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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)?
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.
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?
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:
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 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.
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.
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?
And "reinstate" - does that mean it is all taken back to the start as if the settlement never happened?
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!!
But I can't stop feeling terribly bad about your situation. It really hurts me to read your story. I am gonna continue hoping that it will all be ok for you in the end.