Discrimination, temporarily gone

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.

That last paragraf of yours makes me want to read more... please?

Have you read the response submitted by the employer in full? That should detail their basis for claiming you are not disabled.

My disability impact statement was only 1 page long and covered both my depression and anxiety (as those were the disputed disabilities), but that was enough alongside medical evidence to prove disability. If you prove that though, you will of course still have to prove that the employer knew or should have known about your disabilities.

Your employer won’t get far claiming Asperger’s isn’t a disability - the Employment Tribunal is fully aware that it is, to the extent that they issued specific guidance regarding adjusting for autism in hearings to the parties in my case just prior to the hearing (found at this link: http://www.theadvocatesgateway.org/images/toolkits/3-planning-to-question-someone-with-an-autism-spectrum-disorder-including-asperger-syndrome-2016.pdf).

The part of their response you have quoted is purely their legal argument to try and get themselves out of the claims - don’t worry too much about this. You don’t have to disclose your disability on any forms at work at any time - I didn’t disclose my Asperger’s until a year into my employment - but this may affect the date you are able to argue your employer had knowledge of your disability from.

I agree wholeheartedly with your conclusion, but often although employers try certain arguments, the judges do see through them, so it’s not often that an employer in the circumstances you describe actually does succeed in arguing that the employee had no disability.

I myself have other major concerns regarding the Employment Tribunal system, and it’s ability to be manipulated by employers, especially those with lots of money. I’m still fighting on that front, but then I did find myself in a most unfortunate situation regarding my case, which my solicitor had never seen in his 25 years practising employment law...

I pressed the button "edit" ;)

You are right it is lifelong. But the respondents will do whatever they can to delete your claim. You need to book an appointment with the doctor asap to get some document, I would say. How have you described it in the Impact Statement? Can you tell the big parts, please? Would be very interesting.

Was that there from the beginning? I swear I didn't see it lol.

ASD is a lifelong condition, so even though it wasn't diagnosed yet, I had the disability. My complaint regards the way I was treated after my disclosure.

I don't think I need to show I had the disability before I started work anyway, because lots of people develop disabilities after they have been working for an employer for several years, and they are protected under the law.

Address posted above along with the time and dates.