clawed back'. My solicitor is in court with other cases all day so I can't discuss it with him.

 

I phoned the Legal Aid Helpline to asked for urgent advice - given that I have until 5.00pm to make a decision. They said that my solicitor should have informed me about this but I am sure that he did not - and given that he was persuasive of me accepting an earlier, obviously lower, offer, I would have been in the same situation - only today did I receive advice from his office that I would probably receive little if any of the award.

 

There is a mechanism for appealing agains clawback but given the timescale, I cannot appeal until after I respond to the offer and it may well be that even if I accept their offer, all the stress and anguish of the last year has been for absolutely nothing. To say that I felt devastated at this revelation is an understatement.

 

I am of the feeling that I have no alternative but to press on with the Tribunal even with the odds stacked against me.

 

Whilst I post this as a caution, or at least information, to others, if anybody has any constructive advice before today's deadline, I'd be grateful.

[becky2585]

Hello,

 

I am not entirely sure about the Scottish jurisdiction, but if its the same as the UK provisions then this will be the statutory charge - more information here - http://www.legalservices.gov.uk/docs/news/Statutory_charge_briefing_290307.pdf

 

Your solicitor should have brought this to your attention at the start of the case - I'd have a look through your client engagement letter, terms and conditions of business and any other agreements with the legal representative. It could arguably be negligent for them not to have informed you of this and therefore you could have a complaint against them.

 

However, you could also lose your legal representation if you turn down what your solicitor considers to be a good offer.

 

If you do receive more in Tribunal you'd still probably have to pay back some of the fees. Again, have a look through your documents - I strongly suspect it will have been provided in the standard terms of business and you will just have overlooked this (as many people do!).

[Geronimo1]

Thanks for the reply, Becky.

 

I just had a call from my solicitor who admitted that he had been wrong by not informing me.

 

He seems to think I have a good case to appeal for the clawback to be waived on grounds of hardship and, as I pointed out to him, as the claim against my former employer was largely based on loss of income and that I have not been employed since, it would surely not make sense to have to pay the fees myself.

 

I'm also waiting to hear back from ACAS who are arbitrating and forwarded the offer to explain to them why I have not responded to the offer.

 

What I thought was going to be the first day I could truly relax has turned out to be the most stressful for a long time.

[Browncow]

Thanks for the reply, Becky.

 

I just had a call from my solicitor who admitted that he had been wrong by not informing me.

 

He seems to think I have a good case to appeal for the clawback to be waived on grounds of hardship and, as I pointed out to him, as the claim against my former employer was largely based on loss of income and that I have not been employed since, it would surely not make sense to have to pay the fees myself.

 

I'm also waiting to hear back from ACAS who are arbitrating and forwarded the offer to explain to them why I have not responded to the offer.

 

What I thought was going to be the first day I could truly relax has turned out to be the most stressful for a long time.

Good luck with all this Geronimo. I was shocked by what happened to you. I agree that the Tribunal system is really weighted against the employee but the legal profession, even my own solicitor, refuses to acknowledge that.

 

It is good that you have alerted others to the pitfalls of legal aid. Were you representing yourself at the Tribunal as I know that legal aid do not provide that?

 

I think that self-representation is another myth. Lawyers and judges often resent having to deal with Joe Public directly and, aside from that, it is just unfair to ask a worker to self represent when the employer has a barrister.

[Geronimo1]

Well, I have to say that I still had a trace of a belief in justice before this episode but one of the first things my solicitor told is that it wasn't about justice. It was just a game.

 

No, I wasn't representing myself, I had planned to but part of the issue was stress and to be honest, as much as I am normally pretty good at holding my own, this started to overwhelm me. There were moments when I wished that I had, though. And as far as I know, it was covered by Legal Aid.

 

Funny you should raise this (with your name and avatar) because I briefly told my postman what had happened this morning (I live in a very rural area and the postman spends about 20 minutes at every house, I think!). Anyway, he recounted an instance of two warring neighbours to whom he he delivered endless solicitors letters. One of them told him about a picture n their solicitors wall which portrayed two people fighting over a cow. One is pulling on the cow's horns and one is pulling on the tail (that would be the person who was most likely to get shat on, I guess) and there is a solicitor under the cow milking it. I have to say, that image will remain in my minds eye whenever I think of solicitors from now on.

 

I think that a bonus disappointment for me is that I used to want to be a lawyer when I was a kid because I had a fantasy about justice. What a charade!

[Browncow]

Well, I have to say that I still had a trace of a belief in justice before this episode but one of the first things my solicitor told is that it wasn't about justice. It was just a game.

 

No, I wasn't representing myself, I had planned to but part of the issue was stress and to be honest, as much as I am normally pretty good at holding my own, this started to overwhelm me. There were moments when I wished that I had, though. And as far as I know, it was covered by Legal Aid.

 

Funny you should raise this (with your name and avatar) because I briefly told my postman what had happened this morning (I live in a very rural area and the postman spends about 20 minutes at every house, I think!). Anyway, he recounted an instance of two warring neighbours to whom he he delivered endless solicitors letters. One of them told him about a picture n their solicitors wall which portrayed two people fighting over a cow. One is pulling on the cow's horns and one is pulling on the tail (that would be the person who was most likely to get shat on, I guess) and there is a solicitor under the cow milking it. I have to say, that image will remain in my minds eye whenever I think of solicitors from now on.

 

I think that a bonus disappointment for me is that I used to want to be a lawyer when I was a kid because I had a fantasy about justice. What a charade!

 

I like that image of the cow Geronimo. The lawyer underneath milking it is very apt.

 

I am going to Tribunal in a few weeks and am beginning to see what a trial (pardon the pun) it will be irrespective of the outcome. Like you I am likely to just break even and will never get any compensation for what I have had to endure. However, the alternative was to be walked over with big boots so what else could I do?

[Geronimo1]

I'm afraid I haven't had the energy to look too much at other people's issues - anything more than a quick glance and it overfaced me with information which, along with my own stuff, I could not digest.

 

Without knowing what the circumstances are - post a link to the thread if it's on here - I can probably cope now - I can only offer general advice. The hardest part for me was coming face to face with people who had caused me problems - though I never got to face the manager who was going to be the final witness. She was just a lying toad. But try not to let the situation get to you. You have probably had advice from your solicitor or others to this effect but it may get nasty - it is extremely important to stay calm and not let the questioning rile you. I had no end of accusations laid at me in the form of, 'I put it to you Mr Geronimo, that...' including that I had contrived the whole thing from the start, i.e. moved 250 miles to take a job, work for 15 months, have a severe nervous breakdown etc. just to be publicly humiliated by a nasty, witless lawyer. I was repeatedly accused of incompetence despite having never one been given anything but positive feedback about my work. I was even told that even though I was now in a relationship where I moved to, I should just pack up and go home. I asked what they meant by home and was told, 'back where you came from.

 

Hopefully, you won't have that kind of treatment but if you do, just don't rise to it. Actually, I did in a way. The very first question I was asked was an 'I put it to you...' and they had a smarmy grin on their face as if to say, I've got you, you little piece of s**t' and I asked them why they were looking at me with that stupid smile on their face. Everything went a bit quiet, they said that they weren't smiling and continued like the wide mouthed frog (if you know that old joke) with their lips very tightly pursed.

 

But good luck.

Edited March 15, 2012 by honeybee13
Inappropriate language.

[Browncow]

It does sound horrible and it is appaling that they are allowed to get away with it. Anyway it is over now and fingers and toes crossed that you do not have to replay the legal aid money.

 

Best of luck!

[professional1964]

OMG Geronimo you have been through hell. I am going through similar myself so you are not alone. The lies, lies and more lies just keep coming. I used to lye awake at night in turmoil over it all. I myself am on medication because of the anxiety. How do these dishonest people live with themselves. You can stand tall because you know you have told the truth and although I am not going to preach, there is only one Judge and it isn't the one at the Tribunal. Those liars are spineless creatures not worth worrying about. Please let us know what happens. Good Luck.

[madari]

...Two people fighting over a cow

One is pulling the cows horns and the other is pulling on the tail[that was the person most likely to get shat on..]

and there is a solicitor under the cow milking it...]

 

And the name of the solicitors under the picture was : `SUE GRABBIT & RUN`

[Geronimo1]

I have to point out that as part of my settlement, I am not permitted to discuss the terms nor the circumstances leading up to my employment termination but I think it is safe to talk in generalities.

 

Until Tuesday night, when I accepted the offer and thought it was all over, I hadn't had a decent night's sleep since around October 2010 when things really started to go badly at work. I was taking medication for a digestive problem (which I've had since a botched operation a few years ago) was made much worse by stress - I'll spare the details about that but it was grim. I had been offered medication for the stress and depression but I'd had such medication before and the side effects were not worth the benefits, so I tried to tough it.

 

I had been trying to get assistance from ACAS who I have to say, have been as much use as TalkTalk technical support have been for my girlfriend, i.e. not a bit. I had tried phoning a dozen times and never really got to speak to anybody.

 

The night before I finally quit I was on the verge of suicide. I had everything ready and spent an hour on the internet trying to make sure I was going about it the right way as I did not want to wake up with brain damage. I stumbled upon a short article which asked what it was that I wanted to achieve by dying, was it relief from suffering? It went on to say that relief is a sensation, and you cannot experience sensations when you are dead. I made up my mind that I would go to work the next day and try to phone ACAS again and if they could not offer any help, I would just resign.

 

I tried several times to phone ACAS without success - I just got voicemail and left a number of urgent messages. So, I typed a resignation letter and walked out.

 

Incidentally, I contacted ACAS again yesterday to ask their advice on the clawback revelation and got a response to the effect of, 'yeah, so what!'. I really don't know what they have done in all this apart from pass messages between solicitors - which I'm sure most e-mail applications can handle quite well. I definitely have not witnessed any advice, conciliation or arbitration.

 

And as for honesty, the organisation I was working for is areligious organisation (though I am fairly agnostic) and those who lied lead Christian services and the lies were told under oath.

 

It is of slight consolation that these people have only succeeded by demeaning themselves. I am sure they think they got away with it and that I have been adequately compensated - not realising that I may well get nothing.

 

It ought to be a lesson learned but unfortunately I tend to fall foul of my tendency to trust.

[professional1964]

I have to point out that as part of my settlement, I am not permitted to discuss the terms nor the circumstances leading up to my employment termination but I think it is safe to talk in generalities.

 

Until Tuesday night, when I accepted the offer and thought it was all over, I hadn't had a decent night's sleep since around October 2010 when things really started to go badly at work. I was taking medication for a digestive problem (which I've had since a botched operation a few years ago) was made much worse by stress - I'll spare the details about that but it was grim. I had been offered medication for the stress and depression but I'd had such medication before and the side effects were not worth the benefits, so I tried to tough it.

 

I had been trying to get assistance from ACAS who I have to say, have been as much use as TalkTalk technical support have been for my girlfriend, i.e. not a bit. I had tried phoning a dozen times and never really got to speak to anybody.

 

The night before I finally quit I was on the verge of suicide. I had everything ready and spent an hour on the internet trying to make sure I was going about it the right way as I did not want to wake up with brain damage. I stumbled upon a short article which asked what it was that I wanted to achieve by dying, was it relief from suffering? It went on to say that relief is a sensation, and you cannot experience sensations when you are dead. I made up my mind that I would go to work the next day and try to phone ACAS again and if they could not offer any help, I would just resign.

 

I tried several times to phone ACAS without success - I just got voicemail and left a number of urgent messages. So, I typed a resignation letter and walked out.

 

Incidentally, I contacted ACAS again yesterday to ask their advice on the clawback revelation and got a response to the effect of, 'yeah, so what!'. I really don't know what they have done in all this apart from pass messages between solicitors - which I'm sure most e-mail applications can handle quite well. I definitely have not witnessed any advice, conciliation or arbitration.

 

And as for honesty, the organisation I was working for is areligious organisation (though I am fairly agnostic) and those who lied lead Christian services and the lies were told under oath.

 

It is of slight consolation that these people have only succeeded by demeaning themselves. I am sure they think they got away with it and that I have been adequately compensated - not realising that I may well get nothing.

 

It ought to be a lesson learned but unfortunately I tend to fall foul of my tendency to trust.

 

Oh Dear Geranimo you sound the same as me. The trust thing! I trusted too many people too. People at work I thought were my friends, but they too have lied about me. Some friends of mine are saying that these people will also lie when it comes to taking the oath, but I wonder if they can bring themselves to do that. I hope not. I would much prefer that there could be a lie detector system in operation at Employment Tribunals. I went to watch a case and it was SO SO obvious to me that the Respondent and their witnesses were lying i.e. none of there stories added up, one had the body language that he was lying and he was sweating profusely and fidgeting around. His story did not add up with what the other witness for the Respondent had said. The other witness was sitting there looking at the ceiling as he realised that the was giving a different account of what was happening. You see these liars have to have very good memories. The claimant however was honest, but was defending himself, and didn't ask the right questions. My husband and I were sitting there thinking that he would win because all his facts added up, but no when it came to the last day they said he hadn't won. I felt sick myself - I had spoken to this young lad of 24 who had been harassed and bullied because of an assault where he had his front teeth smashed out and therefore his image did not fit the company's "image" for a high end jeweller. Up until the time he had his teeth smashed out he was getting on really well with the company, but as soon as the new area manager went into the store and saw his lack of teeth everything changed. He couldn't afford the operation, which would involve taking a piece of bone from his leg to implant in his jaw. He only had £2,500 from the claim for the assault and the operation as £8,000; so in effect, in my opinion that is why they started the bullying. He resigned after being off with depression. When the Judge said he hadn't won I felt so sorry for him, but you know what he did he simply shook the Respondents' hands and left. I asked him if he was OK and all he said was "I can have closure now - this has drained me for over a year". Even though he didn't win he had closure. He knew he hadn't lied and they knew they had. The Tribunal system doesn't seem fair to me or to many. How do these people get away with lying so obviously. I cannot wait to get mine over and done with as it still takes a lot of my time thinking about it. I think a lesson can be learned that you cannot trust anyone at work. Only trust your family and close friends and if there are any problems at work put them into an email from your personal email address that cannot be lost or deleted from your work email. Do things by the book and do not give any leaway or take on extra work to "help out" because those that do are fools who will be taken advantage of and lied about because they are good natured. I too have health problems (a chronic bladder condition), which worsens with stress; perhaps they should have a day in our lives!

[Geronimo1]

I have always kept all my e-mail apart from spam and when I bought a new laptop, I transferred all my old mail to it. I also have all my text messages because that's ow some of it happened. It's so cowardly to tell people stuff (sorry, for reasons stated above, I can't be specific here) by tex message. They said that they did this because they thought I could not get a phone signal. This is such a lie because there was a period when I could not get a signal but that was when I changed provider about three months later and the SMS messages are on my old phone - as if it needed proving. But the point being that I had e-mail and SMS evidence from them which proved that they were lying. And of my three witnesses, one very bravely testified that they had been asked to lie - the manage had, it seems, been telling everybody something that was untrue between me and this witness (I wish I could be specific because this was SO bad!) and I had been led to believe it was true for almost two years and it was this lie that was almost pivotal to their response. But to discover that the manager had been responsible a rumour which everybody, including me, thought was true, was shocking.

 

But it is saying something when, with all this (and more) evidence in my favour, my solicitor still didn't rate my chances of success and was advising me in a subtle way to accept an offer which was half the final offer - bearing in mind that I may well not get any of the final offer anyway!

 

But the rot, as far as I can see, is much deeper. I confided in quite a few people at work and one, as part of their role at work, took my cause to the appropriate people. They once said that my experience at work had been a 'catalogue of failure' on the employer's (mainly the manager but others too) part. This person gave evidence against me and lied. Another has been portrayed in the cinema if you have ever seen the classic film, The Caine Mutiny (7.9 on IMDB). In it, Lt Tom Keefer (played by Fred MacMurray) picks up on the discontent in the ship's crew and stirs things up, eventually fomenting mutiny. But when it comes to it, he backs away cowardly and denies any involvement and gives evidence against the mutineer. Well, I know for a fact that at least half the senior staff want rid of the (mis)manager who is incompetent and has a reputation within the wider organisation, i.e. nationally, for being so. Yet, when the opportunity came to expose them, these shrivelling weasels backed the management and attacked me - directly! They get what they deserve - or maybe they need to have someone to gripe about. It's as if they were facing an open goal and turned and hoofed the ball back into their own net. I have heard that these people have been saying how disappointed they are that the manager never got to give evidence because they were looking forward to them being 'bloodied'. WTF!

 

But as with the young man you talked about, there is a sense of closure and satisfaction that I told nothing but the truth. The only trouble in that respect is that my girlfriend still works there and has done for over ten years. Plus, I mentioned that I had moved 250 miles, I now live in the middle of nowhere having furnished and equipped an unfurnished rented house. My employment prospects are very slight - I have applied for about 70 jobs in the last 10 months and not had one interview even though I have been well suited to many and in one case I had everything the employer asked for. I suspect that my age is now becoming a factor. Prior to this job, I had been self-employed for about ten years until I had the botched operation and then was pretty ill for a couple of years.

 

So, it may be some time before I can really put this behind me.

[professional1964]

Your situation sounds very much like my own. I just received a letter from the Tribunal saying there will be a pre hearing review. Now I am worrying as that probably means they aren't taking it that seriously and may chuck it out. I need to get more advice so will post something. Please keep us posted on how you are getting on.

[Geronimo1]

It's now over two months since I accepted the offer and there seems to be no progress at all - literally nothing!

 

I have contacted my solicitor a number of times but he simply says he will be in touch.

 

I have started to wonder if there might be a limited period in which I might possibly make a complaint about my solicitor and that he is trying to run it out. Can anybody advise me on this, please?

[professional1964]

You could call the Solicitors Regulation Authority and ask for their advice. Good luck. Like you I haven't managed to find a job yet have applied for so many. I am starting to get very paranoid!

[Geronimo1]

Hello P1964,

 

Yes, I am about to be referred to the Back to Work programme. I have been told that I now have to start looking for work up to 90 minutes travelling time away, i.e. three hours per day. I did a back-of-an-envelope calculation and worked out that if I were to take a 40 hours per week job that far away paying national minimum wage, I would net about £50 per week after tax before I even started thinking about paying my rent (£95), food or bills.

 

I had my first proper interview just over a week ago at a company providing services to British people about to get married. It was advertised as a Proof Reader - though it turned out they actually wanted a Copy Writer. The salary was advertised as £1400 per month. Yet at the interview, the owner/manager said the pay would be national minimum wage, a considerable difference and a pretty paltry reward for a job requiring a pretty high level of proficiency. When asked if I had any questions, I asked if their might be any openings for my graphic design, web design or filmmaking skills and was told that all that kind of work was done in India. Apart from the eventual dawning that my line of work had finally gone the way of so many industries, I realised that this company was acting as a funnel for money to leave the country and that the only people they employed were a handful of people whose knowledge of the English language was essential to the selling of their services - everybody else was abroad.

 

To be honest, I am feeling pretty despondent about my situation. I actually feel that I should cut back on the amount of time I spend looking for work and spend more time doing something practical that I enjoy as a kind of work substitute but the pressure I am under from the Job Centre is overwhelming. I moved to my present location simply to take the job I was offered which led to the tribunal. Moving is not an option for several reasons but I am so remote from the majority of jobs that living here without a job is very difficult. At least the summer months are more bearable.

[professional1964]

You sound as if you are getting very down about it. I have applied for sooo many jobs. I am now awaiting to hear from a second interview. If I get this job I will be earning £9.00 an hour whereas I used to get £12.00 an hour. Have you thought about working from home or setting up your own business doing something. I think there may be quite a demand for people designing and creating websites for people. Try and think 'outside the box'. If I can help please let me know.

[Geronimo1]

Demand for websites etc.? You would think so, eh!

 

I used to have my own business before I moved but had been off sick for two years following a botched operation and a month in intensive care - I was hardly able to walk for almost a year and my digestive system still causes me serious problems. My business died as a result. I was actually due to start a very lucrative filmmaking job but was physically unable to do it and it went to somebody else.

 

Once I felt able to do some work, I volunteered for a while and then got a job driving kids with special needs to school. It wasn't great pay but I loved it - I really enjoyed working with them. Then the fuel prices went up and the company lost the contract. Some time afterwards, I was seeing somebody in Scotland and started volunteering on an informal basis at their place of work - a rural community for adults with learning difficulties. When it arose, I applied for a job there as a workshop leader. I didn't get it - though, I am told it was very close - and a few months later they approached me to offer me a job in more of a support position. I explained that it was not my usual line of work but they said that after a couple of months I would have another part time role doing something more appropriate to my skills.

 

To cut a long story short, I moved 250 miles for the job, spent all my salary on furnishing, fitting out and refurbishing an unfurnished cottage in a remote area on the edge of the Highlands. They did not keep their promises and when they employed somebody new to work alongside me who had polar opposite ways/thoughts/ideas, it became increasingly impossible. I felt betrayed and unsupported - the stress took its toll on my digestive system and led me to the brink of suicide.

 

The nearest (very small) town is about 10 miles away. There is hardly any employment in my usual creative fields and I am completely unqualified as a support worker. I am applying for anything for which I think I am capable - but it feels like I would be as well posting my applications in the local paper recycling skip (metaphorically - most are online). I am in my fifties and I am certain that that is an unconscious factor when employers look at my application. I am also certain that at least one employer discriminated against me because of my gender.

 

I never miss an opportunity to tell people I meet what my skills are in case they might have or know of something I could do but I am not a natural salesperson - I am probably a bit annoying for them.

 

I am not so down about the lack of an occupation - I am very resourceful and practical and there is plenty to do to keep myself busy (and keep the bills down). I struggle a bit money wise but have learned to be frugal. What I find hard to cope with is the intense pressure from the Job Centre and the lack of understanding of the situation I have found myself in. And to be perfectly frank, if I was forced into a job which did not stimulate me and provide at least some outlet for my creativity, I'd rather take a one way trip to a Swiss clinic.

[Geronimo1]

You could call the Solicitors Regulation Authority and ask for their advice.

 

A quick update.

 

I submitted an appeal to Legal Aid against the clawback of the legal fees and just heard from my solicitor that they have asked me to say what I would use the money for.

 

It seems a bit out of order considering that when I accepted the settlement, there was no stipulation about how I would use the money.

 

But even if they turn down the appeal, I have been advised that I have a good case to pursue the money by other means.