Tribunal proceedings
No case starts out with the intention of issuing proceedings. Indeed, this was a text book case where my client was looking for a swift resolution: reasonable compensation to tide her over as she looked for another job.
The discriminatory conduct
My client, EF, was newly recruited into a senior leadership role of a start-up business. She was told that she would be given the independence to shape the role and her team.
Within the first 4 weeks of employment, she had raised concerns about harassment and working practices that she believed to be in breach of the Equality Act 2010.
Having raised concerns, she found her decision-making was questioned and her core responsibilities were reallocated. She spoke to her line-management and was given an unsatisfactory explanation for the changes to her responsibilities.
The following week, EF was told she hadn’t passed her probationary period and that she would be dismissed with one weeks’ pay in lieu of notice. She was told to leave immediately flanked by a member of security staff.
Pre-Action Discussions
EF contacted me and I was instructed to draft a letter of grievance and a without prejudice letter and to make a data subject access request. I agreed to work under the terms of a Damages-based Fee Agreement.
The employer was slow to reply. They rejected an offer of settlement that was in the region of 9 months’ pay – 3 months’ notice for the notice period that would have been payable if she had passed the probationary period and an ex gratia payment equivalent to 6 months’ pay. They instead offered one month’s pay. They said it was their final position; they would not negotiate further.
They rejected the grievance days before the expiry of the primary limitation date (see Timelimits).
We notified ACAS of the claim. However, it was apparent that the employer would not engage further in settlement discussions.
The Employment Tribunal proceedings
Claims were issued for:
- Harassment
- Automatic unfair dismissal
- Detriments for making protective disclosures
- Victimisation
The employer submitted a defence denying all claims – EF was a not a good cultural fit, they said.
EF had legal expenses insurance through her home insurer which meant that following the assessment of her case, having reasonable prospects of success, the legal fees were covered by the insurer.
The Tribunal process was straightforward. The parties both attended a case management hearing where the legal issues and directions were agreed for the management of the case to hearing. Following disclosure, various requests were made for specific disclosure, which were agreed without needing to make applications to the Tribunal.
Witness Statements were exchanged and finally we were able to engage in settlement discussions. With the hearing only 2 weeks away, the employer changed their mind about the strength of the defence and were willing to discuss settlement.
Thoughts on the case
This was a case that was always going to settle. Unfortunately because of an entrenched view on the employer’s side, they had resolved not to settle and it was only when it dawned on them that their practices would be scrutinised by a Tribunal Judge that they decided to make a reasonable offer.
EF had impressive resolve. Whilst her employment had been short and her prospects of finding alternative employment were good, she took the view that there was an important principle at stake and her former employer should confront their discriminatory practices. She received a payment of around 6 months’ net pay.
