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Patricia Pearl - Small Claims Procedure - A Practical Guide


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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?


  2. #2

    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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  3. #3
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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?


  4. #4
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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!


  5. #5

    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!


  7. #7
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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


  8. #8
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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


  9. #9

    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


  11. #11
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    Default Employment Appeals Tribunal

    Hello,

    I took my employer to a tribunal for sex discrimination and lost.

    I am now appealing the decision. I have a couple of questions for any legal boffins on here:

    1. Why is it, in a criminal court if a witness lies, it will probably mean a case is thrown out. But in an employment tribunal/ civil court, why is it that when someone lies under oath, the ET not only allows the respondent to carry on with its evidence, but it also allows (and accepts as truth) all the rest of the "evidence" supplied by the witness who just lied. I just can't get my head around it!

    2. At the end of a tribunal is it right that a judge can ask both parties to give an oral submission and disallow written submissions? In my case that is what happened and it threw me sideways. I came expecting to just put in a written submission and leave! The judge said there was a stated case, but did not explain which one it was.



    So I am looking to appeal to the employment appeal tribunal. My understanding is that they only consider errors in law. Again for any legal minds on here, are any of the following errors in law:

    3. The respondent states that any evidence produced after ACAS conciliation began was legally privileged. The ET accepted that. But I spoke to ACAS and they confirmed that it was not right (only comms between the conciliator and the respondent are legally privileged). Has the ET erred in law by wrongly accepting the respondent's excuse for not fully disclosing all evidence to me?

    4. During cross examination, the counsel for the respondent began communicating with the witness, whilst the panel were making notes. The judge mentions this in his written decision, stating that counsel and the witness denied this, but the witness went onto say at one point counsel did have a shocked look on his face. This is indirect communication from counsel, which the ET appear to have glossed over. Is this an error in law?

    5. If the employer has a company policy, but the ET ignores the policy and applies a less strenuous thought process to the issue, than had the company policy been followed, has the ET erred in law?

    6. If a respondent witness says ABC in its statement, but during cross examination agrees that they were incorrect on some points (XYZ). In the ET decision the judge only mentions ABC and fails to mention anything about XYZ, is that an error in law?

    7. If the ET decision has factual errors in it's conclusion, is that an error in law?

    With the points above, could you please indicate what kind of error in law would it be?

    application of the wrong legal test
    inadequate reasons
    no evidence
    perversity
    bias/ apparent bias

    Finally, can anyone point me to a link where an example of an EAT form 1 has been structured well?

    Many thanks!


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  12. #12

    Default Re: Employment Appeals Tribunal

    Hi.


    Are you self-representing at this EAT? My thought is that you need some back up like a local law centre at least.


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  13. #13
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    Default

    Quote Originally Posted by honeybee13 View Post
    Hi.


    Are you self-representing at this EAT? My thought is that you need some back up like a local law centre at least.




    HB
    I'm going to put in the EAT form 1 in and should it go to a hearing I'll get representation.


  14. #14
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    Default

    Quote Originally Posted by rogerfed View Post
    I'm going to put in the EAT form 1 in and should it go to a hearing I'll get representation.
    The problem is there is only one local law centre but they are extremely difficult to see


  15. #15

    Default Re: Employment Appeals Tribunal

    Old and new threads merged, for history.


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  16. #16

    Default Re: Employment Appeals Tribunal

    you gave a small list of procedural nit picks


    I cannot see an error in law as pertains to the actual meat of the case. What error do you think has been made? How has the judge interpretted the law incorrectly?



    You did not answer people's questions so they could help you first time round


    Are you going to do so this time?

    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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  17. #17

    Default Re: Employment Appeals Tribunal

    In my experience unless a case is clearly in your favour, the ET will look at the bigger picture rather than the small details.
    All employers lie in ET, and unfortunately this is rarely addressed properly by the judge.
    Company policy not followed has no weight in ET if not against the law.
    For example, company policy says that cctv will not be used in disciplinary but then they use it to sack someone who has stolen something.
    ET will not care about policy, the fact is that someone stole something and got rightly sacked.


  18. #18
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    Default Re: Employment Appeals Tribunal

    Quote Originally Posted by Emmzzi View Post
    you gave a small list of procedural nit picks


    I cannot see an error in law as pertains to the actual meat of the case. What error do you think has been made? How has the judge interpretted the law incorrectly?



    You did not answer people's questions so they could help you first time round


    Are you going to do so this time?
    My apologies for not answering questions previously and yes it was not doubt to my detriment.

    TBH I have not really got my head around the concept of errors in law. Could you help me understand it by giving me some examples based on my case- I attended a job interview and was rejected because of my race?

    In terms of errors I think have been made I was hoping you would help me on this! I have shown in my post from yesterday the errors I think maybe applicable. I certainly think point 6 is very strong. As a very simple example- the witness put in his statement, he was unable to give me full marks for one parts of an interview because I did not explain how I went about achieving the desired goal. But when I cross examined him, I read out the answer I gave in the interview and explained that I clearly had explained how I achieved the desired goal. To this he agreed and that I should have been given full marks. When the judge delivered his notice, he makes no mention of my cross examination, and simply puts that he accepts the witnesses explanation for why he did not give me full marks. This is despite the witness already accepting that I did indeed give him the neccessay evidence he said was lacking and which made me loose marks to get the top score for the question. Surely it cannot be right that a judge can pick some evidence and ignore others.

    Again, I am gobsmacked at the stupidity of the ET system. Since when is it right for all witnesses to be in the same room! In scotland it is not allowed, why is it allowed here. JUst ridiculous.

    Anyway, any help you can offer would be appreciated!


  19. #19
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    Default Re: Employment Appeals Tribunal

    Quote Originally Posted by king12345 View Post
    In my experience unless a case is clearly in your favour, the ET will look at the bigger picture rather than the small details.
    All employers lie in ET, and unfortunately this is rarely addressed properly by the judge.
    Company policy not followed has no weight in ET if not against the law.
    For example, company policy says that cctv will not be used in disciplinary but then they use it to sack someone who has stolen something.
    ET will not care about policy, the fact is that someone stole something and got rightly sacked.
    But isn't that the definition of discrimination? Treating people differently by having one policy for one person and another for someone else?! Are the ETs not encouraging discrimination?

    If a policy says that an interviewer should write 70% of what is said, then surely people who have had 70% of what they said written down have a greater chance of hitting all the right points and getting top marks!


  20. #20

    Default Re: Employment Appeals Tribunal

    Disagreeing with the judge's view of which evidence is relevant, is not something you can appeal against.

    Not all discrimination is illegal and is sounds like you have failed to evidence that the discrimination was due to race.

    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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