Employment Tribunal - Quick Question.

[giraffeshavelongnecks]

Does anyone know, if an award for compensation is made through the ET, and the person who brought the claim has been in receipt of means tested benefits since the tribunal proceedings have begun, does the claimant have to pay back the govt for the benefits they have received or do they receive all of the compensation?

I have a feeling any means tested benefits which are paid during the time the proceedings are on going has to be paid back from whatever compensation is awarded, but am not entirely sure, so calling on all you wise mnetters.

Also, does this also apply wrt compromise agreement settlements?

Can anyone clarify?

I don't actually know, but I wouldn't have thought someone receiving a lump sum of money from somewhere would have to pay back benefits they'd received in retrospect. I imagine it's more likely they'd take into account lump sums when it comes to allocating benefits going forward, but not retrospectively.

However if it's an unfair dismissal claim, bear in mind that compensation is based on actual financial loss, so the fact that the person has received benefits during that time will obviously affect what their actual financial loss was as a result of the dismissal.

If the claim is settled with a compromise agreement before it gets to that stage, the amount is entirely negotiated between the two parties, so benefits that the person may have received might be taken into account by the employer when it comes to how much they're prepared to offer, along with lots of other factors, and obviously it's up to the person to decide whether or not they are willing to accept what's being offered.

IIRC, the award is reduced if benefits are claimed in line with the amount of benefit paid, ie, if the award is for 10k and benefits have been awarded up to that date of 1k then the total award is for 9k. I may be wrong though as it's been a few years since I did my law degree.

There you go giraffes, as the compensation is based on financial loss, it will be reduced in line with benefits you've received.

Thanks so much for the advice.

A lump sum has been offered by way of a compromise agreement, and the employer has stated that this will be the only offer.

If this offer is not accepted, I assume that there can be no more offers prior to tribunal, since the employers have said this will be the only offer.

Not sure if the employer can change their minds at a later date and make a subsequent offer or not, or if they are bound by saying this will be their only offer.

Is it likely that the employer will have already taken into account any benefits paid since the claim started, and the amount they are offering is what will be paid by the company?

Or is it possible that if the offer is accepted, the employer will then say they will then reduce the offer by X amount to take into account the benefits received?

Sorry if this doesn't make much sense.

You've both been really helpful.

If this is an offer to settle before the tribunal then it's different to an award and the chances are that it will not include any benefit payments which you have recieved, it just means they can't be bothered to attend/the cost to them is more then the cost to settle. You may need to discuss the added 'income' with the benefits agency and see what they say before a decision is made, they can't reduce the offer to take into account any paid benefit to you as it's only the award from the tribunal that will do this, not an agreement to settle. An employment tribunal will look at the income support/unemployment benefit since leaving the job, not at anything else.

It's rarly the only offer, I had an initial crap offer when I did mine, 5pm the day before the hearing they increased it by 4 times as much, don't hold out in the hope that they will do this though as it's a bit like playing chicken. It was really stressful to be honest, I was a 1st year law student so was thrown into employment law in a big way. You have me on you FB email if you need anything x

The employer can make as many offers as they want. They are saying it's the only one to try and get you to accept it. It's up to you whether you do so or not, it's a bit of a game of chicken as Belle says, if you refuse you may get a higher offer or you may end up going to tribunal. It will all depend on how likely your employer thinks it is that you will a) take it to a tribunal, b) how likely they think it is that you will win, c) how much they think you might be awarded in terms of compensation and d) how much their legal fees might be if they pursue it further.

Your employer is unlikely to know how much you may have had in benefits, but when trying to work out how much to offer, they will take into account how much they think you might get at a tribunal, and a tribunal will take benefit into account. So your employer might factor that in, but tbh, settlements are all about negotiation and how much either party wants to settle it.

Thanks so much for your advice.

I am concerned that it may be their only offer, and employer has given me a deadline of Feb 5th to accept this offer or not. It feels like such a short amount of time to properly think about it, I can't think of anything else.

Added to the limited time I have to make a decision, my solicitor is on 3 weeks annual leave, and I only have a stand in to discuss this with.

The tribunal isn't to take place until June 2010 onwards. Dates are yet to be confirmed.
It seems a rather dirty trick imo to state it will be their only offer, then for them to make a further offer, IYSWIM.

It has been set as a 3 day hearing.

It is a DDA tribunal claim.

Employer was adamant I did not come under DDA, since in their opinion, I am not disabled, but we have now been to a preliminary hearing (late last year) and have been classed as disabled, for the purposes of this claim.

My barrister told me that this puts my employer in a much less favourable position anyway, now the judge has declared me disabled under the DDA.

Also thought I should add, I have been on benefit since June 2008, because my employer refused to pay me, although I worked for them from October 2007.

I went on Maternity Leave in July 2008, and wouldn't have taken 12 months mat leave if I had been paid and allowed to go to work, but stupidly, because employer hadn't made the necessary reasonable adjustments after 6 months mat leave, I didn't think to inform employer I wanted to return to work after only 6 months. My fault I know.

Now employer is saying that I took 12 months mat leave (which I didn't get paid for, as I had not been paid enough in the preceding weeks to qualify) so my loss of earnings is not as great as my solicitor is claiming them to be.

I have posted about this before when I got some great advice, but under a different name.

Belledechocolate When you were made your initial offer, did your employer state quite clearly that this would be their only offer?

I am also not sure who you are if you are on my FB.

Well I would agree the fact that you are definitely disabled for the purposes of the claim definitely puts them in a worse position, if part of their defence was that you are not. It does sound as though part of what is up for debate is what your losses actually are, not just whether your employer behaved illegally/unfairly. Because that amount is disputed, it obviously makes it more difficult to decide whether the offer on the table is worth accepting.

It's not clear whether your employment has ended or not. Is it the case that your employer is offering you x amount to drop the claim and end your employment, and therefore if you don't accept you remain employed? Or are you claiming some kind of dismissal as well? If not, then that will affect your compensation as well, obviously.

If your solicitor is away, I would suggest you write to your employer, explain that he/she is away until x date and you are therefore requesting an extension to their time limit in order that you can take advice as to whether to accept their offer. They may say no, of course, but you should definitely get a request for an extension in writing.

Thanks flowery

My employment has ended. It ended after my mat leave, in August 2009. tbh, I just couldn't physically make myself enter the building.
OH were very helpful, but my employer sacked me for gross misconduct.

I have had alot of anxiety and depression problems.

If you were sacked for gross misconduct, that would normally be something really serious obviously. Is there any dispute about that, whether it happened and whether it was gross misconduct and dismissal therefore justified?

I'm Julie , I am on there (unless there's 2 Giraffes on here )

They didn't say it would be their only offer, I had a really shite solicitor who advised me to settle at the first offer, I said no and I was pretty much left to finish it off myself.

It sounds like they are trying to frighten you into accepting their first offer, you have to do what is right for you. I had my hours slashed by 50% because I took a few days off with ds when he was ill, there was no one else to look after him and I couldn't send him to nursery.

Gross misconduct is things like theft, it basically means they really don't trust that member of staff anymore because they have done something really severe.

I'm not sure about that tbh flowery.

I was contacted by OH, and I explained the problems I was having. OH suggested I ask my mother to accompany me to the building and attend the first back to work meeting.

I was given 2 weeks to arrange a mutually agreeable time between my mother, myself and the company.

I explained to OH that I couldn't even bear to ring my employer, so my mother would be arranging the first meeting on my behalf.

I was convinced that once I had got through the door, I would feel much better.

In the mean time, in those 2 weeks that I had agreed with OH, to speak to my mother, my employer held 2 meetings regarding my 'no show' at work.

I didn't attend these 2 meetings, which were arranged after I had spoken to OH.

OH said she would speak to HR on my behalf and explain how I was feeling.

It was at the 2nd meeting, in my absence that employer decided to sack me for gross misconduct, based on my failure to show up for meetings or work.

Belle I think there are a few giraffes on here.

I do have a Julie on my FB, and she plays Farmville. Does your surname begin with R? And do you like red wacky knee high boots?

Sorry Belle. Just realised that the lady I have on my FB is Julia, not Julie.

I would be happy if you would like to add me though.

Of course. I get enough spam so I'm happy to pop this on here jouelsie at fsmail dot net.

Can't seem to find you on FB Belle.

My email address to search for me on FB is pinksoftkitten1 at hotmail dot com.

FB seems to be feeling ill at the moment so I shall try later.

Can I clear some stuff up about the chronology of this:

• You went on maternity leave;

-After six months, you weren't happy that arrangements had been made for your illness/disability, so you stayed on maternity leave. Did you tell anyone at the time that this was why you were staying off?

-Presumably, the 12 months of maternity leave ended (otherwise you wouldn't have been a 'no show' at work). What happened then, were you on sick leave? If so, how long was this for and did you have a doctors' note?

• You agreed with occ health that they would set up a meeting via your mum. However, the message went awry somewhere and two meetings were arranged at work?

-Did you receive notification of these meetings and, if so, did you or your mum contact the company to let them know what had been agreed? If you simply ignored the letters then I think that this is relevant as, although the company is still potentially at fault for poor communication, there is less evidence that they acted with deliberate malice.

-What happened after you found out about the meetings?

In terms of compensation, bear in mind that it will be based on your loss of earnings. The six months' additional maternity leave will be very relevant and you should discuss with your solicitor what evidence there is that the extension was to do with your employer's behaviour. Were there emails to request adjustments, notification of illness? Flexible working requests? The more evidence, the more chance you have of including this as a loss. If the tribunal thinks you would have taken the leave anyway, no loss and therefore no compensation for this bit.

Then think about how much this offer represents in NET pay. Some or all of it is probably tax free, but awards at tribunal are based on net loss of earnings, not gross pay. Does it roughly correlate to how long you think you need to find a new job? If not, why are they discounting? Are there parts of your claim that are weak?

On the tactics, if the hearing is not until June, what other steps need to be done soon in preparation for the hearing? If there are not big outlays in legal fees coming up imminently (eg. witness statements), it is likely that your employer is putting the deadline in place to encourage you to get a move on, not as an absolute drop dead. Even if they don't agree to extend the deadline, if you came back after it had expired and offered exactly the same amount as your own settlement proposal, they would probably take it.

In terms of saying something will be the only offer, well that's just negotiation I'm afraid . It's like if you're buying a house or a second hand car. You often say, "well my best offer is X" of "well all I can offer is X", even if you'd go to a bit more. It's all a game of bluff and all is fair in love and war! One thing I would say is that first offers are rarely final offers, there is almost always a teeny bit extra in the budget for negotiation.

Ribena what is the position, should the OP reject the compromise agreement and a similar amount is awarded at tribunal?

Agree with Ribena's advice as far as the actual amount. Also take into account benefits (childcare vouchers, travel concessions) and am sure your solicitor has worked it all out.

Ilovemydog - There's no equivalent in employment tribunals of Part 36 (is it 36? I never use the Civil Procedure Rules), so no direct consequences. They can make what is known as a Calderbank offer. This is effectively a very formal letter warning that they consider rejecting the offer to be evidence of behaving in an unreasonable way in the conduct of the litigation. They could then, in theory, point to that offer later on if they applied for costs (because unreasonable conduct of the litigation is one of the headings for asking for costs, even though they are not normally available). However, such awards are rare if there is obviously an issue in dispute, and tribunals do still believe that claimants have the right to a ruling, so even turning it down because you want a finding can be reasonable behaviour.

OP - don't worry about this. All a very techy discussion. If they were going to do ANYTHING of this nature, the letter would be really clear and your solicitor/his cover would be briefing you fully and springing into action to discuss options. I don't think any of this is happening to you, or likely to do so.

Sorry if my question added confusion , but thank you Ribena for that clarification.

The court has already decided it falls under the DDA, and that's great!

As a former union officer, I can say that if I got a pound for every offer deemed final that was increased, I'd be a very rich woman!

From a PR stance, no company wants to have to defend a DDA claim, so of course they will want to settle.

What you will need to work out with your solicitor is the stress involved, and possible strategies.

I know some people are reassured by going to the Tribunal, and learning a bit how the process works. In my experience, the people sitting on employment tribunals are very human people, and want to reach a fair settlement, so don't be afraid of going to tribunal if that's what your solicitor advises!

RibenaBerry I will try to answer your questions as far as I know. I really appreciate your advice. My head feels like it is going to implode from it all.

I am sorry to say I didn't tell anyone why I had not returned to work after 6 months mat leave. I will have to live with the consequences of this now.

After 12 months on mat leave, I took some holiday I had accumulated whilst on mat leave, at the company's request, and they were still sorting out my reasonable adjustments at this time. It was straight after my holiday had ended that I didn't show, and OH phoned me and we agreed for my mother to accompany me to any meetings before my return to work. It was during this period of time, within the 2 weeks that OH had spoken to me on the phone that I was sacked for gross misconduct.

I did receive letters that these meetings were going to take place, but I didn't call them, because I honestly thought OH would be filling HR in on my feelings of anxiety at attending the meetings.

I only requested flexible working hours after my mat leave had come to an end. (I did go in for this meeting).

My solicitor and myself have been asking for reasonable adjustments so I could go to work since October 2007.

Employer always refused providing reasonable adjustments on the basis that they believed I was sick, not disabled. Hence my employer putting me on sick pay from October 2007 until May 2008.
From beginning of December 2007 onwards, my GP refused to sign any more sick notes (Employer asked me to ask Dr's for sick notes so they could pay me SSP) since my GP said it would be unethical, since GP said I was not sick, it was a health and safety issue at my employers.
Employer still paid me equivalent to sick pay though until May 2008. After this I got no pay at all, and no mat pay at all. The only pay I received after this was my holiday pay after my mat leave ended.

The preliminary tribunal hearing was to determine if I was indeed sick, or disabled under the DDA. The judge ruled in my favour.

Also wanted to say that the employer's solicitor have said they don't agree that my hurt feelings amount to as much compensation as my solicitor is asking (which is £5000) because they don't think I suffered that much.

Unfortunately, the fact that the financial difficulties I had because of my employer's refusal to pay me, and the stress almost losing my home as well as being pregnant had, doesn't seem to mean very much to my employers solicitor.

Employer's solicitor also said that they were not going to compensate me that much for loss of earnings, since I was on mat leave for a year.

The material time for the claim (I think that is what it's called) was October 2007 to September 2009.

I was paid holiday pay after my mat leave, so no losses there, and my mat leave was from July 2008 until July 2009, so the losses occurred from October 2007 to July 2008.

Personally, I think my hurt feelings should have been set higher than £5K, but my solicitor said if she asked for much more, my employer would say NO WAY!!!! So my solicitor wanted a settlement sooner rather than later.

Employer have not been interested in a settlement at all before now.

Apart from before solicitors got involved at all, and my employers directly offered me £2K in a meeting as part of a compromise agreement, which I refused.

I have spoken to the Disability Law society on the phone, and they thought I should be claiming for the medium amount of compensation for hurt feelings in their opinion.

Hope this helps a little.