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MissCommando | 23:02 Thu 02nd May 2013 | Civil
8 Answers
My husband has an employment tribunal coming up this month for disability discrimination and constructive dismissal. Statements have been exchanged and we have received a letter from the other side offering a hands down agreement with no compensation offered. Are we right in thinking these are bully tactics? They claim that compensation for loss of earnings should be zero as he has been claiming ESA since resigning. Does this sound right?

Hope you don't mind me asking but just wondered what you opinions were. No worries if you're unsure.

Thank you.

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I can't answer you from any knowledge base but it doesn't sound right to me - if he's claimed ESA it's only because he wasn't able to earn. By that calculation they could argue that if he gets payment in lieu of dismissal, he'd have to pay back the ESA. I could be completely wrong, interested to know what others understand from this situation.
I'm not sure either but I think the other side's argument has flaws. The argument could be used to justify any constructive dismissal on the basis that they person received JSA etc afterwards.

If the dismissal was unfair then I suggest the DWP should be able to claim the ESA money back from the employer. That may not be the case in law, I don't know, but it'd seem fair to me.

Anyway, is the ESA equal to the salary she was getting?

There is a constructive dismissal calculator on line somewhere. I think it includes other elements too
I do not know the strength of your argument but the other side appear rattled, many employment claims to an Employment Tribunal are settled before the Tribunal, I suggest you have a realistic sum in mind that you will settle at and accept if this is offered but in the meantime prepare for the ET and make sure the other side know you are proceeding.
The Disability Discrimination Act 1995 states:
“a person discriminates against a disabled person if (a) for a reason which relates to the disabled person’s disability they treat them less favourably than they treat or would treat others to whom that reason does not or would not apply and (b) they are unable to show that the treatment is justified.”
One word of warning make sure the amount that you are prepared to settle for is realistic, if it is too high there is little incentive for the other side to settle and the offer may came very late, the day before the ET is not unusual.

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Thank you so much for the answers. He phoned a legal advice line earlier and the Solicitor laughed at the cheek of the company for not even offering to cover his 3 month notice period.

She thinks he has a very good chance of success in his claims and thinks that on the ESA part, he will win the argument as had he not been forced to resign, then he would have still been fit to work from home.

He is representing himself so fingers crossed. Will keep you all posted.
The other side are clearly rattled but the important thing will be to know when to settle and accept what they offer, I have known people awarded a sum below what was offered in settlement, do not let this happen to your husband. Please let me know the outcome I will look at the end of the month, good fortune to you both.
Do bear in mind that state benefits can be recouped from Tribunal awards to prevent people from double benefit (both any award for loss of earnings and receiving benefit.
Checked at end of month but no outcome listed.
Checked again but no outcome listed.

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