If you’re trying to settle your ET case, your former employer (or their lawyers) may say something like ‘This is our final offer.’
This may be true. Just possibly. But don’t take it at face value. More often than not, it’s just a negotiating tactic. Even if they say ‘This is absolutely and definitely our final offer, Hell will freeze over before we pay you a penny more,’ it may well still be worth seeing if you can squeeze them up a bit.
(If you’ve ever dug potatoes, you’ll know that a similar rule applies: when you think you’ve finished a root, there are in fact always two more. Just try not to spear them on the garden fork.)
Sometimes – if the allegations are important or salacious, or high-profile individuals are involved, or the legal issues are far-reaching – the Press will show an interest in an employment tribunal case. Most hearings are public, so reporters may be present whether you want them there or not.
Should you talk to the Press?
There is no one-size-fits-all answer to this question, but it is a good thing to have thought and made a decision about before it arises rather than making a snap decision when you are telephoned out of the blue or approached in the tribunal waiting room by a reporter.
The first point is that there is certainly no reason why you should answer any Press questions if you don’t want to. If you want to think and/or take advice before you answer them, you can tell them that. But a polite but firm ‘I’m sorry, I don’t want to talk to you about my case’ should end the matter.
The main practical impact of Press interest will be on negotiations. If the respondent is sensitive to publicity, a degree of Press interest may encourage them to make an attractive offer in the hope of getting you to sign a confidentiality agreement. On the other hand, if you say too much to reporters while negotiations are in progress, and there are widespread news stories as a result, you risk making your employer think that they don’t have much more to lose – and that could damage your negotiating position.
If in doubt, it is probably best to say nothing: putting information into the public domain is easy; getting it back is impossible.
If the claimant and respondent in an employment tribunal case are going to negotiate, the time they are most likely to do it is in the last few days before the hearing.
This is also the time when final preparations for the hearing need to be done. By the last few days before the hearing, you should have agreed a bundle and exchanged witness statements, and you will be about to start familiarising yourself with the bundle and doing your final preparation for the hearing. If the bundle and witness statements aren’t in place by this point, you’re badly behind already and need to work fast.
This creates a dangerous pit-fall. Negotiations tend to take on a momentum. There often comes a point where, although you don’t yet have a deal, both sides are pretty sure that it is only a matter of time and a bit more haggling until they do. It is terribly tempting when that point arrives to put preparation on one side on the assumption that the hearing is not now going to happen.
It’s a good temptation to resist. Negotiations can, and sometimes will, come horribly unstuck at a very late stage on a point that no-one had realised was important until it was raised. In particular – this is a common mistake among representatives – don’t underestimate the importance of the non-financial terms of the settlement. It is easy to sit back with a sigh of relief once a sum of money has been agreed, only to find that you can’t agree on the terms of a reference, for example, or the wording of the confidentiality clause, or the question who is responsible in the event that there is any tax to pay on the settlement.
If you are badly behind in your preparation, try, so far as you are able, not to let the other side get wind of the fact. If they know that you’re now hopelessly ill-prepared for the hearing, it follows that it will be a disaster for you if the negotiations break down. You might as well admit in a game of poker that you’ve got a very weak hand.