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?

My relationship also broke down, partly because of the stress and uncertainty of not knowing where I was going to live the next week and having no money.

Sorry Giraffe, I still don't quite understand. You said earlier that you had worked for your employer since October 2007. If your sick leave also started then, does that mean you've never worked for them actively?

In terms of the maternity leave period, if you were off sick for 10 months before you went off, then took the full year of maternity leave without explaining why you thought that you were forced to, I think you may struggle to convince a tribunal that you would otherwise have returned sooner and should be compensated for that time.

The loss of earnings from Oct 2007 to July 2008 is the key bit. What's their offer compared to what you'd have earned in that period (net earnings) as a rough percentage. It's hard to say how likely you would be to be successful in your claim without knowing a lot more about your illness, your expert reports and what you wanted your employer to do. The tribunal will have to be clear that you'd have been able to go back if the employer had made the adjustments. They will also have to be convinced that the adjustments you asked for were reasonable. Bit beyond the scope of this board. However, this is the key bit.

I'm sorry to say it, and you probably know, but you didn't help yourself by not explaining your absence or responding (or getting your mum to respond) to the letters.I don't quite understand why your doctor stopped signing sick notes. Either you were fit for work or you weren't. They should take the job as the find it. Did the doctor write to your employer to explain what could be done to allow you to return to work?

In terms of injury to feelings, again hard to say, but your solicitor is probably right. Injury to feelings awards are based roughly around some guidelines to do with the behaviour, not necessarily totally the impact on you. £5,000 is the middle band of award. Higher awards (£5,000 to £25,000) are normally reserved for more sustained programmes of active harassment. Your employer, from what I can see, didn't implement some adjustments that you say were reasonable. They also had an internal communication failure which meant you were called to a disciplinary when you didn't return after maternity leave/holiday without submitting a sick note. Yes, it's bad that they didn't talk to OH, but it wasn't malicious, you were absent without authority (and could have had your mum tell them about the OH conversation), so I don't think that that bit would bump up you injury to feelings award. [that doesn't mean sacking you was fair by the way, just that I don't think it adds to this bit of any award]. That means that he only injury to feelings bit is really the not implementing adjustments, and that's very much a low/middle bad infringement, not something you'd expect to go over £5,000 for (IMO).

Hope that helps a bit. Have you got the cover solicitor to write requesting an extension to your deadline?

I'm probably not very good at explaining myself. Sorry.

The losses equate to 9 months, and I'm not sure if employer will take into account that for the first 6 months, I was paid SSP.

The offer is approx 51% of my net pay for 9 months, or 43% of my gross pay.

This doesn't include the sick pay I was paid.

I've never been able to do the job they asked me to do, from when they put me in that dept, because even after telling the employer that I had a disability and needed reasonable adjustments, which would have cost the company less than £30 and which the union rep was sorting out, the employer refused to provide them.

I was then laid off with no pay. I asked for an alternative role, any role, even sweeping the car park. Employer said No.

Well, it's hard for me to say without full information, but it sounds like your adjustments were pretty easy to do. Why were they so resistant I wonder? I had assumed that your disability was related to the stress/depression stuff and was more complicated adjustments based around hours and duties...

Gut instinct is that, if you really could have been at work the full time between Oct 07 and July 2008 by a very simple adjustment, then the offer sounds a bit on the low side. Do also bear in mind that you were dismissed, so presumbably you have ongoing loss of salary too (sorry, I forgot to flag that earlier). Sounds like there might well be a bit more in the pot, at a guess.

They would take into account the sick pay, so if that's a substantial percentage of your salary, you might need to rethink the weeks/months thing.

Don't worry about finding it hard to explain. It's complicated .

I'd get your cover solicitor to write a holding letter (or, if he can't, get your mum to ring), just saying your solicitor is on holiday to X date, you need to discuss it fully with him/her and that you won't be in a position to respond until Z. Don't be pressured by (probably bluffing) deadlines.

RibenaBerry I did have another thread on here about the same problem, but under a different name, but can't seem to find it.

Your advice is proving invaluable.

I don't know why the employer was so resistant. In fact, when my solicitor first took my case on, she was convinced that my employer would settle before it even got to a preliminary hearing. I think my solicitor was a little surprised at just how stubborn my employer has been.

I am a little concerned that my employer could be reading this (Probably paranoid, but you never know.)

My disability is not wrt depression or anxiety, although I was always open about that.

I was also always open about my health problems.

I was happy to work full time hrs, but the work environment was making me ill, due to a pre existing condition I have, and as such, I asked for simple reasonable adjustments to be made to prevent me developing further problems with my health, which after only one day, it was apparent that my health problems were being exacerbated by the environment I was working in.

I hope I have not rambled too much.

I don't understand why I might have ongoing loss of salary too. Would you explain this please?

Unfortunately, I have no qualifications, although I would like to get some qualifications, but at the moment, I have none. I also live in a remote area, and have no experience in any field of work to secure myself a job easily, apart from working in a job which requires no qualifications or experience.

The SSP was approx 40% of my net pay, and approx 33% of my gross pay, so I suppose that will reduce my losses to date.

It's gone a little off post, but I think I might know the answer to your original question. it's quite complicated, though.

If you win an UNFAIR DISMISSAL CLAIM, a tribunal will require the employer to pay any Jobseekers Allowance or Income Support from any award it makes.

So if the tribunal thinks your loss of earnings is (say) £10,000, and you have previously received £2,000 in JSA, the employer will still be ordered to pay £10,000 - £8,000 to you, and £2,000 back to the DSS/DWP.

(If you want proof for this, it's at www.opsi.gov.uk/si/si1996/Uksi_19962349_en_1.htm )

If you win ANOTHER TYPE OF CLAIM (such as Disability Discrimination), then the regulations above don't apply. But a tribunal will achieve the same result (as far as you're concerned anyway) by simply awarding you your loss of earnings less the JSA/Income Support. In other words, you'd still get £8,000.

For ALL OTHER TYPES OF BENEFIT, the tribunal will deduct ONE-HALF of the benefit. So, if you've suffered £10,000 loss of earnings, and received (say) £2,000 from invalidity benefit, then you will be awarded £9,000 (ie £10,000 less half of £2,000). Your employer still only pays £9,000 and does not have to repay any of the benefit to the government.

(And if you want proof for that, it's at www.bailii.org/uk/cases/UKEAT/1996/767_94_2904.html )

Thanks HabsGirl

Would this be the JSA/IS I have received since my job ended? Would it also include any housing benefit/CTB?

It all seems so complicated to me.

Giraffe- I assume that your case is for the dismissal as well as the failure to make reasonable adjustments for your disability? If so, you have a claim for ongoing loss of salary.

It works like this: if you hadn't been fired and had been working, you would have earned X a month. If the tribunal agree that it was unfair to dismiss you, they take X and then deduct any other income (other have been advising you on how benefits are treated for this). They then look at how long you've been out of work and whether you've been trying to find another job (if you're too sick to do so, they'll take medical evidence on that). They then decide how long it is reasonable for it to take for you to get another job and work out the total.

There are complications in your case, like whether you'd have been well enough to be at work anyway given your mental health issues, but fundamentally that's how it works.

Thanks RibenaBerry

My solicitor is claiming for unfair dismissal too, but it's not a very strong claim, based on my failure to show up for work.

I can see why it's like a game of chicken, settling for the first offer or not.

I now have 3 days left to decide. [argghhh emoticon], but thank you so much for your excellent advice. I feel much more informed now.