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went to c top lawyer re discrimination case....very disappointed. anyone else had same experience or want to share advice?

30 replies

wotuc · 22/02/2012 00:28

went to c top lawyer a couple of days ago as I believe I have a case. this lawyer kept telling me all the risks and putting me off making a a case telling me it would be cheaper if I fight myself.....er well why would I bother coming to them if that was the case????? the only reason why i wanted to take further in legal sense is that I had exhausted all I could do myself. I have wasted hundreds of pounds on this pre consultation before it reaches a case. Even though my session did not last full hour I got charged for that time anyway. and to top it of felt like lawyer was bored of what I was saying and wanted to go home. So upset and shell shocked by this session

OP posts:
dressmeplease · 22/02/2012 00:32

at the risk of sounding silly, DO you have a case?

emsyj · 22/02/2012 00:34

If you're already disappointed to have 'wasted' hundreds on this advice, how upset do you think you would be if you pursued a claim and lost, then had to pay a legal bill running to (tens of) thousands, all for nothing?

If you don't believe the advice, get a second opinion, but do understand that it is part of a lawyer's job to advise whether litigation is likely to succeed or not and to tell you the risks. If what you want is for someone to hold your hand and tell you what a terrible time you've had and what arseholes your former employers are/were, you need a good friend/therapist, not a lawyer. It's a lawyer's job to advise you fully, openly and honestly and to give you a realistic appraisal of the merits of your claim - not to just agree with you and tell you that you have a strong case if you don't.

outofbodyexperience · 22/02/2012 00:40

No idea whether we've had the same experience as you don't say what your experience was. I assume you mean re discrimination.

If you merely mean advice about the lawyer, I would strongly suggest not attempting to pursue a case when a 'top lawyer' has advised you not to. For your own financial health and sanity's sake.

Hth.

WorriedBetty · 22/02/2012 00:46

If your case is finely balanced or seems finely balanced without really understanding the detail, then a lot of solicitors will estimate low risk. I suggest reading the advice about stating your case simply here and once you have case arguments neatly contact a barrister direct and ask them to look at the papers - it might cost you a couple of hundred pounds, but a barrister's job is to present any case to the best of his/her ability on instruction. That will give you a better idea of prospects.

I had a case that was reviewed by solicitors as below 51% chance of winning, but a barrister agreed to take it on (as for 'direct access') and her opinion was much higher.

The page reference above gives loads of tips about presenting a case yourself - above ALL get the admin straight.. and read more tips there to get yourself prepared - it will save money when you do have to pay for legal advice.

Also check your house insurance - if its employment discrimination they may pay if dismissal/constructive dismissal occurs - but check first by reading the policy before you act.

wotuc · 22/02/2012 00:48

dressmeplease: think i have a case from all the research i've done online and what i have read of law

emsyj: understand wot u are saying if i lost case n more money but i felt neither here nor there. had to sign something that said if i do come back after this consultation, they do think i have case as they have assessed so that legal fees dont cancel out settlement etc. but the lawyer was teling me something else i.e. settlement would cancel out costs. i understand they have to err on side of caution but they couldnt get me approx of the highest it could be

OP posts:
wotuc · 22/02/2012 00:54

worried betty: thanks, thats very useful. can u tell me how u contacted barrister direct as i thought as member of public could not go direct have to be referrred-or have i got my wires crossed?

OP posts:
prh47bridge · 22/02/2012 01:24

There is no legal aid available for employment tribunal cases. If you win you are unlikely to be awarded costs, so any legal expenses must be paid from the amount awarded by the tribunal. It is possible that any award made by the tribunal would not cover your costs, leaving you out of pocket. So the lawyer you consulted is absolutely spot on. It will be cheaper if you fight the case yourself.

You can contact a barrister direct these days but the same rules apply. You will not be able to recover your legal expenses.

Employment tribunals were set up this way to encourage people to represent themselves. You do not need a lawyer to bring your case for discrimination. You can do it yourself.

KatieMiddleton · 22/02/2012 01:53

You can only get legal aid in Scotland and there's barely any of that available.

There is a huge difference between the advice you will get from an employment lawyer and an HR professional. This is because in many ways because they have different objectives. Plus you have to remember that much of the law is very subjective in employment cases. What seems clear cut on face value may well not be. What I am trying to say is that what you read online about what is allowed to happen and the reality are often two very different things.

As an HR professional my job is to minimise the risk of action against the employer by an employee. This means making sure all the Is are dotted, Ts crossed and there is very little room for people to make a case (this usually means removing anything ambiguous). This is because the costs of administering and defending an action are usually more costly in terms of money and time than the settlement award if the employee won.

An employment lawyer has a different agenda because the job is different. His/her objective is to get the best outcome possible for the least outlay. Occasionally they will advise against taking a case to Tribunal because you could get more in settlement by using internal processes. Sometimes they advise you against taking a case through Tribunal because the chances of winning and cost of action will be less than any likely settlement. This is usually all good advice. The chances of winning and discrimination case or constructive dismissal case are very, very slim.

It sounds like the lawyer thought your case was not very strong. The advice you have had may well be the best in your case.

Let me give you an example to explain: Sally, takes maternity leave. While she is away a job she had expressed an interest in is advertised and filled by someone else. She finds out afterwards and is upset because she would have applied. The job was one she had been partially doing on an informal basis prior to maternity leave. She complains. Her grievance is ignored. She makes a second grievance and attaches a sex discrimination questionnaire with details of how she feels she has been discriminated against while on maternity leave. She is invited to a hearing. They address some of the points in the first grievance but not the second. She then gets a letter closing off both grievances together but the second was never heard. At this point she goes to a lawyer.

The HR manager at the company finds out about what's happened. He realises there is potential for a tribunal claim and this worries him. He takes steps to fix the problem to avoid a tribunal case by inviting Sally to a mediation meeting. His primary objective is to resolve the situation as quickly and cheaply as possible.

The lawyer Sally sees agrees she has not been treated well but thinks it will be very difficult to prove maternity related discrimination. She suggests the employer may just be incompetent and so it would be difficult to prove discrimination. She also thinks the award will be quite small because Sally still has her job and her losses are not that much. She tells Sally that in her specific case she would not advise proceeding with a tribunal claim but that she should take up the HR manager's offer to mediate. The lawyers' primary objective is to get the best outcome possible for the client. Whether she realises it or not.

That example makes several assumptions but it does make the relevant point.

Having prepared case papers before, the best thing I can suggest you do is have a clear time line of events and a second one set out with date, time, location, witness names and what happened. Also keep copies of everything and reference the documents clearly.

A good barrister will cost about £800-900 per day. That is often better value than a solicitor charging £175 plus VAT per hour.

If you want help with your case you could start another thread in a different name?

emsyj · 22/02/2012 09:00

Agree that a barrister is often cheaper than a solicitor - I have regularly referred things to counsel to save a client money. But remember a barrister's remit is different from a solicitor's and you would effectively have to do the solicitor's job - the barrister will prepare pleadings, opinions and do the advocacy, but he won't enter into correspondence with anyone or collect evidence for you (in my experience).

Also have to say, without wishing to be offensive, that it is my personal experience that HR professionals often have a poor understanding of the law and I would therefore not recommend taking legal advice from anyone in that field. Having worked in numerous large law firms (from magic circle to large regional) I have never yet met an HR professional who knows their stuff. That isn't a comment on KatieMiddleton, whom I do not know at all and who may well be very competent indeed, it's just a general observation that most of the legal professionals I know would agree with.

By way of an example, I fell pregnant whilst working as a pensions lawyer in a large regional firm. When I pointed out to the HR team (3 of them, separately) that their maternity policy was woefully out of date and the pensions provisions were incorrect and not compliant with current statutory requirements, they argued with me very vigorously and didn't understand the legislation when I printed it off and showed it to them. I had to involve a senior partner to get it corrected.

I have also been involved in dealing with insured employment claims (though I am by no means an employment expert - I mainly was referred claims with a pensions element). The HR professionals that I came across on most of those claims were fairly clueless and had often done lots of meaningless paperwork in an attempt to 'dot i's and cross t's' whilst then putting both feet in it - including one particular gem where they had written a letter to my insured client stating in some detail the reasons why she was not being given a promotion, including one reason being because she was pregnant and would shortly be going on maternity leave!

Please don't take legal advice from anyone who is not qualified to give it.

KatieMiddleton · 22/02/2012 10:03

Emsyj your comments about HR professionals are very offensive. Especially when many people who use these boards are HR Professionals giving good advice.

A large part of the job of a good HR profession is to give advice and opinion within the law. While I agree there are many, many people working in HR who are less than competent there are a large number of employment law specialist, including those trained to draft legal work from contracts to dismissal papers and compromise agreements.

I'm sorry if your personal experiences have been bad. I sympathise. I have also had a shitty time in the past from clueless people working in HR. However I have also worked with some excellent people. Like all professions there are good and bad.

I have not at any point said the OP should take legal advice from anyone other than a qualified employment lawyer. What I have attempted to do is explain how the two groups differ in terms of objectives which might be why what she has read on the Internet has not reflected her experience of meeting the lawyer. In fact before I qualified and before I personally used the services of more than one employment lawyer I had a similar impression that the law was the law and everyone stuck to it or a tribunal would sort it out. That is of course a naive position with hindsight but not an unreasonable one.

Your post has really pissed me off. It's so needlessly rude about an entire profession based on annecdote, not fact.

KatieMiddleton · 22/02/2012 10:21

Btw half the case papers I have prepared were for the employee although I have prepared on behalf of an employer of course. Never seen anything as blatent as stating cause to be pregnancy but I have seen cases where sex discrimination had to be established quite carefully (this was prior to Equality Act 2010). Got a nice payout for both clients but both their lawyers (I was only doing internal bit and paperwork check) stated the outcome of a tribunal case would be hard to predict so settlement was a good outcome. Still cost each about £5k in legal fees. Money well spent IMHO.

Anyone in hr who cannot get basic paperwork right or who does not have a good understanding of the law is no HR "professional".

Rant over.

emsyj · 22/02/2012 12:12

I did say that was my personal experience and that there may well be exceptions. I don't apologise for saying any of it - I meant every word.

Funnily enough, I've just been for coffee with a friend who used to be a caseworker at the Tribunal Service and her assessment of the HR professionals she encountered in that role was much more scathing than mine...

I just fundamentally do not believe HR professionals are, for the most part, adequately qualified to advise on employment law. You are free to disagree and to be offended, but that does not change my view or my advice to the OP.

flowery · 22/02/2012 13:54

I think anyone who writes off a whole profession based on personal experience can't be taken particularly seriously tbh.

I couldn't do my job without being adequately qualified to advise on employment law. As a result of my knowledge no employer I've advised has ever had a claim made against them.

Obviously there are claims where the employer has actually done everything right, and the HR people involved are not at fault, but if one's experience of HR professionals is mainly confined to those who find themselves having to defend claims, it might be sensible not to assume those who manage to avoid that situation are equally incompetent and just lucky or are the exception.

Based on my knowledge of law firms and their internal HR professionals, I would also suggest basing a wider judgement of the whole HR profession's level of knowledge and experience on that group might not be appropriate.

Meh.

StillSquiffy · 22/02/2012 14:59

Back to the OP.... are you able to lay out the bare bones of your case (without outing yourself of course)? that way you would be able to get quite a few second opinions from us, which could be a good start.

emsyj · 23/02/2012 08:28

And also back to the OP.... Go and speak to someone face to face, showing them all your papers, and get further advice if you think that the lawyer you saw is not giving you the correct/full picture. Whilst the internet can be useful in giving you quick answers to basic legal questions or giving you a 'heads up' on a particular issue, it's really not the place to get an assessment of the strength of what sounds like a complex legal case.

Feel free to 'not take me seriously' - thankfully, I'm not a lawyer any more so it doesn't matter to me one jot. I don't think it is particularly controversial to say that you should go to a person who has been trained to do the necessary job, rather than someone who is required to have a basic understanding of it as part of a much wider and more diverse role. I wouldn't go to a theatre nurse and ask them to perform an operation, however relevant and valid their skills are to assisting with the procedure.

KatieMiddleton · 23/02/2012 08:39

Confused emsyj What are you on about? No one is telling the op to take advice from anyone other than a qualified employment lawyer about her case. I have no idea why you keep suggesting otherwise. If fact many people on the thread, including me, are suggesting that the advice given in person by an experienced lawyer in full possession of the facts is more likely to be correct than that from the internet which could be from any number of sources with a variety of different agendas.

But I'm off now. I have things to do including looking at an initial application for a flexible working request for a friend. Who is a lawyer Shock

flowery · 23/02/2012 08:49
Confused
seoladair · 23/02/2012 12:27

OP - some good lawyers do free initial consultations. You can also get no-win no-fee agreements, if the lawyer thinks you have a strong case. Try "shopping around" a bit - that should help you to ascertain the strength of your case.

HR professionals - I have had nothing but good advice from all of you HR regulars on this board, and when I started talking to a lawyer, your advice was shown to be excellent.
But...
the Head of HR for my employer has been shown to be woefully ignorant of basic employment and discrimination law. She has also been very underhand. I can relate to what emsyj is saying, going on my own direct experience of HR. But she is probably just one bad apple...

hermioneweasley · 24/02/2012 20:09

Wow, glad I came on here to try and help and find my whole profession disregarded based on the anecdoteal experience of one individual. I have 15 years hr and employment law experience...and I also sit on employment tribunals. But I guess emsyj is much more qualified than I am.

MollieO · 24/02/2012 20:19

In my personal experience the advice I received from a HR professional was far more sound than the advice I got from the employment lawyer.

MollieO · 24/02/2012 20:23

I'd also add that it must be fab to get to a level of post qualification experience where you know everything there is to know in your area of expertise. I'm rather envious of that.

hermioneweasley · 25/02/2012 09:13

I would never say I know everything, but I think I have a food enough knowledge to advise on whether someone has a case and what they can expect from the tribunal process.

emsyj · 25/02/2012 11:01

"

"

I think that was the point of KatieMiddleton's post - that the OP may get different advice from an HR professional than a lawyer, the implication being that if the lawyer's advice isn't what she wants to hear then she may get more joy from an HR professional.

"I'd also add that it must be fab to get to a level of post qualification experience where you know everything there is to know in your area of expertise. I'm rather envious of that."

I have not ever said that I know everything there is to know in any area of expertise - please would you point out where I have said that or suggested it in any way? I am not and have never been an employment lawyer. I was a pensions lawyer at a magic circle firm for several years, then moved out of London and switched to private client at a small firm after I had a baby. I am no longer a lawyer (since the end of last year) and profess no expertise whatsoever about employment law or the OP's legal position - I just think it is important that she is (a) realistic about the role of a lawyer in advising her and understands why the lawyer may have appeared less than enthusiastic about taking on her case and (b) appreciative of the fact that the best advice will come from speaking face to face with a suitably qualified person.

Quattrocento · 25/02/2012 11:10

Look at it this way, OP. The solicitor would likely have a vested interest in taking your case and you going to a tribunal, would he/she not? So the fact that you were properly advised not to make a case (presumably because the facts are weak) or to represent yourself (because any award would be low) then this probably means you should take heed.

I'm sorry you were disappointed with the advice and that your solicitor seemed bored. The boredom seems rude. Perhaps though, they'd said the same thing a few times over and you weren't hearing them?

KatieMiddleton · 25/02/2012 12:20

No emsyj that is NOT what I was saying as I have expressly stated at least TWICE. In my original post I state the advice the OP has received (ie from a lawyer seen in person) "may well be the best in your case". If there was any doubt on my position my subsequent posts have made that very clear.

Did you even read my posts or just use them as a flimsy excuse to vent some bizarre personal vendetta you have against a whole profession? Of course you may have misread the thread. But it seems unlikely over the course of several days and posts. Are you quite ok?

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