Friday August 2, 2013 at 3:04pm
As many of you know the Government has just introduced legislation which introduces court fee regime and a cap on claiming unfair dismissal.
With respect to the fees, the fee has risen from free to £160 or £250 which depends on the type of claim.
On top of the issue fee, a Claimant will also need to pay a hearing fee on being provided with details of the hearing, when, depending on the type of claim, the fee will be either £230 or £950.
So, anybody wishing to pursue a claim for Unfair Dismissal or a Discrimination their complaint will need to pay an issue fee of £250 and, if their case proceeds through to listing, a hearing fee on top of £950.
There is a (complicated) scheme for remission of all or part of the fee payable for those with low incomes, and applications for remission can either be made at the time the fee is payable, or, (after payment) to seek to recover all or part of that fee as paid.
With respect to the cap on unfair dismissal, for any dismissals which takes effect on or after 29 July 2013 the cap on the compensatory award is the lower of £74,200 or 52 weeks' gross pay.
Dismissals for whistle blowing or related to certain health and safety reasons remain uncapped as do dismissals relating to unlawful discrimination.
52 weeks' gross pay for the purposes of the statutory cap excludes pension contributions, benefits-in-kind and discretionary bonuses.
On the face of it, these two changes(together with the decision to increase the qualifying time for the right to claim unfair dismissal to two years) will lead to a reduction in Clamants’ issuing claims and less clogging up of the Employment Tribunal system.
This is what the Government thinks. Trade Unions are shocked and seek to legal challenge.
Frankly, I disagree. I think this legislation will not really reduce the case load of the Employment Tribunal system. In fact it will increase it.
Dealing with the Court fee, yes there may be a short time decline in the number of Claimants as they contemplate issuing legal proceedings, but most claims are settled pre-issue of claims anyway.
Furthermore as there is in the general civil market you will see insurance companies offering to individuals insurance products which cover the court fees and a possible slice of damages.
No doubt this will be marketed by the insurance firms/lawyers and attract more possible Claimants to the market.
An increase of court fees may get rid of some of the vexatious Claimants but these are few and far between, Not much change is going to happen.
The reason why the Employment Tribunal system is so clogged up is because so many employers continue to hash up dismissing someone and workers are much more inclined to sue.
Furthermore, law firms are continuing to adjust their business model(not just charging on the hourly rate) and this trend will continue as they make their services more appealing to Jo Public..
Regarding the cap on losses claimed, this will impact few Employment Tribunal claims. A potential Employment Claimant is under a duty to minimise his or her losses and very few claims when they go to trial allow a Claimant to receive more than a year’s losses.
Claimants can attempt to hike up claims by claiming legal costs and/.or pursuing non capped claims like whistleblowing or discrimination. Claimants may be more likely to puruse personal injury claims in conjunction with Tribunal claims.
Frankly it will make my job easier to know that that the maximum a client can obtain is one year's losses. It gives me more certainty when i advise the client as to what he or she can recover.
Monday May 13, 2013 at 10:12am
If you have been involved in an accident that was not your fault
, there are two possible routes you can try in order to receive compensation for what happened and for your injuries. The first option is to lodge a claim for compensation through a solicitor
experienced in this process. This may or may not result in a court case, depending on how easy the claim is to prove and agree on. The second option is to go through a personal injury mediation process. This has been successful in many cases where it has been used, but not in all cases.
How to prepare
If you decide to go for the second option, it is vitally important to make sure you are fully prepared. At this point you should have a solicitor acting on your behalf, so it is wise to discuss the situation with them before going into the mediation process. This will help ensure you get the best chance of achieving the best possible outcome. Preparation is an important step because you should think about what the ideal outcome would be if you could come to an agreement at the mediation process. If you go into the meeting unprepared, you won't have any idea of what a good outcome would be, or what an unacceptable offer would be.
How much compensation?
Your solicitor will also be able to use their wealth of experience to discuss the best possible outcome in court. While you are hoping to avoid going to court, it is important to know what could happen if you won at this stage. Let's say for example your solicitor says the best case scenario at court would be a payment of £25,000. He may also say the likely scenario would be receiving a payment that was more in the region of £20,000. If you went into the mediation process and you were offered £19,000, you would be likely to take it in order to avoid the court process and the length of time that would take. However, if the other party was prepared to offer no more than £10,000, you would very likely refuse to take the money. This would result in an increased possibility of the mediation process breaking down and leading to the inevitability of a court case after all.
As you can see, it makes sense to prepare by knowing what the minimum you are prepared to take in compensation would be - before you walk into the meeting. This gives you a framework to stick to, instead of feeling as if you weren't sure what to accept or which offer was good enough. Of course, while we have mentioned compensation in terms of monetary value here, there may be other forms of compensation you wish to ask for. This could depend on your situation and how badly you were injured. In any case, the most important thing is to discuss all the options with your solicitor prior to entering into the process. Finally, remember you always have the option of backing out of the process if you are not happy.
Thursday May 9, 2013 at 9:45am
No one wants to suffer a personal injury as the result of an accident, negligence
on the part of someone else or for any other reason. Neither does anyone want to be the cause of such an injury to someone else. While both parties in this situation will be standing in very different shoes, they do have some things in common. They will both feel very emotional and the idea of a prospective court case to settle the situation won't help matters. Furthermore, both parties will very likely want to get everything settled as soon as possible, so they can continue with their lives. This is where personal injury mediation can come in extremely useful. It exists as an alternative to going to court, and provides an opportunity to come to an agreement over how to resolve the issue of compensation.
Is a mediation process really non-confrontational?
The whole idea of a personal injury mediation is to get both parties around a table, together with an experienced and fully trained mediator. This may not sound particularly non-confrontational: after all, you will be sitting with the other person involved in the dispute! However, let's look at this in a little more detail. If you were to proceed with a court case, you would not be able to speak directly to the other person involved. In the case of a mediation, you would be able to have a conversation with them and add the human side of things to proceedings.
Imagine you are the injured party, for example. It may be that the person who caused your injury has not considered the emotional and physical impact it has had on you. The ability to be able to sit round a table and discuss the situation together, with the assistance of a mediator, can lead to a much more enlightened outcome. Even if a claim is settled through court, bad feelings can still persist over the situation. These are feelings that could be resolved through the act of mediation.
Can this non-confrontational process lead to a faster conclusion?
Yes, often it can. There is no need to wait weeks or even months for a court date. Instead, you can arrange a personal injury mediation if both parties are agreeable to try it, and you can attend a meeting very quickly, indeed at a date and time suitable for both parties.
Legal experts such as www.Claims4Negligence.co.uk
advise that mediation is best reserved for claims that are relatively simple, rather than those that are incredibly complex. However, if your claim is straightforward, or you are involved in a case where someone is making a simple claim against you, it is wise to consider taking part in the mediation process. The outcome could be easier than you think, and it could lead to a faster solution that enables everyone to get on with their lives. This could be said to be the personal way to resolve an issue that has led to this point. It has to be worth trying, doesn't it?
Thursday May 9, 2013 at 9:33am
If you suffer a personal injury that was caused by the actions of someone else, you will probably consider the idea of claiming compensation for your injury. Unfortunately, this sounds a lot easier in writing than it can be in reality. While we often hear about court cases being brought against people who have allegedly caused accident and injury to others, we don't tend to hear much about personal injury mediation. Indeed, unless you have already done a lot of research into the idea of bringing a compensation claim following an accident you didn't cause, this may be the first time you have heard about mediation.
What does mediation involve?
The idea is to get the parties involved in the situation to come together to find a logical and fair conclusion to the situation. This means three parties will be present: the injured party, the party who allegedly caused the accident and the mediator. It is the job of the mediator to act as a go-between. While this might sound unusual and very different to what you might have imagined, mediation has been shown to be a highly successful way of resolving many personal injury cases.
What can you expect from this process if you are the victim?
As the victim in the situation, the mediation process will allow you to give your point of view as to what happened. You can discuss your injuries and how they have impacted your life. As such it puts a human face on what has occurred. The person who caused your injury will not just think of you as someone with, perhaps a broken arm, they will see you in person and gain an understanding of how you have been affected since the accident took place.
What can you expect from this process if you caused the injury?
If you know you caused the personal injury to the other party, you may find the meeting awkward and stressful to attend. However, there are some distinct advantages in doing so. You can prevent a full blown court case from taking place, by being able to talk through the idea of compensation and settling on an agreeable outcome to the case. If you have a business to run, you can also prevent the case from getting into the press, protecting your business in the future. Taking part in a mediation also shows you are willing to settle the case by talking things through with the injured party, with the assistance of the mediator. As you can see, this process can be enormously beneficial to both parties.
Many people have gone through a personal injury mediation process with great results. If you are involved in this kind of situation at the moment, perhaps it would be beneficial to consider trying this mediation process if the other party is agreeable to it. You may find it is the best possible way to resolve the situation without resorting to going through the courts, which can involve additional stress for everyone concerned.
Friday May 3, 2013 at 3:31pm
If you are considering opting for a personal injury mediation
, you will probably be aware that many cases turn out positively for all parties involved. However, this is not the case in every situation. Indeed, there are some potentially negative outcomes that can occur, and it is wise to be aware of them before you decide to give this process a go. Here are the most common negative outcomes that can arise from this process.
Both parties fail to reach a suitable agreement
This is the most obvious negative outcome from the process. Even though both sides go into the process hoping to resolve it without the need for a court case, you may have a very different idea of compensation
to theirs. The idea of mediation is to meet in the middle, but this is not always possible or realistic to achieve. When you go into the process, it is wise to keep in mind this could be an outcome. It is sometimes better to be unsuccessful than to get a poor deal.
If mediation is unsuccessful, you have wasted your time
If you decided to give mediation a go and it did not end in an agreement both parties could live with, you would have to go to court, as indicated above. This can be doubly frustrating, as you will have gone through the mediation process with the specific idea of avoiding a court case. You now have to go back to the beginning and arrange for the case to be heard in court via a solicitor. You may realise that if you had done this to begin with, you would be further along the road towards completing the case than you are now. However, if you are the person seeking a compensation claim from the other party and you cannot get what you want via the personal injury mediation process, it can be better to hold out for court. This could mean you get what you want in compensation, rather than agreeing to a far lower sum than you could otherwise seek through a solicitor.
You may realise striking a deal is not as easy as you think
While some mediation processes are relatively quick to resolve, others can take time. However, this does not mean your mediation process will be unsuccessful. In reality, this is not necessarily a negative point: it may simply highlight the fact you have not thought about the situation in a realistic manner.
If you are able to focus on what may or may not happen prior to the personal injury mediation process, you could find this less of a negative outcome than you previously thought. In the end, it makes sense to be realistic about the process before you embark on this type of mediation. The potential negative outcomes may be reduced if you can do this, even though you won't be rid of them entirely.
Thursday May 2, 2013 at 11:15am
If you are considering taking part in a personal injury mediation, either as the person seeking compensation or the person who could be paying it, law firms such as Claims 4 Free
offer advice on how to approach the process. Firstly, it is very important to prepare for the meeting correctly. All mediation services operate in a slightly different way, so the first step should be to find out exactly what will occur in your particular situation.
When you consider agreeing to this process, you should ask the mediation service
exactly what you should expect. How will the meeting proceed? Will you be greeted independently of the other party taking part? Will both parties be welcomed into the meeting together? What happens during the average meeting?
Above all else, you should remember you are never going to be forced to do anything or answer anything you don't want to get involved in. Mediation provides both parties with the ability to get together and discuss the process and the situation they have found themselves in. However, the entire process is voluntary, so you always have the option to depart the meeting or to refrain from answering anything you are not sure of or unhappy with.
Be prepared in advance
This is one of the most important aspects to think about if you are preparing to go into mediation. This holds true for before you go into the meeting. Think about what you would ideally like to claim in compensation, if you are the injured party. If you are the one who caused the accident, consider what you would be prepared to pay in compensation. There will obviously be a difference between the two figures arrived at by the two parties, but the purpose of mediation is to arrive at a solution both are happy with.
It can be wise to go through the potential outcomes of the meetings before you go in, so you have an idea of what you would be happy with and what you wouldn't accept. Even if both parties come to an agreement during the process, you still have to get a legal agreement signed for it to become fact.
Know how you want the meetings to proceed
There are different types of mediations that can occur, depending on what each party is prepared to agree to. For example, private meetings will occur on the same premises at the same time, with each party in a different room. In this situation, the mediator will go between the rooms and mediate between each in turn. Another option is to go for joint meetings, which are exactly as they sound. This situation requires both parties to be together in the same room, with the mediator facilitating the discussion between them.
It also helps to be realistic about what could be achieved during the meetings. It is wise to remember you do not have to agree to a decision if you do not feel happy about it. However, while some mediations do not result in an agreement and do end up going to court, many others (the majority, in fact) are successful. Yours could end up going the same way.
Wednesday March 13, 2013 at 4:19pm
An interesting piece today in the newspaper reveeals that the Guardian columnist, George Monbiot has reached a somewhat unusual settlement with Lord McAlpine further to false Twitter messages by Mr Monbiot which had accused the former Conservative chairman with an allegation of child sex abuse.
Let us deal with the settlement. This will involve Monbiot carrying out work amounting to £25,000 to three different charities with an emphasis on groups helping dispossessed or abused children. The settlement idea came from Lord McAlpine's lawyer, Andrew Reid.
The actual settlement is very interesting at a number of levels.
1. The only reason why such an offer is in play is because George Monbiot showed a far higher degree of humility than say Sally Bercow(the Speaker's wife) who also made tweets against Lord McAlpine. The conduct of the parties is integral for determining if a face saving settlement can be reached. Sally Bercow is now facing legal action which is of course her right to defend, but I do wonder if she would prefer to be doing a deal with Lord McAlpine. My advice to her would have been to show the level of contrition done by Monbiot.
2. The lawyer, Andrew Reid and his client(McAlpine) have applied mediation skills, thinking outside the box for a solution which is positive and face saving for all sides. McAlpine has to be careful in such circumstances as there is a thin line between protecting ones position and acting for revenge. He is clearly well advised and knows when to draw the line.(e.g when to sue/ when not to). This deal done could not have been ordered by the Court.
Wednesday February 6, 2013 at 1:01pm
Dispute resolution is a process used to solve disputes between various parties and can include litigation, mediation and many forms of negotiation.
Dispute resolution generally falls into one of two categories; litigation or negotiation (or mediation). The litigation process leaves the outcome of the dispute to a judge, whilst the negotiation alternative involves parties trying to reach an agreement out of court.
Occasionally a dispute may not end in a resolution, but most do, as it is in the interests of the parties concerned that the issue is resolved, leading to closure.
The legal system plays an important role in managing disputes, and offers a structure which is in place to provide resolutions. Many people choose the professional route when they find themselves embroiled in a dispute, particularly when the threat of legal action or legal rights or wrongdoings are involved.
Litigation is when a party files suit against another party. Factual questions and evidence will become central to a litigation case in a court of law and an impartial judge/jury will decide upon the appropriate resolution. Appeals can be made after the outcome by either party and this will mean the case proceeding to a higher court.
The nature of litigation makes it adversarial, as it involves parties seeking an outcome to suit themselves and to oppose the other party concerned in the dispute.
Mediation and negotiation is often chosen as an alternative route (known as ADR: alternative dispute resolution). The parties must agree to use mediation or negotiation before or after the dispute has come to light. Because ADR is flexible in its approach and tends to lead to more amicable resolutions, it has become increasingly popular among people. It is also more cost effective than traditional litigation methods and can be carried out quickly.
Occasionally, dispute resolution can be carried out online, using new technologies between parties. This is known as ‘ODR’ and it uses the more traditional resolution methods to disputes but in an online environment.
There are many different types of disputes, requiring resolutions in a variety of methods.
Boundary disputes may typically involve a chartered surveyor to examine land boundaries between neighbours in an objective manner.
There are also a number of rural disputes, concerning agricultural tenancies and leases, and these can become quite complicated, requiring dispute resolutions and involving highly trained chartered surveyors who understand all the problems that can arise.
Construction disputes are common, as the construction industry is viewed as being claims oriented and therefore a breeding ground for conflict among parties.
Whatever the nature of the dispute may be, the focus should always be on resolving it in a quick and economical manner with the least risk involved as possible.
Expert dispute resolution teams aim to help individuals and businesses understand all the options before proceeding and to guide them through the best strategy for them.
Court action may not be appropriate, and therefore mediation will be an option offered in some cases of dispute resolution for claimants.
Friday February 1, 2013 at 2:54pm
When you suffer a personal injury, there are issues such as liability and causation that might make your case more difficult to resolve, as well as any emotional stress you could be suffering from. Mediation
can provide an effective alternative to resolving disputes of this nature and is a proven method for reaching settlements.
Defendants and claimants meet together with their mediator in a safe environment and discuss the accident through round table negotiations. This provides a creative atmosphere in which to discuss solutions that venture beyond the financial issues involved and can really benefit all parties concerned.
Mediation will usually result in swift settlements, which is an obvious advantage, but in addition to this, claimants feel an overall sense of closure about their accident and the claim. This closure would be much more drawn out and stressful in court cases through difficult litigation issues.
Mediation teams for personal injury claims are highly experienced in this field and will dispute your claim with confidence, as they will have actively resolved a number of personal injury cases over the years. Mediation benefits
The benefits of mediation are that it is a highly flexible process involving a neutral person who assists parties towards negotiation in the dispute, but the parties have the control of the outcome and the settlement of the resolution.
Mediation is highly confidential by nature. It is a voluntary process, however if a party refuses mediation, this can lead to cost sanctions later in court. Courts themselves encourage mediation for parties involved in a difficult dispute over a personal injury claim.
Parties are able to mediate before proceedings, or during.
Anything said during mediation is inadmissible as evidence in court proceedings, meaning that the process is without prejudice.
Once a settlement is reached through mediation, it is legally binding as soon as it is written down and signed by the parties concerned.
Mediation tends to be cost effective when compared to the litigation process
, and can be arranged quickly for convenience. Most mediation sessions will only last for a day or two before agreement is reached.
You have the option of placing the litigation process on hold while you enter into a mediation process, or it can run alongside the litigation process.
Because of its objective nature, mediation tends to foster business relationships and help to maintain them more than the alternative process.
Mediation offers a wide variety of options for settlement, extending beyond financial resolutions.
Professional mediators will also generally be able to offer mediation meetings for resolving conflict within the workplace and for consultancies, and they can work with managers and various teams to coach them through business changes.
Mediators can offer services to a wide range of clients, including private individuals, the UK public sector, international businesses, hospitals, care homes, clinics, employers and insurance companies.
If you are involved in a personal injury claim and are interested in the process of using mediation to resolve it, contact a personal injury mediation team today
Monday January 14, 2013 at 10:15pm
So, HMV is heading towards insolvency and is appointing an administrator.
This is sad for many of us, as we were brought up on the HMV brand.
Like so many others, I have fond memories as a teenager going to HMV in Piccadilly and browsing and buying CDs (or its equivalent) and videos and latterly DVDs. No matter, irrespective of the attachment to the brand, it seems that HMV is victim to its inability to adapt to changing times and the continued power of the internet with its downward pressure on price. Frankly, this is not too relevant for the 4,350 odd staff that faces an uncertain future.
The question perhaps for them, are what are their legal options as administrators bid to do what they see is best for the company?
The Objective of Administration is Positive
It is perhaps important to recognise that whilst the process is extreme, administration is designed to retain the business as a going concern, so that those who are owed money can be paid and the business can remain viable.
The Reality Means Staff Will Go
It remains unlikely that HMV will remain fully intact and just look around, employees are very often amongst the first casualties in an insolvency type situation. You only have to look at the position with Jessops who have announced all staff will go with 1,300 job losses. Generally, in an effort to streamline a business and prepare it for sale, the administrator will be looking carefully at how to reduce overheads and that could well result in terminations.
The Next 14 Days are Critical
During the 14 day period if dismissal occurs, employees fall much further back in the creditor's queue and could end up with little or nothing. So it is in the administrator's interests to speedily eliminate any costs or liabilities that they feel the business can do without in the short term. After that period is finished, any wages or other remuneration accrued but unpaid have a greater chance of being as the employees become what is known as "preferential creditors".
Therefore, despite the risks of not being paid, staff should still go into work.
Staff can claim for all your outstanding pay from the insolvency practitioner. There is no guarantee that the full amount they are owed will be paid as this depends on whether enough funds are raised from the sale of the employer's assets.
Some debts, including holiday pay and wages, will be 'preferential debt' when your employer's assets are shared out. This means they must be paid before certain other debts.
If there are still monies due to staff, as a back -up, employees can still make claims to the National Insurance Guarantee Fund.
These claims are for:
•wages - up to a maximum of eight weeks
•holiday pay - up to a maximum of six weeks
•compensatory notice pay - one week after one calendar month's service rising to one week per year of service up to a maximum of 12 weeks (new earnings will be taken into account)
There is a limit of £430 a week on the amount they can claim for weekly pay.
If Employees Still Survive There is Some Hope
For those that do survive the initial period and find themselves being transferred across to a new employer, there is hope. Terms and conditions of employment will generally be protected as a consequence of the Transfer of Undertakings Regulations ("TUPE").
Nevertheless, it is possible that contracts may be varied to a degree, where an administrator feels that changes are necessary to safeguard the survival of the business. However this would not be standard TUPE transfer, which makes changes unlawful even if everyone agrees to them, "permitted variations" are possible in the more extreme circumstances of an administration.
So employees and their representatives may find themselves under some pressure to go along with changes.
If the business is sold to someone else, their employment rights are protected, including any pay that is owed to them.
Therefore perhaps the motto “Keep Calm and Carry on” is appropriate for this situation, at least for the next 14 days.
Justin Patten,Employment Lawyer