Constructive dismissal? - ** SETTLED **

[becky2585]

Have you been ordered by the judge to set out the remedy you're seeking (ie your schedule of loss)? If not, you're not under an obligation to disclose it yet (usually such directions are set at a CMD). Chances are that in any event, it won't be referred to at any CMD, but it's good to be prepared.

 

I would say the Schedule needs amending as follows:

 

1. Add your date of birth/age at time of dismissal.

2. Is the pension date correct (2006)?

3. You should set out both net and gross weekly pay at the top so it's easier for the ET to read (also amend the "Nett" typo.

4. "loss of unfair dismissal/notice rights" should be removed and replaced with "loss of statutory rights". It's a set figure of £350, not £600 - the increase in length of service requirement doesn't affect that figure.

5. Injury to health needs removing as you can't claim anything for it. The injury to feelings is fine.

6. Remove the Vento guideline explanation - the Tribunal will be familiar with these!

7. Did you work your notice period, or does that need including too?

8. There's a discression/discretion typo.

 

In terms of the injury to health point, I understand your reasoning, but the tribunal doesn't have jurisdiction to award compensation for it, so there's little point in keeping it in. If you want to claim compensation for an exacerbation of your condition, it has to be done in the county courts.

Edited August 28, 2012 by becky2585

[dj1971]

Becky,

 

I think the draft you were looking at is an old one, so please find the updated version attached.

 

Injury to health I understand cannot be ruled on by the employment tribunal so have removed it and will submit a separate claim in the county court just for this. My understanding is there are lots of solicitors who will represent a PI claim on a no win no fee basis, so will probably arrange for representation on this one.

 

I appreciate there is no obligation on me to do this, but my proposed next steps are to send copies of the draft cmd agenda kindly provided by Becky, the draft schedule of issues and schedule of loss to the respondents solicitor and request that they approve the same. As discussed earlier my rational here is that it will reflect well on me if I am seen to be actively taking part in the process and at least trying to save the tribunal some time. For the schedule of loss we have not yet started negotiations through ACAS and I would like to eliminate early on any illusions the respondent might have about me being a soft target, or settling for a ridiculously small amount.

 

Would it also be prudent to send these to the tribunal at the same time, or should I want until they have been agreed or otherwise?

 

As always feedback, suggestions or otherwise are welcome.

 

Many thanks

DJ

Schedule of loss (2).xls

[lbruk]

Wait until ordered by the Judge about submitting details. In my opinion if you start submitting things before they are asked for you can be seen as a "know it all" without being legally qualified. However once ordered by the court, handing it in the next day or a few days before the deadline always looks good.

 

Otherwise it looks smart and covers all the bases. Only one thing, in the "Loss of extended notice pay" when i put my claim in i was due 12 weeks notice pay and in my new role i only get 4 weeks and therefore i claimed the difference. This would not apply to you and therefore you would only be due 4 weeks (perhaps only 1 depending on the contract) so rename that to "Loss of Notice Pay" and just put in 4 weeks worth.

[dj1971]

Thanks Ibruk,

 

Becky had suggested something similar so I will hold off submitting anything until ordered to do so by the judge.

 

I feel much better and more confident having these documents prepared and having gained some knowledge of the process thanks to yourself and Becky. When I first read through my former employers ET3 and grounds for resistance I felt panicked and thought "oh s--t what have I done"? Definitely feeling in a much better position now so a huge thank you to both if you.

 

Have taken on advice from yourself and Becky and decided to remove a claim for "injury to health" in my ET claim, so made initial enquiries about a claim for Personal Injuries through the civil courts. My only question would be if I decide to go ahead with a claim in the civil courts, what impact if any would that have on my ET claim, would I have to inform the ET?

 

Regards

DJ

[lbruk]

No, you dont need to inform them, however, my advice would be to do one thing at a time. I am pursuing a PI claim after my tribunal and its easy because all the documentation and evidence is ready for the solicitor, this very much sways them in terms of the amount of work that they do not have to do. You will find it reasonably hard to find a no win no fee solicitor for Stress at Work claims. This is because they are slightly more complicated that normal to win because of establishing cause.

 

I would go and concentrate on the tribunal, then do the PI - you have up to 3 years to bring a PI claim.

[becky2585]

Whilst what lbruk says may be partly true, you need to be aware that if you settle the ET claim, you will have to sign a COT3. Any good solicitor acting for a Respondent will put a clause in settling all claims which you're currently aware of - which means you'd potentially be waiving your right to claim. Not sure if it holds as much weight as under a Compromise Agreement (possibly not) but its something to consider.

 

Tactically, it may be worth starting the PI claim now. It's then possible to achieve a higher global settlement, settling both claims at once.

Edited August 29, 2012 by becky2585

[lbruk]

Its the way I have done mine, in the COT3 you can have a clause that states you can still bring a PI claim and use all the documentation relating to the tribunal. Its VERY shortsighted by the employer, or bad advice from the solicitor.

 

The only advantage I saw in this is company insurance. Insurance will cover them for PI claims, it usually does not include Employment Tribunal payouts. Like Becky says its about tactics, my way has been successful for me, it might not be for you.

[becky2585]

Its the way I have done mine, in the COT3 you can have a clause that states you can still bring a PI claim and use all the documentation relating to the tribunal. Its VERY shortsighted by the employer, or bad advice from the solicitor.

 

The only advantage I saw in this is company insurance. Insurance will cover them for PI claims, it usually does not include Employment Tribunal payouts. Like Becky says its about tactics, my way has been successful for me, it might not be for you.

 

I think you're being rather disingenuous.

 

As I said, any good solicitor would include a clause preventing any further claims in a COT3. It's even theoretically possible to waive future claims, if the wording is correct.

 

It is not bad advice for a solicitor to protect a company's interests with a clause like this - I would always include a clause waiving all claims in a COT3 settlement. Usually an unrepresented Claimant wouldn't pick up on it.

 

However, if I was acting for a Claimant, I wouldn't include the clause. The point is, solicitors act in their client's best interests - which would mean including such a clause on behalf of an employer. Waiving PI claims that you're aware of may not be effective, but the the point is, a global settlement can be achieved, meaning you don't have to then re-ignite litigation on essentially the same grounds. Its about tactics.

Edited August 29, 2012 by becky2585

[goboy]

My relative signed a COTS agreement for unpaid wages, acas standard clause said that the claimant agrees at the time of the agreement he is unaware of any other claims or proceedings that he has or may have against the respondent. Acas said that the clause only refers to the hear and now not to a winder time.

[lbruk]

I was talking about the employer I was fighting, and i know them to be very shortsighted. They had the option of settling everything, but they wouldn't, which is why I had the clause put into the COT3 agreement.

 

There are always options when in negotiation for a settlement, if indeed that is what you want. If you want your day in court and not be bound by confidentiality, then plough ahead and we'll help all we can.

 

Anyway I think we are getting a little ahead of ourselves as the CMD has not happened yet!

[dj1971]

Thanks everyone for your input, it is all valuable and very much appreciated.

 

I was not aware any possible future offer of settlement might exclude me from making further claims, so thanks for that Becky. It probably won't apply to me as I suspect my former employer will not offer anywhere near enough in a settlement agreement, if indeed they agree to conciliation or any form of negotiation at all.

 

This case is being run by the HR manager and they have taken certain incidents and actions of mine personally, so this has become their personal mission to discredit and destroy me. In fact they are so arrogant, they believe themselves to be totally in the right and completely justified in how they have treated. I apparently have been completely unjustified in taking action against them, or even in submitting a formal grievance back in March and my behaviour is just completely unreasonable.

 

I have made the decision to commence a claim for PI now as it will be months if not years before any settlement is finally agreed. My rational is to instruct a no win on fee solicitor, provide them with all the necessary/relevant information and then let them handle the case, while I concentrate on the ET case.

 

Made a list today of witnesses today. So now have list of issues, draft agenda and list of witnesses though most of them I hope will be called on behalf of the respondent. There are actually only two witnesses from my side and one of them is my GP.

 

Becky, I read in Naomi Cunninghams' book that I need to request permission to call a medical expert witness such as my gp, is this right and if so at what stage would I request that permission?

 

DJ

[becky2585]

I just want to clarify the settling of claims position.

 

An ACAS conciliator doesn't theoretically have the power to conciliate in relation to PI claims. Therefore, it can't be settled by agreement with ACAS.

 

What can happen, however, is that a clause is put into a COT3 "by agreement" that current PI claims are waived. Therefore, by signing the COT3, you would be agreeing to its terms and therefore agreeing to waive your right to bring a claim. So the PI claim wouldn't be legally "settled", it would be "waived" in return for a sum of money.

 

In terms of the medical expert - you have to request permission if you want the expert to give evidence at the final hearing in person. Medical reports can be included in the bundle if they already exist. If they don't and disability is in dispute, the judge may order at a CMD that a medical report be commissioned. It usually isn't necessary - most of the time only the disclosure of medical records will be required. If disability is still in dispute after your records and a "disability statement" have been provided, then you could look at a report.

[dj1971]

Becky,

 

I was actually referring to the ET case when discussing ACAS, thanks for the clarification if I did not make that clear.

 

A medical report does already exist and was written at the request of my former employers' HR department as a direct result of my formal grievance. Unfortunately the medical practitioner stated in the report that I am not disabled for the purposes of the equality act 2010. I contacted his secretary to ask where he was coming from, or on what basis he had made that assessment and he very kindly wrote back to me saying that the decision on whether or not I do qualify as disabled for the purposes of the act is a legal one. He went on to say that as he is not legally qualified, his opinion is just that, an opinion.

 

If I have understood you correctly then a medical report from my GP would be suffice and therefore no need for them to attend the hearing?

 

 

What is a disability statement?

DJ

[becky2585]

Yes that's a correct understanding!

 

A disability statement is only needed if ordered by the tribunal, and only if disability is in dispute. It's a witness statement which concentrates only on the effect your disability has on your daily activities. So you'd detail how every day tasks are affected, eg shopping, ironing, showering, anything which is a normal every day task to a non disabled person but which is more difficult with a disability.

[dj1971]

Thanks Becky.

 

Is there anything else I should be preparing for the CMD?

 

DJ

[becky2585]

Thanks Becky.

 

Is there anything else I should be preparing for the CMD?

 

DJ

 

I don't think so - they aren't as scary as they seem

[dj1971]

Becky/Ibruk,

 

I have received an email from the conciliator at ACAS and he has notified me of the respondent having made an offer to settle the case. The amount of the offer is insulting, but I did not expect any less from a first time offer.

 

In my response to the conciliator should I include a copy of my schedule of loss? My rational here is to let the respondent know their offer is pathetic and show them the real figures we are talking about here if they want to settle out of court.

 

Appreciate any thoughts/suggestions.

DJ

[becky2585]

Yes, but mark the schedule of loss as without prejudice at this stage.

[lbruk]

There is no harm in you putting in a counter-offer, and your schedule of loss will have this amount.

 

Make sure that all communications with ACAS or direct with the respondent are titles Without Prejedice

[becky2585]

ACAS correspondence needn't be marked without prejudice, as it's automatically confidential, but as lbruk says, anything to the respondent direct should be marked as such.

[altobelli]

You can complain to the CIPD, the regulatory body for HR, if you're unhappy with their performance, but be warned, its a long struggle, and in my opinion they tend to back HR staff.

[billybobyeeharrboy]

Hi DJ1971,

 

sorry to hear of your plight, it sounds uncannily like mine.

 

Question to IBRUK, are you serious you can pursue a PI claim as well as a ET claim? My ET Claim failed and has gone to appeal now however I would also like to raise a PI claim in addition to the failed ET claim. Can you see any problem in doing this? FYI my case is extremely similar to DJ's.

 

All the best

BB

[lbruk]

I am serious, its what i am doing - however mine was a settlement rather than a loss of the case.

[billybobyeeharrboy]

Sorry not meant to be condescending, its just I was advised that one can only have one bite of the cherry. Meaning that a second claim cannot be brought, however I now realise this is related to a protection from harassment claim in the county court.

Ie its one or the other. In hindsight I wish I had gone done that route as Employment tribunal does seem to favour the employer (who can do no wrong in the eyes of the law)

 

Anyhow, do you have any advice/ links as to how to get the ball rolling on a PPI claim against my ex-employer.

 

Kind regards

 

BB

[becky2585]

If you have a genuine work related stress claim, then yes - but you'd have to have an actual diagnosis, rather than be claiming for emotional distress or anything along those lines.

 

They aren't easy claims to prove.