Constructive dismissal case study
How our partner, Will Burrows, achieved the best settlement possible for his client
A case of race discrimination, performance management and constructive dismissal
When a Black British finance professional raised valid concerns over his employers conduct, his life was made unbearable at work, forcing him to resign. His former employer then went onto make derogatory comments about his race and lies to external contacts and regulators.
Whilst his first solicitors were able to secure a £130,000 settlement offer, Bloomsbury Square partner Will Burrows assessed the case and proposed that the client was under-settling. Following new instruction, Will was able to secure the client a £900,000 settlement agreement, including payment of the client’s legal fees.
Will Burrows was instructed on this matter in 2019/2020.
The background of the case
Mr AB was a white-collar professional working for an international bank.
Mr AB had raised protected disclosures regarding sexual harassment of colleagues and serious compliance failures, amongst other matters. He immediately experienced retaliation from his manager and removed himself from the workplace.
Thereafter, while his disclosures were being investigated, senior managers made derogatory comments regarding AB’s race and his motivation for making protected disclosures. AB was a Black British man.
AB’s e-mails were searched, his access to systems blocked and several lies were told about AB to regulators and external entities.
Did you know?
Constructive dismissal is where a working environment is so difficult that the employee feels no choice but to resign
Contact UsA settlement agreement at early conciliation
AB initially instructed other solicitors who commenced ACAS Early Conciliation and embarked upon a negotiation process, the result of which was AB being offered £130,000 to settle his claims. AB earned around £100,000 per annum. At the point of settlement, Will Burrows was recommended to AB and reviewed the matter for him, advising that, in his view, AB was under-settling his case. AB instructed Will Burrows, who withdrew from negotiations and commenced litigation, advising AB to resign his position immediately, which he did.
The importance of witness statements
Will Burrows recognises that witness evidence in this case would be key, and so took witness statements from AB’s colleagues and former colleagues confirming that AB had been subject to racial discrimination and detriments for making protected disclosures. Will Burrows instructed an IT expert who provided a report demonstrating that AB’s e-mails had been searched. Will Burrows waiting until the company had filed its defence and provided further information to the employment tribunal, which pinned the company to a series of facts that he knew to be lies. At this point, Will Burrows disclosed the witness statements and further documentary evidence on a “without prejudice” basis that proved the company had lied extensively about material facts in the case, including serious racial discrimination and whistleblowing detriments.
Choosing mediation to get the best result
The company agreed to mediation, which took place remotely due to COVID-19 restrictions, and settled for a figure approaching £900,000, including full payment of AB’s legal fees, almost seven times the amount that AB was advised to settle for by his previous solicitors eight months previously.
“My initial assessment was that AB’s previous solicitors had advised under-settlement and had also given incorrect advice in respect of limitation dates, the efficacy of second ACAS certificates, and crucial legal aspects of the case. The previous firm was a Legal 100 firm.
It was vitally important to get ahead of the company at every stage in securing evidence and witnesses, and that is what we did. I formulated a plan with AB from the outset in terms of the over-arching strategy of the case. The general strategy was to obtain evidence and instruct experts to demonstrate the company had acted as AB claimed it had, then deploy that evidence and information at points that the company had already committed to a false set of facts. We instructed a QC to draft the pleadings in order to demonstrate to the company that we had equal firepower and would not be pushed around like AB had been under his previous solicitors. We instructed recruitment consultants to demonstrate serious, long-term losses; IT experts to demonstrate malfeasance, and secured an array of witnesses who supported our case. This gradually knocked out pillar after pillar of the company’s defence until it had no option but to settle, and settle for a very large amount of money, or face a humiliating defeat in the employment tribunal, and a large amount of media and regulatory scrutiny.
Mediation is strongly recommended in cases such as this, as it allows the company and employee to both achieve their objectives in private, and following a long process, this was achieved.
I firmly believe that, in high-value, contentious employment cases, the claimant must demonstrate that they are at least the equal of their employer in terms of tenaciousness and resources. This means demonstrating from the outset that they have a veritable arsenal of legal firepower that they are willing to deploy when they need it. They must always be on the front foot and ahead of the employer, as employers and their solicitors are not used to this approach and believe they can bully claimant solicitors into under-settling using threats and intimidation. Cases such as this require expertise and experience from the lawyer, and trust and commitment from the client in order to secure the kind of result in AB’s case.”