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For some years Abraham, Martin and John worked in the accounts department of a medium-sized public authority that had been subject to quite severe financial constraints. Barring Abraham whose last annual appraisal was inexplicably favourable, over the years, their standard of work was at best considered to have been barely adequate. They were the subject of repeated written warnings, had poor attendance records and were considered by many of their colleagues to be disruptive influences.
On top of any previous concerns the three co-workers were recently discovered to have been downloading wholly inappropriate material from their work-based PCs during office hours hence them being summarily dismissed for what their dismissal letters termed “gross misconduct”. On the face of it appeared that the authority had acted quite correctly and it was thought that the possibility of unfair dismissal proceedings was remote. However, the investigative process that was implemented was in some respects deficient. Also, on at least two occasions prior to their dismissals, a senior manager spoke very inappropriately to Martin and John.
Unbeknown to the authority, all three of the dismissed co-workers had previously taken out legal insurance policies with different companies and were therefore able to instruct solicitors to issue unfair dismissal proceedings in the Employment Tribunal. In their statement of claim, as well as mentioning the senior manager’s conduct and the defects in the investigative process, they claimed that their alleged gross misconduct was consequent on the authority’s very lax managerial procedures which purportedly encouraged a culture in which their behaviour was allowed to flourish. They also contended that they were being scapegoated and Abraham highlighted his recent appraisal.
In the course of reporting to the insurance companies that now found themselves underwriting the three co-workers’ tribunal proceedings, the firm of solicitors that had issued the Employment Tribunal proceedings advised that even though their clients were by no means totally innocent, the authority’s procedures were deficient and that “a substantial award of compensation” could reasonably be expected.
At the outset, the authority had indicated that it would contest the unfair dismissal claims brought against it. Although its senior management was mindful that it could ill afford costly legal proceedings, it was concerned that any indication of willingness to compromise on its part will be construed as weakness. Equally, the authority was all too well aware that any form of settlement might encourage others to disingenuously take proceedings against cash strapped public authorities in the hope of extracting settlements.
As matters progressed, the correspondence between the parties’ solicitors became more and more confrontational. Even though it had been appropriately advised by its solicitors, the authority ignored any possible concerns about its own failings. Equally, Abraham and his co-claimants focused on these issues and some might say rather conveniently put to one side any considerations about their past conduct.
Some months after the tribunal proceedings were issued, a mediation was convened. It was facilitated by an Employment Tribunal judge and matters were resolved. During the mediation one of the authority’s senior managers stated that he would “lay his cards on the table”. He accepted that there were deficiencies in the authority’s procedures and confirmed that whatever else, there was no justification for Martin and John to have been addressed in an inappropriate manner.
However, during a mediation session in which all interested parties were present, this manager also made it abundantly clear that irrespective of any failings on the part of his colleagues, Abraham, Martin and John had behaved very badly indeed and that technical deficiencies aside, their dismissals were entirely warranted. He also emphasised that if the matter went to a public tribunal hearing, the full extent of their wrongdoing would be made public and that they would never ever be able to obtain any form of meaningful employment.
A full and final £750 per claimant, “take it or leave it” offer was put to the three co-workers. Because the manager was able to speak to them in a direct and forthright manner, they finally grasped that their former employers meant business and perhaps very sensibly accepted what was on offer. As one might expect, the judge who had facilitated the mediation maintained her neutrality but subsequently, in the course of assisting the parties’ solicitors to draw up terms of settlement she politely but firmly suggested that the modest nature of the settlement was wholly disproportionate to the huge amounts of time and money that had been expended and question why the case had been allowed to drag on for so long.
In the course of acting for the authority, its solicitors rendered a number of large bills. On top of this the authority’s senior management devoted considerable amounts of time to the case that could have been better used and because they were material witnesses, a number of its employees had to instruct their work in order to give statements to the solicitors. At a later date the authority was very heavily criticised by its auditors. At least two of its managers rather ruefully reflected that their subsequent annual reviews included very strongly worded criticisms.
The insurance companies who funded the employment tribunal proceedings on behalf of Abraham, Martin and John were also presented with a by no means insignificant legal bill. On top of this, a good deal of their managerial and clerical time was taken up in keeping abreast of matters, liaising with solicitors and ensuring that the requisite procedures were implemented and followed.
It could be said that what transpired was attributable to “the vagaries of litigation” or that because “even wrongdoers have rights” and “the law must take its course” that any perceived failures part of either managerial or insurance staff could be excused. However even a cursory analysis of what transpired clearly demonstrates that a number of interested parties including Abraham, Martin and John’s legal insurers could and should have “taken the bull by the horns” much sooner. They really should have used the very flexible medium of mediation to resolve matters, possibly even before the unfair dismissal proceedings were issued.
ASM Plus is committed to helping its clients resolve matters at the earliest available opportunity. We have the expertise and the acumen to help facilitate early resolution and in so doing save our clients thousands of pounds and hours of professional time that could be much better used.