Settling for More

Week 38 of 2024 shows us how the best redress for unfairness can in fact be OVERfairness – and why keeping a daily diary could be a life-saver…

To see how Sam Pepys spent this week 364 years ago, follow this link.

Just under a year ago, I met up with a friend of mine for a night out. They’d recently turned 60, and had looked full of life at their surprise birthday party the month before – but alone with me that little bit later, they looked like a traffic cone could beat them in a wrestling match.

Extracts from Sam’s original diary appeared on the walls of Pepys House this week – but was it writing on the wall for our Sam, or their former employer?

My friend – let’s call them ‘Sam’ – kept telling me everything was fine. But after drifting off and returning with a “Hmm? What?” for the sixth time in 30min, it was clear something was distracting them.

At last, I got Sam to open up. They had recently been put on “gardening leave” pending a disciplinary, following a grievance lodged against them by a fellow employee. The list of accusations was extensive and severe, and amounted to gross misconduct – but despite Sam’s profession of innocence, no colleagues had come to their aid.

Sam was therefore expecting to be booted out from a company they’d actually helped set up twenty-something years ago. After all, the correct term for giving someone time off while they’re under investigation is ‘suspension’. ‘Gardening leave’ is what you give someone just before they’re sacked.

“And it’s all because the new manager hates me,” Sam said. “Just like they hated the other two ‘oldies’. Seems you reach sixty and they don’t want you there no more.”

That was a serious accusation.

Sam nodded. “But it’s true. Just a coupl’a weeks before this grievance arrived, my manager actually said to me, ‘I don’t mean to be ageist, but are you sure you’re up to this job anymore?’ Fortnight later, and they’re leading the investigation into these allegations against me. You don’t need a time machine to predict whose side they’ll come down on.”

Sam explained how two other founding employees had been forced out by sudden vitriolic allegations from this same new manager. Both had suffered mental breakdowns as a result, and now this seemed to be happening to Sam.

But Sam had something those other two colleagues didn’t have.

Me.

Well, me and my sister’s amazingly helpful boyfriend, Alfie. Combining Alfie’s experience working in a solicitor’s office with understanding from my law degree – and my determination – we helped Sam resist the accusations made against them.

It wasn’t easy. For a start, the original owners of the company (who employed Sam in their days as a start-up) had sold up and moved on long ago – in fact, one of them is sadly no longer with us – and covid restrictions had resulted in a company structure that meant different departments worked entirely separately. The reason Sam didn’t have colleagues coming to their aid was mainly because few colleagues actually got to meet them.

Moreover, some of the accusations were quite serious. Most sane creatures would find the majority of them as close to gross misconduct as Alpha Centauri is to Mercury – for example, Sam was accused of asking clients for feedback after a job. I mean, they really thought that would stick as an accusation? Really?!

But other examples could indeed be seen as gross misconduct, such as a time that Sam had allegedly walked away when a colleague slipped over in the company car park and twisted their ankle.

“I genuinely didn’t realise they’d fallen,” Sam told us, “and if they called out to me, I didn’t hear them. As soon as the manager called to me, though, I was the one who fetched the First Aid kit!”

Alas, that colleague was the one making the grievance, and the apparently ageist manager was investigating said grievance. And as for that ageism, that was just Sam’s word against theirs. As the company’s new board somewhat laughably pointed out, “There’s no record of the manager making that comment in their notes for that meeting.”

But we had a secret weapon: Sam’s handwritten daily diary for the last nine years. In this, Sam had recorded the ageist comment – weeks before the car park incident, let alone the grievance.

Sam hadn’t raised a grievance against their manager out of fear they’d attract the same rapid ejection that the two other ‘oldies’ had. But now that ejection was on the cards anyway, Alfie and I had no hesitation. Like Sam Pepys, our Sam’s extensive record of events would be hugely supportive evidence.

Also from our Sam’s diary, we discovered an earlier incident for one of the company’s other post-covid departments. There, a colleague had come dangerously close to suffering a fatal anaphylactic attack at their desk – because others nearby had all teased them under the misapprehension that they were joking.

That colleague ended up in hospital, and subsequently sued the company – but no-one was dismissed for gross misconduct. Sam knew of this because the only impact to employees was a cross-company requirement to watch a training video on how to spot anaphylactic shocks.

So on top of Sam’s written evidence of ageism, we had objective evidence of discrimination. Someone nearly dies, cheeky staff with the company’s average age get off lightly. Someone twists their ankle? An oblivious 60-year-old is dismissed for gross misconduct.

None of this mattered, though. Although the company relented to our pressures to involve a third party mediator, the company got to dictate the terms of investigation – meaning Sam’s case could never be fully heard. Poor Sam had to endure almost a year of mental torment.

Until, at last, we came out the other side of the company’s internal appeal process. That meant the option of a claim to the Employment Tribunal was finally open to us – and we could dictate the terms.

Funnily enough, we chose to ignore the claims about asking clients for feedback (but again – What?!). Instead, we focused exclusively on the objective evidence of discrimination.

And, somewhat to Sam’s satisfaction, the company offered to settle.

However. Settlements are not acceptance of wrongdoing, however much they suggest that the defendant is nervous about how the court might decide. Moreover, it would mean Sam could never go public about how they were treated – settlements always come with a confidentiality clause.

According to the free Legal Aid advice we procured, though, the settlement amount was pretty similar to what Sam could expect the Tribunal to award. We were confident in our evidence, but the chances of a Tribunal victory could be easily reduced if we were seen to reject such a generous settlement offer; Sam could be seen as overly pejorative.

That would prevent Sam from getting what they really wanted: the chance to make sure no-one at the company could ever be made to suffer the same way.

So I suggested we take a chance, and make a bold counter-offer: the same amount, same confidentiality, but with the company issuing a press release to the local newspapers thanking Sam for their indispensable and extraordinarily productive 20+ years of service.

There was no way the company would agree to that. It would obviously then go to Tribunal, Sam would likely win, and everyone could hear of the company’s shame.

Except, this week, the company did agree.

We hadn’t counted on how desperate they were to keep away from the Tribunal.

As a result, Sam got more than they would have ever gained from the Tribunal: as well a generous settlement, Sam received an earlier resolution. And on top of that, even though only one local rag published the release, Sam got the chance to bask in the company’s outward expression of praise – knowing they were inwardly deeply embarrassed to be making it, and would surely take steps to ensure they never put themselves in the same position again…

Of course, because of the same settlement, all details that might allow the company to prove that I’m writing about them have been stripped from this story – unless they wish to risk embarrassing themselves further. But if you ever feel you’re getting bullied at work, or suffering any form of discrimination, I hope you’ll leave this piece with these takeaways:

1. Keep a daily diary, ideally handwritten, or else stored to the Cloud with an automatic datestamp.

2. Like Sam, believe in yourself. Bullies count on you caving in and giving up; it can be an arduous slog to stand up to that, but that’s how justice is won.

3. Don’t keep your suffering to yourself. You never know how and how well your friends and family can help you until you confide in them.
   
   And finally…

4. Never be afraid to ask for more than you think you’ll get. ‘Coz you never know – you might just get it. $;-)

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In return for the smiles you got from these words, you can support my time spent writing them for about the same you’d spend in a bookshop

Plus you’ll receive the warm glow that comes from knowing you’re supporting creative freedom. $;-)

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Weekly Productivity Score: 56%

I might’ve been a bit distracted… $;-)

Quarterly Best: 74%
Annual Best:74%