Discrimination paid off with money to leave job

I quite agree with you Trainspotter, and in my case the employer has not only managed to exploit the Employment Tribunal system, but that of the civil courts too, in order to not comply with our settlement agreement. It’s a complete nonsense and a gross injustice. 

I’m still exploring ways to resolve my situation, though I’ve really run out of money for legal costs, I’m facing a costs award against me, and the law could not enforce parts of my settlement agreement. I still want the employer to learn a lesson and apologise to me though, which were my only goals from the outset of my claim. 

It’s all so frustrating and unfair, after all we are not the ones who should be getting punished!

NAS36609 said:

Without prejudice discussions can be disclosed to the Tribunal when a costs application is made, and this can be the decision of the party disclosing them. I know this through very recent personal experience.

That is exactly the advice I was given.  And this, on top of the zero pounds I could receive if I did go to Tribunal and lost, or if I was awarded a sum less than that offered and, in either case costs awarded against me is not a risk I am prepared to take.  I have my principles, and it feels like betraying my cause, but I have to think practicalities.

I did not ask for this result at all. The sum has been raised as I kept rejecting the previous one.  And to get offered a sum so I can be dismissed from my job  when I feel I have done nothing wrong and am the aggrieved party is a very great injustice in my opinion.  What I had asked for is acknowledgement that the employer had done wrong - and the CEO has admitted this in a 'protected conversation', and some nominal damages to show they are truly sorry.  I do not know where the 'buying my job' from me has come from.  And as such with all this, as originally stated, the employer then becomes free to do the same thing to someone else in order to dismiss them unlawfully with no stain on their character (or in the case of my employer, they will be able to bid for the contract to the commissioners appearing to treat their employees well).

I believe this to be similar to cases in care homes where the residents have been abused and offered some payment to move elsewhere when someone complained.  Then the home is able to abuse more residents.

I cannot for the life of me think this is how the law was intended to operate.  Where anyone who lodges a complaint, however justified, is simply paid off in order for the employer to carry on with the same discrimination of disabled people with absolutely no stain on their business.

As Mr Bumble said 'The law's a bottom' (or was it 'The law's a donkey'!)  Or as Ian Hislop said 'if this is justice, then I'm a banana'.

Well make sure that the settlement offers are marked ‘without prejudice’ and not ‘without prejudice save as to costs’ and bear in mind the exceptions to the rule, thus allowing disclosure of without prejudice discussions.

There are numerous cases I could cite, here are just a few:

In Kopel v Safeway Stores Plc, the claimant refused to consider a settlement offer. This act was subsequently deemed to be unreasonable conduct on the grounds that, among other factors, the claimant had not entered into any meaningful settlement negotiations.

In Power v Panasonic (UK) Ltd UKEAT/0439/04, after a seven day hearing, the Claimant’s complaints of direct discrimination, disability discrimination, unfair dismissal and breach of contract were upheld by an Employment Tribunal. The Claimant was awarded compensation including interest of £5,855.11. However, the same Employment Tribunal ordered the Claimant to pay the Respondent's costs of £10,000. Prior to the hearing, the Respondent made an offer of £10,000 to settle the claims. The offer was refused out of hand by the Claimant and without any consideration as to the merits of the claim. Sometime after this, the offer was increased to £25,000. That offer was also rejected out of hand. The EAT upheld the Employment Tribunal's decision to award costs and the Tribunal's findings that the Claimant had failed to enter into meaningful negotiations to settle her claims such that the need for a seven day hearing could have been avoided, and that the Claimant was guilty of unreasonable conduct.

In Hooper v Sherborne School EAT/1375/08, the EAT upheld an Employment Tribunal order for a Claimant to pay £7,000 towards the Respondent's costs which amounted to £25,000. The EAT stated that the Respondent had made an offer of £5,000 to settle the Claimant’s claim at an early stage, and the Claimant's rejection of that offer were factors that the Employment Tribunal was entitled to take into account in awarding costs.

In Vaughan v London Borough of Lewisham and others, the Employment Appeal Tribunal (EAT) approved the employment tribunal decision to require a claimant to pay around £60,000 in costs. This claimant had turned down a £95,000 settlement offer.

The offers in the above cases were not dealt with by the Tribunal.

Yes, I have seen that before. It's a site for employers who have been taken to a tribunal. However, an ACAS representative has assured me that any settlement offers are without prejudice. That means that they are specifically forbidden to be disclosed to the tribunal without the agreement of both parties. I also do not see any examples cited in the above referenced information of a claimant who has had to pay costs after rejecting a reasonable offer. Perhaps those are offers that are dealt with by the tribunal itself, because the tribunal wouldn't have access to the details of any offer otherwise.

DragonCat16 said:

If a claimant has a reasonable claim with sufficient detail and documented evidence, sticks to the deadlines and such, and is asking for a reasonable amount of money that corresponds to the amount they have lost with an additional amount for hurt feelings in the case of discrimination, their conduct cannot be said to be unreasonable, and so should not be ordered to pay costs. In any event, if the claimant wins, they would never be ordered to pay costs, other than something like a photocopying fee for preparing the bundle.

That sounds right to the rest of the world, but it’s not how Employment Tribunals work I’m afraid. It is absolutely not guaranteed that if you win then you would never be ordered to pay costs, indeed exactly this has happened in previous cases. You can still have acted unreasonably in the Tribunal’s eyes, for example:

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

I tried to find the article again but it has been taken down. I thought it said that it was the only case where an unrepresented claimant was ordered to pay costs, but, given that the article is no longer active, I'm not absolutely certain. It is certainly not very common for costs to be awarded to the respondent, and it is only in the case of a frivolous claim or unreasonable conduct during the proceedings. I don't think it would be considered fair for the claimant to be expected to know beforehand what the outcome of the case would be. If someone could predict something like that, then why do tribunals take so long?

If a claimant has a reasonable claim with sufficient detail and documented evidence, sticks to the deadlines and such, and is asking for a reasonable amount of money that corresponds to the amount they have lost with an additional amount for hurt feelings in the case of discrimination, their conduct cannot be said to be unreasonable, and so should not be ordered to pay costs. In any event, if the claimant wins, they would never be ordered to pay costs, other than something like a photocopying fee for preparing the bundle.

DragonCat16 said:

Without prejudice is a specific legal term meaning the discussions are not disclosed and cannot be used in any legal setting unless both parties agree to it.

Like many legal things, there are exceptions to that rule (for example, see the part about exceptions here: https://www.mills-reeve.com/without-prejudice-privelege-update/). In my case, the Respondent disclosed their without prejudice offers when making their costs application. I did not agree to this and indeed couldn’t have done so as I didn’t know they were going to make the costs application (though I suspected it). They are allowed to do this because it won’t prejudice a hearing as the matter is already settled (though there are issues with the settlement).

Likewise, the Employment Tribunal have seen copies of my solicitors’ attendance notes, my settlement agreement and without prejudice discussions that followed it as they were all relevant evidence for a hearing that followed the initial settlement. Not once when any of this was disclosed did one party ask the other if it could be disclosed, so my original point stands.

Further, solicitors often use "without prejudice save as to costs", which means the discussions can be disclosed in relation to a costs application.

NAS36609 said:

Without prejudice discussions can be disclosed to the Tribunal when a costs application is made, and this can be the decision of the party disclosing them. I know this through very recent personal experience.

Without prejudice is a specific legal term meaning the discussions are not disclosed and cannot be used in any legal setting unless both parties agree to it. If some settlement discussions were used in a costs application, then both parties must have agreed to it.

DragonCat16 said:

There has been only one Tribunal case in the UK in which an unrepresented claimant has been required to pay the legal costs of the employer, and that was when she engaged in unreasonable behaviour by not being prepared for hearings or following the judgements, etc.

Where is that figure from? Anyhow, remember that in relation to most claims that are brought, the employer can never apply for costs as either the claim is settled or withdrawn, meaning that there would never be many costs awards.

I would agree that a Claimant who isn’t legally represented is probably less likely to get costs awarded against them, but I don’t know if Trainspotter is legally represented or not.

In relation to settlements, the Tribunal has previously ruled that certain behaviours from Claimants are unreasonable, and this has led to adverse costs awards in some cases, so it does have to be taken into account.

I think the advice given to Trainspotter was likely that he could end up with nothing if the matter went to Tribunal, as this is always a risk in any case (that the Tribunal may not uphold your claims and therefore award you nothing).

With regards to the offer being fair, this is a separate issue whereby the employer can end up with grounds to claim their costs against the Claimant if an offer is rejected and then the Claimant is awarded less by the Tribunal (as explained in my comment above). Without prejudice discussions can be disclosed to the Tribunal when a costs application is made, and this can be the decision of the party disclosing them. I know this through very recent personal experience.

Going to Tribunal will only cost you nothing if you do not use legal representation and you do not get costs awarded against you, so all decisions about what to do with a settlement offer have to be weighed up in against what you may end up getting out of an actual hearing.

NAS36609 said:

settlements are encouraged by the Employment Tribunal and if you are awarded less money by the Tribunal in a hearing than you have been offered in settlement then the employer can validly claim their costs against you on grounds that it was unreasonable of you to have not accepted their settlement offer

In all my discussions with ACAS, it was made clear to me that any settlement discussions made through ACAS or otherwise are without prejudice, and therefore cannot even be mentioned in a tribunal, let alone be used to demand that you pay costs.

There has been only one Tribunal case in the UK in which an unrepresented claimant has been required to pay the legal costs of the employer, and that was when she engaged in unreasonable behaviour by not being prepared for hearings or following the judgements, etc.

Trainspotter said:

I have had legal advice  to  accept the offer as otherwise I could end up with nothing if the tribunal thought the offer was fair, a chance I am not prepared to take.

I do not believe this is correct. The discussions and the resulting offer made to you were presumably on a without prejudice basis (which is why you have been told that conversation was "protected"), meaning that neither you nor your employer can bring this up at any point in a tribunal, unless both parties agree to it. Thus, there is no way a tribunal will have an opportunity to say that the offer was fair and award you nothing. I don't know who gave you this advice (i.e. whether they were actually a legal professional specialising in employment law) but, from my own experience with the tribunal, they are not correct in saying this. If the union said this, then I think what they meant was that the fact that you have received an offer means that they are under no obligation to provide you with representation in the tribunal, which I think makes unions completely useless (mine was like that as well).

Taking the matter to a tribunal would put your employer under a microscope in the public eye, which is what they deserve, but it will also take its toll on you. Also, initiating a trbunal case may prompt your employer to offer you a better settlement.

Please do not accept the offer before really thinking about it. You have to add up how much you will have lost (2.5 years of salary plus how much pension you will lose for having to retire early, assuming to live to a certain age plus extra money for hurt feelings, etc.). Does that amount compare with how much you are being offered? If not, don't accept the offer.

If you go to a tribunal, it will cost you nothing, because they have abolished the fees. Also. if you decide to stay in your job, they will have a difficult time getting rid of you. Please consider this, not just for yourself, but for those who will come after you.

I have got a bigger payment offer than originally offered, but seems as though it is really the final offer. I even suggested a much lower payment and keep my job but was advised not to go down that route as the employer could then sack me on some trumped up charge and I would be only able to get a maximum of ten thousand for unfair dismissal. I have a reconsideration for Pip in at the moment so a slight possibility there. I might of course get a job elsewhere but with few rights since employers can dismiss an employee in the first two years with no reason. And there is a possibility of a bit of writing articles for pocket money. And there is always a chance of winning the premium bonds, but I wouldn't win the lottery for the reason I don't buy a ticket. 

I have got a bigger payment offer than originally offered, but it now seems as though it is really the final offer. I even suggested a much lower payment and keep my job but was advised not to go down that route as the employer could then sack me on some trumped up charge and I would be only able to get a maximum of ten thousand for unfair dismissal. I have a reconsideration for Pip in at the moment so a slight possibility there. I might of course get a job elsewhere but with few rights since employers can dismiss an employee in the first two years with no reason. And there is a possibility of a bit of writing articles for pocket money. And there is always a chance of winning the premium bonds, but I wouldn't win the lottery for the reason I don't buy a ticket. 

I think your comment was supposed to be in reply to Trainspotter...

Once your income drops below a certain amount you will be able to claim benefits. If you receive PIP you will get a disability top up too so things aren't as grim as they seem now. 

If you haven't applied for PIP yet? it isn't means tested so you could work you way through the system now in preparation for when your income drops.

Trainspotter said:

My point about this post is that an employer can break laws regarding discrimination,  pay a sum of money in an out of court settlement, and then be free to do the same again. The employer keeps away from bad publicity, is free to do the same to others while the person who suffered the discrimination suffers for the rest of  their life.

You are absolutely correct here Trainspotter, and that’s why I think the Employment Tribunal system favours employers - settlements are encouraged by the Employment Tribunal and if you are awarded less money by the Tribunal in a hearing than you have been offered in settlement then the employer can validly claim their costs against you on grounds that it was unreasonable of you to have not accepted their settlement offer. So unless you are very rich and can afford to pay your and your employer’s costs in order to go through with the hearing, you are in effect forced to settle your claim, which in turn means it is not ruled that the employer broke the law and the matter is kept private due to confidentiality clauses. Therefore, it’s simple for an employer to wriggle out of any claim - they just have to offer enough money (which often isn’t a problem for huge companies). 

I think it’s totally wrong that the Employment Tribunal doesn’t consider that the Claimant may want something other than money, such as an apology, a hearing, or a ruling by the Tribunal, but that’s the way it is. This is all why you have been advised to accept the offer.

In terms of the offer itself, the employer will always say it’s their final offer and they won’t go any higher, but invariably this isn’t true if you have a strong case against them and they want the matter kept private. How close is it to your hearing? - My employer suddenly offered another £10,000 in the week prior to my hearing, even though my counter offer had been on the table for a month prior, just because they didn’t want me going through with the hearing. I would suggest pushing them all the way to the hearing, so they are more desperate to settle, but remain mindful of whether they offer is reasonable in terms of what you would expect to be awarded for your claim and if they meet a counter offer from you then it will likely be considered unreasonable by the Tribunal if you don’t accept it. For now though, if you’re not happy with their offer then why not make a counter offer - even if you don’t think they will meet it, it goes to prove that you have engaged in settlement discussions (something else the Tribunal considers the Claimant must do in order to behave reasonably...)

Yes, say that you only have two and a half years before retirement and the sum will not maintain you for this time. It needs to be bigger.

Try and negotiate a bigger playoff.  

And leave!

I have read your thread carefully.

It's unfair that you have to go through all this suffering. And for several years.

It makes people miserable.

I do not know what to advice but I would like to say - No matter what you decide to do, I hope that your life will become better.

Maybe you would be able get Employment and Support Allowance, Personal Independence Payment, Housing Benefit and Council Tax Reduction?