Marc Gander - The Consumer Survival Handbook


A 220 page introduction to all things consumer related by our own BankFodder.

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Patricia Pearl - Small Claims Procedure - A Practical Guide


An excellent guide for the layperson in how to use the County Court - a must if you are intending to start a claim.

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  1. #1
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    Default questions about employment tribunals

    Hi,

    I have loads of questions about employment tribunals as I am representing myself in one for discrimination. Can anyone help with my first (and certainly not last) question?

    If I represent myself, am I obliged to be cross-examined by the respondent?

    If not, what are the pros and cons?


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    Default Re: questions about employment tribunals

    Hi,


    I think it would be a great idea to go to court and watch a few. Yes, you cam be asked questions.

    Never assume anyone on the internet is who they say they are. Only rely on advice from insured professionals you have paid for!
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    Default Re: questions about employment tribunals

    In fact, you can almost guarantee that you will be cross examined! You cannot make allegations against someone in a court of law and expect that they don't have a right to challenge you about your statements.

    Discrimination cases operate somewhat differently from other types of case. Normally, the tribunal assumes that the respondent is guilty and the burden of proof is on them to prove otherwise. That's a rather simplistic way of putting it, but it is accurate. In discrimination cases, it is up to the claimant to first prove that discrimination MAY have taken place - not that it has but that there is reason to believe it might have - before the burden of proof shifts to the employer to prove it didn't. A significant number of cases fail at that first hurdle because the burden of proof is on you, and it is often hard to prove.

    Have you already exhausted pre-claim conciliation?


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    Default

    Quote Originally Posted by Sangie595 View Post
    In fact, you can almost guarantee that you will be cross examined! You cannot make allegations against someone in a court of law and expect that they don't have a right to challenge you about your statements.

    Discrimination cases operate somewhat differently from other types of case. Normally, the tribunal assumes that the respondent is guilty and the burden of proof is on them to prove otherwise. That's a rather simplistic way of putting it, but it is accurate. In discrimination cases, it is up to the claimant to first prove that discrimination MAY have taken place - not that it has but that there is reason to believe it might have - before the burden of proof shifts to the employer to prove it didn't. A significant number of cases fail at that first hurdle because the burden of proof is on you, and it is often hard to prove.

    Have you already exhausted pre-claim conciliation?
    I have been to a number of ETs and plan to go to more!

    Yes, tried ACAS conciliation, but my employer did not want to engage.

    Ok so I will be cross examined. No worries.

    Next few questions if I may?

    1. The evidential bundle has been agreed and produced. Are there any circumstances when the claimant can request further disclosure? If not, can they request clarification on the contents of the bundle?

    2. My previous solicitor advised I drop my claim after getting an email from the respondents solicitor claiming I had no chance of winning (and that he requested that I should do my case). Is that witness intimidation (it did feel so). Did my solicitor have a duty of care in this case?

    3. My ex solicitor seemed to have made several excuses to do my case due to my legal expenses funding running out. Does this ever happen with solicitors making up lots of excuses to drop a case because their cash cow is gone?

    4. Can anyone direct me to any free resources that could help me write a good statement? Perhaps online or phone helpline?

    Many thanks!


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    Default Re: questions about employment tribunals

    2. were thee facts in that email?


    3. it's reasonable for them to expect to be paid!

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  6. #6
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    Default Re: questions about employment tribunals

    1. I'm not entirely sure what you are asking here. What "further disclosure" could you want - the agreed bundle should contain all your evidence and all theirs. You can't dictate what evidence they produce for their case; and you should have your evidence in there already! And you are having a legal hearing in order to clarify the evidence, so why would you want to clarify it right now? I don't understand what you are driving at with this question, so you need to be a little less obtuse!

    2. Since your solicitor isn't a witness, then no, it isn't witness intimidation. And here the thing - when a solicitor acts that way upon simply receiving an email from another solicitor, alarm bells are ringing very loudly. Because whilst such letters are not uncommon to litigants in person (and also aren't intimidation in any legal sense) when a solicitor listens to one of them, it strongly indicates that they know they have no case and expect to be smashed in court. Something is very, very wrong when a solicitor decides that such a response from the opposing counsel is worth paying any attention to.

    3. Yes it does - and its most commonly the case when they are chancing their arm by pushing a case that they know can't win, in the hope that the employer will settle before the tribunal so they can claim their fees from the "win" and move on to the next punter. I'm a little confused though- were toy paying for representation, or did you have insurance? The statement that your legal expenses ran out is confusing me because funding doesn't generally "run out". But I do agree with Emmzzi - it really doesn't matter who is paying the bill, because any professional expects to be paid and there can be no reasonable expectation for them to work without payment.

    4. A good statement is a truthful one. There is no magic wand that makes it better because you use a template. Your statement is your story. So you start at the beginning, tell the whole story, referencing all evidence as you go. There's an example here https://www.lrdpublications.org.uk/d...sStatement.PDF

    But exactly how one is best laid out can vary from one case to another depending on the details, so it's hard to be precise as to what is best for you. I'd suggest Google!


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    Default Re: questions about employment tribunals

    Discrimination cases have the lowest rate of success at the Tribunal

    You have to do a lot of research

    My assumption is that you have not had a PHR

    If you have had one then the other side would have pushed for a Strike Out

    If you have a PHR then it would be strange that they are now claiming your case is weak

    Although a Strike Out is not allowed if there is a dispute of facts (Anyanwu & Another V South Bank Student Union & Another 2001)

    So you need to confirm at what stage you are

    Regarding your question for further disclosure, yes you can

    There is the standard disclosure but disclosure continues even up to the Trial date

    If new information comes to you (or the other side) then disclosure could be demanded

    I assume that you are a Litigant in Person then you could ask for further disclosure

    The other side might refuse but you could cite Wetton (as Liquidator of Mumtaz Properties) v. Ahmed and others [2011] EWCA Civ. 61;

    “The judge should consider what other independent evidence would be available to support the witness. Such evidence would generally be documentary but it could be other oral evidence”.

    Discrimination has a two-stage and most cases fail at the first stage

    But note the following case laws;

    “Although we have referred to the two stages in the ET's decision-making process, we do not thereby intend to suggest that ETs should divide hearings into two parts to correspond to those stages”

    Birmingham City Council v Millwood UKEAT/0564/11 per Langstaff J (P) at [17]; “Though the analysis must be in two parts, the evidence comes in one bit”

    Laing v Manchester City Council [2006] ICR 1519 that a Tribunal in drawing the inferences that it might have to draw could legitimately consider, and should legitimately consider, all the evidence put before it prior to concluding whether the burden of proof had shifted

    Madarassy v Nomura International plc [2007] IRLR 246 where it was “made clear that in coming to the conclusion as to whether the Claimant had established a prima facie case, the Tribunal is to examine all the evidence provided by the Respondent and the Claimant." (note both parties give evidence)

    Para 77 of Laing v Manchester City Council [2006] ICR 1519 states “Moreover, if the employer's evidence strongly suggests that he was in fact discriminating on grounds of race, that evidence could surely be relied on by the Tribunal to reach a finding of discrimination even if the prima facie case had not been established. The Tribunal cannot ignore damning evidence from the employer as to the explanation for his conduct simply because the employee has not raised a sufficiently strong case at the first stage.”

    Para 103 of Ayodele v CityLink Limited [2017] EWCA Civ 1913 that the Tribunal is to draw inferences from ALL the evidence, whatever the source.

    In particular, even if you fail to make a prima facie case, if the Respondent also fail to give good explanation then you stand a small chance

    As you can see you have to do a lot of research

    You need to seek documents and you need to ask the right questions

    Good luck


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    Default Re: questions about employment tribunals

    Thanks for all the advice so far. I have a few more questions if I may?

    1. Can I ask the court to get the respondent to release the names of the people who failed to get the same job I applied for to see if they believe they have been discriminated against as well?
    2. Can I cross examined on things that have been disclosed in the bundle? E.g. if I failed a course and there is no mention of this in the bundle- can I be cross examined about it?
    3. Can the respondant add extra information to the agreed bundle? Should I allow it and if not, what are strong arguments against it?
    4. Can statistics be given in a statement to help my case?
    5. How would I challenge evidence in the bundle, if the person it concerns, does not appear as a witness at the tribunal?
    7. Am I allowed to write down each question that the barrister asks me during cross examination.
    8. As I cannot be re-examined, how can I put across my points after being cross examined?
    9. What tactics do you think the barrister will use to make me look like I have poor listening skills and constantly interrupting during the cross examination? I ask this as the respondant claims these are the reasons that I did not get the job.

    many thanks


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    Default Re: questions about employment tribunals

    1. no
    2 yes
    3 they can try but you can object
    4 yes if you submit them in time as part of your bundle
    5 the bundle is the agreed evidence, if you dont agree then each side submits its own bundles, doubling the printing costs
    7 yes
    8 summing up
    9 whatever they can get away with


  10. #10
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    Default Re: questions about employment tribunals

    Quote Originally Posted by rogerfed View Post
    Thanks for all the advice so far. I have a few more questions if I may?

    1. Can I ask the court to get the respondent to release the names of the people who failed to get the same job I applied for to see if they believe they have been discriminated against as well?
    2. Can I cross examined on things that have been disclosed in the bundle? E.g. if I failed a course and there is no mention of this in the bundle- can I be cross examined about it?
    3. Can the respondant add extra information to the agreed bundle? Should I allow it and if not, what are strong arguments against it?
    4. Can statistics be given in a statement to help my case?
    5. How would I challenge evidence in the bundle, if the person it concerns, does not appear as a witness at the tribunal?
    7. Am I allowed to write down each question that the barrister asks me during cross examination.
    8. As I cannot be re-examined, how can I put across my points after being cross examined?
    9. What tactics do you think the barrister will use to make me look like I have poor listening skills and constantly interrupting during the cross examination? I ask this as the respondant claims these are the reasons that I did not get the job.

    many thanks



    You didn't answer my question regarding what stage you are at now.


    From your mention of Bundle, I guess you have had the PHR and/or CMH


    For question 1; There used to be something called Questionnaires but it is no longer mandatory.


    You can still ask but the other side might not respond


    You could then ask the Tribunal to draw adverse inference from their failure to answer


    For question 2; you could refuse to answer a question that wasn't stated in the Bundle and/or ET3 on the grounds that it wasn't anticipated


    However, the other side could ask the Tribunal to draw adverse inference from your failure to answer


    I would suggest that you try and answer all questions asked


    For question 3, I would suggest you allow as many documents as possible as documents tend to bite those that have something to hide


    For question 4, I would say a big yes


    For question 5, If the person doesn't appear as a witness then you could ask that the evidence is discarded


    However, don't try and come across as one who has legal training, it tends to turn Judges off



    You could find this resources useful


    http://www.guildhallchambers.co.uk/u...ioncase_SS.PDF



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