Is the offer fair?
Being able to assess the claims that you have, and their individual strength will require detailed legal advice.
Your Surrey based solicitors should want to know the background information and to speak with you or meet you to work through that. Obviously, this will increase your legal fees so we recommend you prepare a detailed chronology setting out the key instances that you believe impact your claim as this can help speed up conversations/meetings with your solicitor and keep costs to a minimum.
Often when advising, we can identify claims of discrimination, but given the complexity of the law these can be missed by individuals or misunderstood. If you have a discrimination claim (or any other complex claim, such as, whistleblowing) your solicitor should be able to identify those, explain in plain English how those claims work, the strengths and weaknesses of your claims and their potential value.
Only when you understand the claims you have, their respective strength and their likely value can you make an informed decision about whether the offer is fair.
When trying to understand if the offer you have received is fair and reasonable several aspects come into play. While there is no formula that applies to everyone, numerous factors will be considered by your solicitor, including:
1 Whether you have another job.
If you have managed to secure alternative work and assuming the pay is commensurate with your current (or former) role then you’re probably in the best possible situation and can secure a windfall payment.
The reason being is that Employment Tribunals award compensation based on your loss of earnings. Therefore, if you have another job you will not suffer any losses and so there is little point in rejecting the offer and pursuing an Employment Tribunal claim.
Simply because you have another job does not necessarily mean there is no scope to try and negotiate improved terms, it’s just the risk you carry is much higher. If you negotiate you are effectively rejecting your employer’s offer and it could decide not to either restate that offer nor make any other offers.
While it is generally uncommon for this to happen; especially at an early stage in negotiations, you will need to balance the certainty of securing the payment/terms from your employer against the risk and benefit of securing improved terms; usually more money.
If you are in this position and want to negotiate you should seek employment law advice from us as to how that negotiation should be structured and presented. We have lots of experience in advising people in this exact situation.
2. How long you are likely to be out of work.
While predicting the future is impossible, if you are confident that you will quickly find another commensurate role, then that may make it easier to decide whether you accept terms with your employer.
If you are unlikely to secure new employment, this may be a factor in valuing your claim and, therefore, the amount you seek as compensation.
Employment Tribunals generally acknowledge that people who are closer to retirement are more likely to struggle in finding alternative work. Equally, the Employment Tribunal also accepts that people with obvious disabilities may suffer prejudice by prospective employers making it harder for them to also secure alternative work.
There are many other reasons why you may struggle to find another job. There could be less obvious disabilities that will hinder your job search. We have seen it in the past where the employer’s behaviour and conduct has such a negative impact on a person’s health and well-being that they need a period to recover before being well enough to look for a new job. Equally, the Employment Tribunal knows that if you work part time, are on or have just returned from maternity leave, that too may make it harder for you to secure a new role.
Other considerations may well come into play, such as the industry in which you work, the current economic climate etc.
The basic position is that if you are going to struggle to find another job, and have a strong claim, then the potential value of your claim could be higher, as Employment Tribunals award compensation based on the actual or predicted loss of earning you suffer. In simple terms if your losses are likely to last longer, then you stand to recover more (assuming you win your claim), and this can impact on the terms you should agree.
3. The process your employer has (or hasn’t) followed.
If your employer has not followed a fair process or does not have reasonable grounds to terminate your employment, then the main claim of unfair dismissal may come into play.
By offering you a settlement agreement, your employer is seeking to avoid all the procedural steps it perhaps ought to follow and, therefore, there will be benefit to it in reaching agreement with you.
However, you need two years’ continuous service to claim ordinary unfair dismissal. No such service is required if your claim is for discrimination or whistleblowing. Further, in claims of ordinary unfair dismissal the maximum award is the lesser of one years’ pay or approximately £85,000, so if you are a high earner, there is risk your employer simply terminates your employment and offers you the maximum for unfair dismissal.
We occasionally see it where individuals are sacked on the spot but, in this situation, the employer generally offers a substantial sum for the settlement agreement to be signed.
4. Your appetite to fight / ability to give good evidence.
One thing your solicitor should interrogate, is how committed you are to pursue a claim and how you may present as a witness. In our view, your solicitor should not be encouraging you to litigate or take unnecessary risks if you do not want to take any risk and/or you may make a poor witness.
5. Stress
Many clients we have advised over the years are keen to commence legal proceedings but will often run out of steam fairly quickly. The process itself is involved. It requires a lot of your time and, given the risk involved, places a lot of stress on you. This aspect, in our opinion, cannot and should not be underestimated by you.
6. Cost
Litigation is costly. If you are privately funding your Employment Tribunal claim, legal fees will rack-up quickly and the more complex your claim the more it will cost. Further, if there are lots of witnesses that too will have an impact on the amount of time and preparation needed, which will again increase your legal fees.
Law firms are now required to publish their anticipated fee ranges for certain Employment Tribunal claims so it’s worth looking at this information when deciding who to instruct. However, in our opinion, you generally get what you pay for, so the cheapest is not always the best.
Instead try and find an employment solicitor based on recommendation. Any employment solicitor should be willing to spend time understanding you and your claim before taking you on as a client and incurring fees. Ask around and if a name keeps being mentioned, its probably for good reason (you want a person’s name, not the name of a firm).
There are other funding options to help protect against this factor. You may have the benefit of ‘legal expenses insurance’ on an insurance policy (typically household contents) where the insurer will cover your legal fees to pursue a claim. Please remember that you do not have to use the insurer’s panel law firm, but that you have freedom of choice to use any solicitor that you want. We regularly take on work where the client is insured so we get paid by the insurer, not you. This means you can access our specialist legal advice without cost.
Alternatively, you may be able to secure a ‘no-win – no-fee’ arrangement whereby your solicitor is only paid in the event of a successful outcome. However, such arrangements are not common with Employment Tribunal litigation given the fact that it’s very rare to be awarded costs even if you win.
Further, you may have the benefit of being a member of a union and, if so, that union may be willing to support and fund your claim.
If you are unable to afford a solicitor, you can either pursue the claim yourself or you may be able to get free advice from places like citizens advice or certain charities that fight for particular rights.
7. Risk
Litigation is risky. If you pursue a claim there is a chance you will lose that claim. If you are privately funding your claim, and lose, then you may end up with no compensation; just substantial legal costs.
With the Employment Tribunal system, the cost position is slightly more favourable compared to the County Court because if you lose you should not have to pay your opponent’s legal fees; unless the Employment Tribunal believes you have behaved unreasonably or vexatiously.
8. Certainty
Litigation is uncertain. If you have a strong claim and win, you may not be awarded significant compensation. If the compensation is less than your legal fees, you will end up out of pocket.
Even if you are successful at an Employment Tribunal, that may not be the end of the matter, as your employer may decide to appeal the Employment Tribunal’s decision, which will mean more delay, more stress and more cost.
9. Reductions in awards
When awarding compensation your employer will generally argue one (or more) of the following four:
9.1 That you have failed to mitigate your loss. You are under a duty to look for alternative employment and, if you fail to do so, the Employment Tribunal can reduce your award. Typically, your employer will adduce evidence of available roles that you could (or should) have applied for. If your job search has been limited, the Employment Tribunal may penalise you for that.
9.2 That your dismissal would have occurred in any event. It may be that your employer has not followed a fair procedure, and, in that case, an Employment Tribunal may be persuaded that any award should be minimal; e.g. two to four weeks’ pay, because the outcome is right it’s just the employer did not follow a fair process.
9.3 That you have contributed to your own dismissal. This argument tends to occur where the reason for dismissal is either misconduct or poor performance. If there has been some conduct on your part that justifies dismissal the Employment Tribunal may penalise you with a percentage reduction if it feels your conduct has contributed to your dismissal.
9.4 Lastly, the Employment Tribunal can increase and decrease any award if either party fails to comply with the ACAS Code of practice when dealing with disciplinary and grievance issues. The adjustment can be up to 25%, but if you have failed to raise grievances or if you have not engaged in your employer’s disciplinary procedure, that can count against you by way of a reduction in your award of up to 25%.