Is it fair to assume that if I take my employer to a tribunal, no one will ever employ me again?

[bohemianbint]

And if so, considering I'm being discriminated against after having a baby, that's really unfair, isn't it?

How will I explain that I can't ask my previous employer for a reference?

I'm thinking if I go through with this I'm going to be forced to freelance...

Bohemian,

In a regular court, eg personal injury, the loser pays the winners costs. This means that if you sue someone for personal injury and win, they pay your fees. They may or may not have insurance for that. (There is also the issue of whether they recover all the costs, but that's a bit of a side point).

In an employment tribunal, each party bears their own costs. The only exceptions are where one party has behaved so unreasonably that the tribunal orders them to pay the costs. However, this relates to the conduct of the litigation (e.g. bumping up costs unreasonably by making loads of unecessary interim applications or whatever), not generally their conduct in relation to the employee in the first place.

As others have said, yes, you would need to be in court at the same time as your boss. He would probably be sitting there while the barrister cross examined you. It isn't really like a court though, more like a big classroom which a bench at one end on a raised platform. No one wears wigs or gowns. However, I am not going to lie to you, it is a blooming scary experience. If you want to go ahead, you need to be prepared for that.

Having said all of the above, if your claim has any merit, your employer will want to settle it. The majority of discrimination claims never make it to a hearing. The majority that do only do so because the employee has unreasonably high settlement applications and didn't take a reasonable offer when it was made. Therefore, you don't need to want to go all the way to tribunal, just to hang on long enough to see what sort of offer you get.

As a result, you have to assume that you will pay your costs if you win. There is no reason for this to come out of the employer's insursance. That money can come (broadly) from one of two places:

1. You have insurance which covers the costs. As others have mentioned, it could be a home insurance policy that covers legal fees.

2. It comes out of what you win.

2 is far more common, which is why you need to be really sure that fighting still gives you more money than settling after the costs are allowed for. Your lawyer would advise you on whether an offer was a good deal.

bohemianbint,

i had exactly the same worries as you...held off taking it to tribunal mainly because of the reference. what clinched it for me was when my immediate supervisor told me in no uncertain terms that i would not be getting a reference..(for reasons unknown to me as my dismissal was not her decision, i had never blamed her for it and we were on good terms until i chased up my reference). "oh well" thinks i, "i havent much to lose now". i contacted acas and was told that i couldn't force them to give me a reference, but they couldn't give me a derogatory one either.

i got to interview stage of my current job while i was still in the process of taking my former employers to tribunal and when my new company called them up, strangely they did give me a verbal reference although the director made it clear he did not want to make any further comments about me, just to answer the questions asked as i was taking them to a tribunal! i still got the job.

the tribunal itself was horrible, absolutely awful and they DID play on things they knew it would be hard for me to remember..i was also insulted in statements, personal comments were thrown in (i assume they were hoping to make me blow my stack). they really had nothing else on me so resorted to childish behaviour. their solicitor was an agressive jumped up arse, firing questions at me like something from a movie...you'd have thought i was up for murder! but however hurtful it was, it just made them look even more stupid, and like the liars they are, especially when i kept my cool. i did win btw! i would have still been proud of myself if i hadn't...employers shouldn't be allowed to get away with this kind of thing.

You will have to face your boss, yes.

If you can take someone along with you then you should (for moral support). I am assuming you are representing yourself?

If you are - you will be required to ask questions of your boss etc - same as it will be asked of you.

It's tough going but worth it. I got half way through my tribunal and they settled.

Wannabe - its sad you feel that way. If people werent so intimidated by this employers would be less likely to try this kind of crap on.

I have taken legal action twice, both against multinationals. Both cases settled well before tribunal and in both instances I received more than a year's salary and negotiated the wording of my reference as part of the settlement, which meant that I never had to go into the details regarding my moving jobs when I discussed with future employers. So.... if you know you have a cast-iron case then I think it is worth it. If there is a risk that your furture earnings potential has been damaged by the very act of taking them to court then this will be taken into account by the tribunal in the deciding of the amount of the settlement (for discrimination cases only - not for all claims) - that's why the banking cases always end up as multi-million claims.

That's the good bit. The bad bit is that if there is say a 30% or greater chance of losing then I would walk away, no question. The stress is really high and you get everything thrown at you. People who you previously respected may lie to your face and deny that X,Y and Z happened and you will wake up at 3am in cold sweats wondering if your actions will leave you destitute and untouchable etc etc.

Sometimes people crank you up so much regarding how unfair things are that you can lose sight of the bigger picture - where do you need to be next year, emotionally, financially, and how will a tribunal help/harm where you need to be. For some people walking away means they get on with the rest of their lives quicker. For others the very act of walking away will be akin to 'giving up' and letting the other side walk all over you... you have to make the call about what kind of person you are and work out how you should move forward based on that as well as on the strength of your case. But don't underestimate the stress of it all. I had a cast-iron case both times but it still stressed me out hugely going through it.

Thanks very much everyone for all the feedback. I'm going to see a solicitor tomorrow so I think that will be interesting.

I almost learnt - (thanks to you!) that this should be covered by our house insurance so cheers for the tip, I never would have dreamed of checking that!

In a further twist, it now looks like the company is in a spot of bother and that we may all be getting the boot fairly soon anyway. So not sure now how productive action would be but am going to check out all my options before making a decision. I really could live without the stress but it depends how worthwhile it would be to go ahead. I'm all for a bit of hassle if it makes the point that a lot of women get treated badly after having a baby and it shouldn't be the case.

I'll keep you posted!

go go go!

good for you! Let us know how you get on.

Update!

Well, I met with my solicitor yesterday who says she will take the case on a no win no fee basis as she thinks it has a greater than 60% chance of winning.m

I'm just waiting on the t&cs through the post and then I think we're going to proceed. It's all going to happen quite quickly, I think she will probably tender my resignation for me which will be effective immediately (which is good because I don't want to be around to see the fallout!)

It's going to be consrtuctive dismissal, damages for unjured feelings due to sex discrimination, and an uplift because he didn't conduct the greivance hearing properly. I think she's going to try to get a settlement intially.

Exciting stuff, not quite sure how I feel about it. My son will have to stop going to the childminder's until I find a new job (which is a shame, as they both get on really well), and in the meantime I will actually be as well if not better off claiming JSA. It's crazy.

Thanks again for all the support and info ladies!

Well done, I think that shows guts (but is also the Right Thing To Do).
Best of luck, and please tell us how it goes!

Cheers Minty! Will do...

bohemianbint: can you claim JSA straight away? I seem to remember a delay if the unemployment was due to a resignation. I may be wrong though, I've never claimed it.

I'm not sure Duchess, I need to look into it - but as it's constructive dismissal, I would hope that it wouldn't affect it, am I right?

I'm actually not sure if I can claim it anyway, as my DP has a job? I dunno if he's expected to provide for me, even though he only just covers our outgoings. Need to find out how it works...

But it isn't proven to be constructive dismissal - yet. That is for the ET to decide.

Good luck with it.