It is in the nature what we do that you have to fight cases. A litigation practice would not be worthy of respect if at the first hint of a problem the white flag is waved.

A recent case in point was an employment dispute. It involved a woman who was dismissed from an admin role. She worked only for a month before being summarily dismissed allegedly because she lacked the capability to perform the job she’d been hired to do.

Even though she had worked for much less than the qualifying period of one year, we brought a claim the first part of which was settled the day before trial!

There are many points here of interest.

First: See you in Court! has to mean See you in Court! If you are not prepared to run the risk of losing, you also cannot win. In this case the employer would never have offered sixpence unless we have been prepared to make them face the Court.

Second: as with all cases, in the end it is the evidence that gets you the result.

The case that we brought was about discrimination. The Applicant was dyslexic and had some established psychological problems (depression). But it is not enough to just make the allegation that an employer has discriminated against you – whether on grounds of disability, sex, race, religion etc. It is for the Applicant to prove that he or she was discriminated against. The expression the lawyers tend to use is: the case turns on its facts. Documents are best. Independent witnesses are good.

In this case, the fact of the Applicant’s dyslexia and depression was written on a registration form. The employer denied knowing about either condition. This was despite emails from the employer to the Applicant arguing over the time for appointments for CBT (a treatment for depression) they denied knowledge of her depression, and despite discussions in the office about dyslexia.

Third: it doesn’t matter whether the employer is ICI or a sole trader with one employee. In this case it was a small solicitor’s firm – hence showing that knowledge of the law (which you assume lawyers will have!) doesn’t make for good employers!

Fourth: do not think this is about principle! Whilst it is good to fight for a just cause, however strongly you feel, if you don’t have good evidence you case will fail.

Fifth: it is all the rage in the law to talk about Alternative Dispute Resolution (ADR). The Courts themselves criticise lawyers for bringing cases too early or too aggressively. The Government lambasts lawyers for nurturing and exploiting the claims culture. The tabloids point the finger of blame at lawyers who do it all for the money.

In the end, the pointlessness of headlines are clear. If you don’t fight for the legal rights that the law gives you, you will be used and abused by those who do have the power. Whilst negotiating a settlement is ideal, often it is only by making proper use of the Court process that negotiations happen at all.

Article posted on Friday, February, 11th, 2011 at 12:49 pm

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