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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)?
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.
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.
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.
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?
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!!
Hi NAS36609. So very sorry to hear your story.
I had a three year battle with solicitors in respect of my late mother’s estate.
I spent many hours every night researching law, trying in vain to stop the injustice of a sibling who sought to take control of the only asset left which was a home.
It was never about the money for me, it was about my younger sister who had lived there most of her life, we had all moved out leaving her to look after my father and mother as well as bring up her two children on her own.
She should by rights have been allowed to keep the property. She after my fathers death paid the mortgage, she had cared for him for many years as he battled with cancer, she then looked after my mother who was very ill. Unfortunately my mother had not made a will. And my sister had not sought to have her name added as paying the mortgage, all she had were payments into my mothers account from her account.
It became a battle between me and his solicitors, three years on they finally pulled out the big guns and took it to high court.
It was finally dealt with, his legal costs were taken from the estate before it was divided, there were four of us to inherit.
I was the hunted, always having to fend off the constant barrage of letters from his solicitor. They were playing games with me. I always fought my corner with no legal help. I could not afford any help.
Each time a new letter arrived I found a way to stop whatever it was they were attempting to do.
research and grit and determination kept me going. Injustice and greed were not going to destroy what my parents had taught me, They taught me honesty. Respect for others and that greed was never an excuse.
I like to think my mum and dad look down and say well done son you did all you could to make things right for your sister, it cost me my health, but it was never about money or possessions it was about greed from him.
Long story, condensed, but I wanted to show how I felt, how I was treated as an annoying flea, the legal system is not on the side of the poor or honest.it is for the rich manipulative and greedy.
I do not regret the endless sleepless nights, the feelings of dispair at always playing catch up. I did win. Not the property, not wealth as his legal costs put a massive dent on the final-share out.
I sleep very well at night. Wether he does now he has lost his family I don’t know?
I lost two sisters as they gave in to him and decided to roll over and take the money. I refused on the grounds it was morally wrong.
It was an evil thing to do against his own, he was the only one with any wealth amongst us,
Anyway the above is confused and not complete but it proves that law is an act, a performance, the legal people often work together regardless of the client, well the lesser client, money talks, and the rich often win.
I really hope you get closure in whatever way you decide.
I really feel for you. What happened to you should never be allowed to happen again.
Also to Mandy, a massive thank you for trying to help Nas36609 , You are both amazing people.
My heart goes out to you. Take care and you will be in my thoughts, () ()
Sorry to have read your story. I can feel your hopelessness. Being an empathetic person as you seem, I guess you would have had the hardest time of all involved, since there is no pain like fighting for someone else's happiness. I wish you were my bother. Your sister is lucky to have you!
Thank you Mandy, I tried my best for what was right. Money and wealth has no meaning for me apart from that it creates evil and sadness,
Thank you for your kind words Lonewarrior. I am sorry to hear of your own battle for justice, but I’m pleased to hear that you got a good outcome in the end. It certainly is very taxing to have to constantly fight such a battle, particularly when you just want what is fair and right.
You may have noticed that I have a quote on my profile background from George Orwell ‘The further a society drifts from the truth, the more it will hate those who speak it.’ I believe this is accurate and reflected in the suffering myself, you, and others have had to endure purely for telling the truth and wanting honesty. It’s appalling.
Whatever happens in my case, and whatever I lose, I agree with you in that at least I don’t have a guilty conscience and I know I tried my utmost to get justice. That is something that matters - I’m the bigger person than them. Further, I will continue to fight for reforms to the Employment Tribunal system, and other areas I see injustice, in the hope that I can help prevent others from experiencing what I have.
My very best wishes to you. Clearly you are amazing too given your own experience! ()