Discrimination, temporarily gone

It would help to have more information about this. In which city will the hearing be held, for example?

This is hugely relevant for me since I am on my way to trying to prove in the Employment Tribunal that I'm disabled and that my employer should have known about it.

I find it amazing that I had to endure several colleagues punishing me and making fun of me because of my autistic traits, and now the employer is saying that I should not be protected because they claim that I'm not disabled, which would essentially make all the mistreatment ok, even though they mistreated me specifically because of my condition.

I just wish that they would add neurodiversity to the list of protected characteristics, instead of including it within disability, thereby failing to protect people on the spectrum who don't quite fit the definition of disabled. The House of Lords put out a report suggesting this: https://publications.parliament.uk/pa/ld201516/ldselect/ldeqact/117/117.pdf (paragraph 57)

There's a reason why people on the spectrum have the largest unemployment rate out of all disabled people. Something needs to be done about all the bullying and unfair treatment. Employers shouldn't be allowed to seek the easy way out by claiming someone isn't disabled.

Please post here about the progress of the hearing. I'm sure I'm not the only one who will follow it with great interest.

Employers will always try and claim that you aren’t disabled in this sort of scenario, because if it is proved it immediately makes a claim of disability discrimination unviable.

As far as I can tell though, given the very traits that are required for a diagnosis of Autism, anyone who is autistic would meet the criteria for a disability under the Equality Act. I certainly had no problem proving to the Employment Tribunal my Asperger’s, depression and anxiety were all disabilities, despite my employer initially arguing that the latter two were not. Therefore, could you possibly explain who on the spectrum you think don’t quite fit the current definition of disability (I just want to understand and help you if I can)?

Thanks for the reply.

I have no idea about the basis for the employer's claim of no disability. Apparently, at this point, the burden of proof is on me and they had me send in an impact statement, in which I claimed two disabilities, Aspergers and a stress-related condition (more severe than just the Aspergers alone) caused by a combination of the Aspergers and the way other people at work treated me on a daily basis. I submitted a statement of several pages describing how the Aspergers makes my life difficult.

I haven't heard back from them yet, and, like you, I am very curious as to how they are going to try to say I'm not disabled. They are apparently even claiming that Aspergers is not a disability, since they already know about my diagnosis.

Because they have said that I'm not disabled, one of my arguments is that even though I didn't disclose my disability right at the beginning of my employment (I hadn't even been diagnosed by that time), they didn't take any notice when I did disclose my disability. They failed to provide reasonable adjustments multiple times (even when they asked me beforehand what reasonable adjustments I requested, and then promised me that they would do what I asked), and now they are saying they never believed I was disabled anyway, so they had no obligation to provide reasonable adjustments. Once I disclosed my disablity, the perception should have been that I was disabled, and the way they treated me should reflected my status as a person with a protected characteristic. They are not medical doctors, and had no expertise whatsoever to make a claim regarding whether I was disabled or not, so I should have been protected as someone perceived to be disabled, until it was proved otherwise.

The funny thing is that their response is full of hypotheticals: "we don't believe there is a disability, but if the tribunal finds that there is a disability, it doesn't count because the employee didn't disclose it on the employment application form, but if the tribunal does find that it was disclosed, we deny everything the employee claims anyway".

If they think they didn't do anything wrong, then why are they so adamant to claim there was no disability, especially when the best scenario for them would be to say that they acknowledge the disability and prove that they did everything right with regard to reasonable adjustments, etc.? It seems as if they are admitting that all did not go properly when their first reaction is to claim no disability, especially when their behaviour after I disclosed the disability suggested very strongly that they did belive there was a disability.

I just think it's disgusting that 1) what they put me through would be ok if they can convince the judge that I have no disability, and 2) they can trick someone into thinking that they acknowledge the disability, and promise reasonable adjustments and then withdraw them at the last minute, and that would be ok as long as they can convince the judge that I have no disability. I think the laws need to be changed so that bullying of any kind is illegal. Nobody should be treated the way they treated me, disabled or not.

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If my claim was reinstated then that would mean it would go to a full Employment Tribunal hearing of my initial complaints. I was informed today however that the Employment Tribunal have struck out my claim, so that won’t be happening...

Both myself, the solicitors for both sides and one of my employer’s directors signed the settlement agreement. We were supposed to have a discussion, followed by an apology, after which I would sign a certificate confirming I would not claim breach of contract/personal injury etc. arising out of the apology, and once the signed certificate was received by my employer’s solicitors they would pay me the agreed sum of money.

However, as the discussion and apology didn’t take place due to the director of my employer refusing to comply with the terms set out in the agreement, that meant I couldn’t sign the certificate to get the money because then I wouldn’t be able to claim breach of contract against the other parts of the agreement. In effect, the employer would reduce my settlement agreement to a payment of money only, even though that’s not what was agreed and not what was most important to me.

It is realistically impossible to make sure you don’t end up in the same scenario, other than refusing to accept any settlement agreement. That opens you up to other problems though, as above. If you agreed only for a payment of money, and it wasn’t paid, then you could easily claim breach of contract but this would mean further legal proceedings and more legal costs to pay which may ultimately render the settlement sum pointless. If there are any other terms then you’re pretty stuck because a civil court can’t put a value on things like a discussion or apology, so you would get nominal damages at most (a very small sum of money).

I realise given the above that you may wonder why I ever settled my case. Well, that was 1)because my mum has serious health problems, was unwell at the time of the hearing, and I was very concerned that the 5 days cross examination of me then her might literally kill her, and 2) my solicitor had advised me that if the settlement agreement was not complied with then I could bring my claims back before the Tribunal (which turned out to not exactly be true, unfortunately for me). I could claim negligence against my solicitor for this, but I know it wasn’t done deliberately and I don’t have the energy for such a claim.

I will now look at other options including breach of contract, my obligations under my settlement agreement and trying to somehow agree with my employer to have the discussion and apology as detailed in my settlement agreement. What a mess!!

And "reinstate" - does that mean it is all taken back to the start as if the settlement never happened?

Oh, gash! I see the problem. It becomes a completely different issue, not covered by the Tribunal. 
I am terribly sorry for what you have been going through, and still is. if there would be anything I could do to help, then I sure would.

May I ask how they could just "not agree" in the end? What can others do to make sure to not end up the same? 

You can’t argue a settlement simply isn’t reasonable - once you’ve signed it it’s legally binding. My former employer’s behaviour in not complying with it certainly isn’t reasonable, but this is a matter for a civil court as opposed to an Employment Tribunal. Therefore, if I try to get my claims before the Employment Tribunal reinstated, they could argue there are no prospects of success and as such my behaviour is unreasonable and they should be awarded costs.

It’s all very confusing I know - I did say my experienced solicitor hadn’t come across such a scenario before!

The link is saying that if you choose to take a case to a hearing and are awarded less by the Employment Tribunal than you were previously offered in settlement, then your employer has a basis for arguing for costs against you. It doesn’t mean they will, or it will be awarded, but it is a risk. Further, the Employment Tribunal is known to have ruled that way in the past.

I could only claim back legal costs if I made a breach of contract claim in the civil courts. Further, I am not ‘on the safe side’ unfortunately - even if I claimed breach of contract I wouldn’t get more in money from the settlement than I have paid in legal costs and the rest of the agreement cannot be enforced. Therefore, my two year Employment Tribunal proceedings would leave me with only lost money and wasted energy. That’s why I want my claims reinstated, but that’s a very difficult thing to get.

I could claim costs against them in a civil court, but not in the Employment Tribunal. Because breach of contract is considered a civil matter, not one for the Employment Tribunal, it is rare to ask for reinstatement of a claim due to non-compliance with a settlement agreement. That in itself can be reason the my former employer to argue for costs against me:

‘A claim or defence to a claim made in the proceedings had no reasonable prospect of success.’

The strength of the initial claims brought becomes irrelevant unfortunately.

Costs awards are rare in general, but the Employment Tribunal has form for awarding costs when an employee is awarded less than the Tribunal than offered in settlement, and where claims have little to no prospects of succes but are brought anyway. Also, you have to remember that the vast majority of cases settle, and therefore there would never be the opportunity for costs to be awarded in most cases.

If the employer did not comply with the terms of the settlement agreement, then they are in the wrong, and it should be possible to claim costs against them. If just one clause in the settlement agreement was causing a problem, then the rest of the settlement agreement should have been followed, and there should have been a clause in the agreement stating this.

There was a case in which the self-represented claimant was ordered to pay the legal costs of the employer, but that was because she didn't properly present her information in a detailed way and because they wasn't prepared for the hearings. https://www.bpe.co.uk/why-bpe/blog/2016/12/when-employers-bite-back-costs-awards-against-claimants/

According to that webpage, it is very rare otherwise for the employer to be able to claim costs, especially from a claimant with no legal representation.

From what I have heard and read, the tribunal can see through all the tricks that employers, and their legal representatives, try to play in tribunal cases, so I would say that you should continue to fight them, and, given that they didn't live up to the agreement they already made, you should add that to your claim as well. That's what I would do, anyway.

Thank you for posting those links. It is very interesting information.
Reading it, though, I still can't see how you would end up paying the respondents. After all, you did accept the settlement, while instead they did not. 

Unless you can afford to pay the employer’s costs, or if the employer hasn’t written threatening costs, then sadly yes.

You also have an obligation to engage in settlement discussions, whether you want to or not, because not doing so can be regarded as unreasonable behaviour, and therefore costs applications can be made against you.

This page may help explain regarding costs awards:

https://www.bpe.co.uk/why-bpe/blog/2016/12/when-employers-bite-back-costs-awards-against-claimants/

Note this in particular: ‘It is not uncommon to hear a claimant utter the words “it’s not about the money, I want my day in court”. A possible example of unreasonable conduct by a party is the rejection of a reasonable offer to settle a claim prior to a Tribunal hearing. Unfortunately for some claimants, the much stretched and publicly funded Tribunal system may not take kindly to such an approach and any unnecessary hearings may result in a costs award being made against a party.’

Certainly in a case like mine, the Employment Tribunal would likely have considered it unreasonable for me to have caused them to have to sit through 10 days of hearing, at public expense, taking up the Judge’s and two lay member’s time, if their ultimate award was less than I had been offered in settlement prior to the hearing. 

Whilst I can understand the Employment Tribunal trying to reduce the number of claims they have to hear through settlements (the whole system probably wouldn’t function otherwise), the system as it currently stands is not at all fair to Claimants as far as I’m concerned, and is open to abuse by employers. That’s why I continue to fight.

Thank you for being kind to reply. So what you are basically saying is that one have to accept a settlement unless one can forsee that the case would end up giving more if winning the case? 

It’s not just a threat in this case unfortunately - just read through the Employment Tribunal rulings where costs were awarded against the Claimant. The Employment Tribunal absolutely do consider it a waste of their time, and further public money, if you take a case to hearing and are awarded less than you were offered in settlement. Sadly they do not take into account things other than money.

This is why so very many cases settle (and you can look at the figures regarding that too) - it can be financially crippling, or highly risky, to do anything else.

Thinking about it again. I think it is just another threat. The tribunal can't agree to the respondent that you waisted tribunal time by not accepting the settlement. It must be just to scare you.

I wish I could help you out. You are in an awful situation. 

Ah, well this is one area where the system gets very silly...

Usually, you are correct - costs are not awarded to either party unless there is particularly unreasonable behaviour.

However, if you choose to take a case to a hearing rather than accepting a sum of money in settlement, and the Employment Tribunal awards you less than the monetary sum offered, then the employer can absolutely argue for costs against you as your behaviour was ‘unreasonable’ in terms of wasting their/the Employment Tribunal’s time and money in holding a hearing that awarded no more than had already been offered.

See how that favour’s wealthy employers? - Better for them to shut someone up, keep the matter private (thus protecting their reputation), and not have to admit wrongdoing, with what for them is a small sum of money, than have the matter dragged out in public and possibly a ruling that they broke the law. But with often already high legal costs, the threat of costs awards against them and the Employment Tribunal’s preference for cases to settle, a Claimant is often left with no choice in the matter. So, no rulings against employers occur.

Then, as in my current situation, if your employer fails to comply with your agreement, you could be pretty much screwed!

Further, in my current situation, because it is so unusual to ask for reinstatement of a settled claim, the prospects could be argued to be poor and on that basis alone the employer in my case could argue that my actions in pursuing such a matter are unreasonable and therefore they have a basis to apply for costs against me.

I hope I’ve explained that okay - it’s not the easiest thing to do without going on and on - but if you would like any further explanation please just let me know.

I would say you probably have a good chance to win, since you now had the full hearing. Or does reserved mean something special? (sorry, english not my primary language)

Let's hope you win!

I am so sorry to hear your story. I have been worried that something like it can happen.

Paying their legal expenses should only happen if you did not have a good case to start with.

I will try (can’t be done in a few sentences though):

I brought claims of unfair dismissal and disability discrimination against my former employer. We engaged in mediation early on but the case wasn’t settled. My employer failed to properly comply with Tribunal Orders on numerous occasions from that point onwards, continuously harassed me to settle and threatened me with an application for costs against me.

The matter proceeded to hearing, which was listed for 10 days. Due to my mother’s health at the time (not my own wishes), I settled on the second day of the hearing and my claims were stayed (as opposed to being withdrawn/dismissed) to allow time for two parts of the settlement agreement to be complied with.

Due to disagreement regarding a clause in the settlement agreement, the terms were not complied with by my employer. Both parties engaged in discussions for months to try and resolve the matter, but ultimately my employer refused to do what they had originally agreed to under any circumstances.

I was advised that a claim for breach of contract would not get compliance with the terms of the agreement because specific performance couldn’t be ordered. As such, I didn’t do that and instead sought to reinstate my live claim before the Tribunal. The Tribunal weren’t initially sure they had jurisdiction to hear such an application, though they did latterly decide following a hearing that they did.

I recently had a hearing regarding the matter, but I do not have a judgement yet (it was reserved). If my claims are dismissed, then in effect despite a settlement agreement I am left with nothing and worse, the possibility of a costs award against me, despite having good prospects for my claims throughout. I have also already spent more money than the agreed settlement sum on legal costs, so there’s no point demanding the money and running! Besides, I never wanted their money...

In general with my case, the whole system appears to have benefited the employer and punished myself, though it is my employer who broke the law. That doesn’t seem right to me at all.

Would you please, tell the big picture to start with (a few sentences) then I can specify?

Oh, it would be extremely long for me to explain the whole matter, so what do you want to know about most - how the system can be manipulated, or my unfortunate situation? (Though the two do overlap somewhat given that I only know about the flaws in the system through my own experiences with it).

My impact statement is several pages long. I listed all the various things I have difficulty with, including forming social relationships, making eye contact, reading body language, making phone calls, difficulty remembering faces and names, difficulty handling conflict, etc. Oh yeah, I also said that I have trouble with limiting the amount of detail in my written communication (which explains why the document is so long). I quoted the Employment Statutory Code of Practice put out by the EHRC and explained how my Line Manager utterly failed to act properly after receiving my disclosure, because my illness was revealed to several of my colleagues without my permission, and then they all started mocking me for it (all behind my back, of course, which I learned from a Subject Access Request). One of my colleagues actually said, as a direct consequece of being told about my illness, that my employment should be terminated because of the amount of stress I was experiencing, and that's what essentially ended up happening. The reason I was so stressed in the first place is because of the way that colleague and others were treating me. My Line Manager used my disclosure as "proof" that I could not handle the workload and petitioned the higher ups to get rid of me.

I have doctor's notes and all sorts of documentation, so I think I'm set in that regard.

My impact statement is several pages long. I listed all the various things I have difficulty with, including forming social relationships, making eye contact, reading body language, making phone calls, difficulty remembering faces and names, difficulty handling conflict, etc. Oh yeah, I also said that I have trouble with limiting the amount of detail in my written communication (which explains why the document is so long). I quoted the Employment Statutory Code of Practice put out by the EHRC and explained how my Line Manager utterly failed to act properly after receiving my disclosure, because my illness was revealed to several of my colleagues without my permission, and then they all started mocking me for it (all behind my back, of course, which I learned from a Subject Access Request). One of my colleagues actually said, as a direct consequece of being told about my illness, that my employment should be terminated because of the amount of stress I was experiencing, and that's what essentially ended up happening. The reason I was so stressed in the first place is because of the way that colleague and others were treating me. My Line Manager used my disclosure as "proof" that I could not handle the workload and petitioned the higher ups to get rid of me.

I have doctor's notes and all sorts of documentation, so I think I'm set in that regard.