Is the offer fair?

Is the offer fair?

Being able to identify and assess any claims that you may have, and their individual strength / value requires expert legal knowledge, which we have.

We will want to know the background details and to speak or meet with you to do so. Alternatively, you can prepare a detailed chronology setting out the main factors that you believe impact your claim, as this can help speed up conversations/meetings with your solicitor and keep your legal fees to a minimum.

When advising, we can often identify claims of discrimination, but given how complex they can be these are often missed or misunderstood by individuals. If you have a complex claim, such as, discrimination or whistleblowing we will be able to identify those and explain to you in plain English; how those claims work, the strengths and weaknesses of your claims and their likely value.

Only once you fully understand the claims you have, their strength and likely value can you make an informed decision about whether the offer is fair. We will also highlight the risks and negatives of pursuing litigation, that you should also consider.

When trying to understand if your offer is fair, several aspects come into play. While there is no set formula that applies to everyone, numerous factors will be considered by us as expert employment law solicitors, including:   

1 The process your employer has followed. 

If your employer has followed a fair process and has reasonable grounds to terminate your employment, then your main claim of unfair dismissal may come into play, but is unlikely to be strong. Whereas, if your employer has not followed a fair process, that can be used to argue any dismissal is unfair.

You need two years’ continuous service in order to claim ordinary unfair dismissal. No such service requirement applies if your claim is for discrimination or whistleblowing. In addition, claims of ordinary unfair dismissal carry a maximum award of the lesser of one years’ pay or approximately £85,000.

By offering you a settlement agreement, your employer is looking to avoid all the procedural steps it ought to follow and, therefore, there is benefit to it in reaching agreement with you.

2 If you have another job. 

If you have managed to secure alternative work (whether employment or self-employment) and assuming the remuneration is commensurate with your former role then you’re in a strong position to secure a windfall payment. 

The reason for this is that Employment Tribunals award compensation based on ‘loss of earnings’. If you have another job you will suffer no loss of earnings, so there is little benefit in rejecting the offer and pursuing a claim before the Employment Tribunal.

However, simply because you have secured another job does not mean there is no scope to negotiate and improve terms; it’s just you carry much greater risk in doing so. If you negotiate you are rejecting the offer and your employer could decide to either not restate that offer or make any other offers.

While it is uncommon for this to happen; especially where you are careful in your request, you need to balance the certainty of securing the terms against the risk that the offer could be withdrawn.

If you have a job offer and want to negotiate, you should seek employment law advice from us. We will advise you on how that negotiation should be structured and presented, as we have lots of experience and expertise in advising people in this exact situation. 

3. How long it will take you to find another job.

If you are confident that you will find another commensurate role, then that may make it easier to decide to accept terms with your employer.

If you are not confident that you will secure new employment and quickly, this will be a factor when valuing your claims and, therefore, the amount you seek as compensation.

Tribunals generally appreciate that those who are closer to retirement are likely to struggle to find alternative work. Equally, it also accepts that those with obvious disabilities may suffer prejudice as may those returning form maternity leave; making it harder for them to secure a new job. 

Equally, there may be other reasons why you struggle to find a job. You may have less obvious disabilities that hinder your job search. Unfortunately, we have experience of cases where an employer’s behaviour has a negative impact on a person’s health meaning that they need time to recover before being well enough to look for a new job.  

Other considerations may also need to be considered, such as, the industry in which you work, the current economic climate etc. 

The basic position is that if you will struggle to find another job and have a good claim, the value of your claim could be higher, as Tribunals award compensation based on your actual or predicted loss of earnings. Therefore, if your losses are likely to last for a long time, you stand to recover more compensation (assuming you win your claim), and this should impact the terms you agree.  
 

4. Reductions in compensation 

When an Employment Tribunal awards compensation, your employer will generally argue some (or all) of the following:

That you contributed to your own dismissal. This tends to occur where the reason for dismissal is poor performance or misconduct and there has been some (mis)conduct on your part that justifies dismissal or disciplinary action. If it agrees, the Employment Tribunal may penalise you by imposing a percentage reduction if it feels your performance or conduct contributed to your dismissal. The percentage reduction will reflect the extent to which the Employment Tribunal agrees with your employer.

If there has been a failure to follow the ACAS code of practice, the Tribunal can decrease (or increase) your award. This only applies to disciplinary and grievance issues. The adjustment can be up to 25%. If you have, for example, failed to raise a grievance or if you do not engage in your employer’s disciplinary procedure, that can see a reduction in any award of up to 25%.

That you have failed to look for another job and mitigate your loss. You are under a duty to do this and, if you fail to do so, the Tribunal can reduce your award accordingly. Typically, your employer will provide evidence of available roles that you could have applied for. If your job search is limited, the Tribunal may well penalise you for that, and this could result in a finding that your award is limited to a period of time being the time which the Employment Tribunal believes you would have found work had you undertaken a proper search.

Lastly, that your dismissal would have happened in any event. This usually applies where your employer has not followed a fair procedure. If so, an Employment Tribunal may be persuaded that your award should be minimal; e.g. two to four weeks’ pay, because the outcome (your dismissal) is correct; it’s just your employer failed to follow a fair process.

5. Your appetite to fight 

One thing your solicitor should interrogate, is whether you are committed to pursue a claim. We always highlight the negatives of litigation, to ensure those clients who commence a claim know what they’re getting into. We are yet to act for a client who is keen to sue; most people want to be treated fairly, leave with their reputation intact and amicably.

In our view, no solicitor should encourage you to litigate or take unnecessary risks if you do not want to.

6. Your ability to make a good witness. 

Your solicitor should also interrogate how you may present as a witness. Cases are won and lost as a result of how a witness performs, so if you are unlikely to make a good witness, for whatever reason, you should not be encouraged to litigate.

7. Stress

Over the years, we have advised many clients who decide to commence legal proceedings, but they often run out of steam fairly quickly. The Employment Tribunal process itself is very involved; it requires a lot of your time, effort and energy and, given the risk involved, it places a lot of stress on you. This aspect, in our opinion, cannot be underestimated by you.

8. Cost

Engaging in litigation is costly. If you privately fund your claim, your legal fees will rack-up quickly, and the more complex your claims the more it will cost you. In addition, if lots of witnesses are involved that too will have an impact on the amount of time and preparation that is needed, and which will only serve to increase your legal fees. 

Solicitors are now required to publish their expected fee range for certain types of Tribunal claims, so it’s worth looking at this information when deciding who to instruct. However, as the saying goes; you get what you pay for, so the cheapest may not be the best. 

We believe you should try and find an employment solicitor based on local recommendation. Any solicitor should be willing to spend time speaking with you to understand more about you and your claim - before taking you on as a client. Ask around and, if a particular name keeps being mentioned, it’s probably for a good reason (you want a person’s name, not the name of a firm).

There are other funding options you should be informed about and which can help limit the impact of costs. You may have the benefit of ‘legal expenses insurance’ on an insurance policy (typically house insurance and also known as ‘family legal protect’). Here, your insurer may agree to cover your legal fees to pursue a claim. It will recommend one of its panel law firms, but, please remember that you do not have to use the insurer’s recommended law firm; you have freedom of choice to use any solicitor you want. We often take on cases where the client is insured, which simply means we get paid by the insurer, not you and you can access our specialist legal advice and services without cost.  

While not common in employment litigation, you may be able to secure a ‘no-win – no-fee’ arrangement. Here, your solicitor is only paid in the event of a successful outcome. Again, we will consider such an arrangement, so please speak to us about this option. 

You may have the benefit of being in a union. If so, that union should be willing to support and fund your claim.  

Lastly, if you are cannot afford a solicitor, you can pursue the claim yourself or you may be able to get free advice from places like your local citizens advice bureau or certain charities that fight for particular rights (usually related to discrimination).  

9. Risk

As well as being costly, litigation is also risky. If you sue your employer, there is a chance you may lose. If you are paying your own legal fees and lose, you may end up with no compensation; just substantial legal costs. 

In the Employment Tribunal, the cost position is more favourable compared to the County Court. If you lose your Tribunal claim, you should not have to pay your employer’s legal fees; unless the Tribunal believes you have behaved vexatiously, scandalously or unreasonably. 

Litigation is uncertain. If you have a strong claim and win, there is risk that you may not be awarded significant compensation. If your compensatory award is less than your legal fees, you will be out of pocket.

Even if you are successful at a Tribunal, that may not be the end of the matter. Your employer may decide to appeal the Tribunal’s decision, which will mean more stress, cost and delay.

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