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My tribunal is being held over four days at the beginning of July. I have just discovered that the owners (who were franchisees) have sold their company to the franchise.
They were bringing five witnesses including both of the original directors.
My questions are, can I expect to see the original directors turn up as witnesses? I know there's no requirement on their part to do so and any response you give will just be opinion.
My other question is I have had little contact with Peninsula about this case. We've exchanged bundles and witness statements. They went through their usual request to strike out theatre, unsuccessfully. Are there any questions I should consider asking them?
Nobody could possibly answer these questions. We know nothing about the terms of the sale, the intentions of witnesses, or the role of Peninsula. Or the case! Any answer you got is likely to be wrong.
I knew the first question was just a matter of opinion. I was hoping to gain a consensus. Its not important.
I presumed that one would realise that Peninsula are acting on behalf of the Respondents. The particulars of the case wouldn't have a bearing on a generalised question. I'm not looking for right or wrong answers.
I'm looking for examples of possible outcomes, thus allowing me to prepare for these contingencies.
As to my second question, whilst it is somewhat philosophical in nature, bears strongly on the Respondent's ability to respond.
I did feel that if the previous directors felt the sale meant they were disinclined to bear testimony, that it changed the shape of the case.
For example, whilst the Judge can read their written statement, they will not be responding to any evidence I might produce. This will likely damage the Respondent's case.
Somebody might have experience of this and give me a feel as to how a judge is likely to respond. Will the Judge, for example, rule out any evidence relating to the previous directors?
Should I contact Peninsula with a view to a settlement offer? etc
Equally, it may be that the new owners have a disclaimer in the sale agreement requiring the previous directors to act.
I was hoping others here might have some experience or knowledge about these things and could direct my thoughts as to further preparation. I suspect writing to Peninsula to enquire about the status of the directors as witnesses would be prudent.
One did, in fact, recognise that Peninsula would be acting on behalf of the employer in some capacity. But given that they also have a range of employer services it could have been in several different forms, including, potentially as a co-respondent. I presumed one would know that...
You are not Peninsula's client - they are hardly likely to respond to you unless instructed to do so by someone who is their client.
One has quite a lot of experience or knowledge about these things, but doesn't possess a crystal ball, and is therefore not able to divine the intentions of a group of people one knows nothing about, in a case one knows nothing about, in relation to a sale one doesn't know the terms of!
It is equally possible that you no longer have a case because you have no respondent. But that, like all your suggestions, is a guess based on absolutely no information!
But Peninsula won't be offering you a settlement unless their clients instruct them to. They are only acting as legal advisors, and don't initiate any action themselves.
That is, of course, assuming they have anything at all to do with it any more - it is also possible that their clients are now former clients.
then clearly you know everything you need to know.
As your original posting makes no mention of what this is all about then people will need to ask questions and that includes ones about in what capacity someone is acting.
If you think writing to Peninsula then you do that, I would write to the trinbunal seeking an order for the company to make these things clear as you would want to cross examine them and their evidence or have it chucked out if they dont appear.
I knew the first question was just a matter of opinion. I was hoping to gain a consensus. Its not important.
I presumed that one would realise that Peninsula are acting on behalf of the Respondents. The particulars of the case wouldn't have a bearing on a generalised question. I'm not looking for right or wrong answers. I'm looking for examples of possible outcomes, thus allowing me to prepare for these contingencies.
As to my second question, whilst it is somewhat philosophical in nature, bears strongly on the Respondent's ability to respond.
I did feel that if the previous directors felt the sale meant they were disinclined to bear testimony, that it changed the shape of the case. For example, whilst the Judge can read their written statement, they will not be responding to any evidence I might produce. This will likely damage the Respondent's case. Somebody might have experience of this and give me a feel as to how a judge is likely to respond. Will the Judge, for example, rule out any evidence relating to the previous directors? Should I contact Peninsula with a view to a settlement offer? etc
Equally, it may be that the new owners have a disclaimer in the sale agreement requiring the previous directors to act. I was hoping others here might have some experience or knowledge about these things and could direct my thoughts as to further preparation. I suspect writing to Peninsula to enquire about the status of the directors as witnesses would be prudent.
Thanks again for your time, Sangie
James555
I would clearly expect those that have given witness statements to turn up on that day
However, some people, for whatever reasons, don’t turn up (eg sickness or bereavement)
That witness statement is either not read or light weight is given to them
My bet is that it wouldn’t be read.
I would suggest you prepare to cross examine everyone that has given a witness statement
I believe you should have all your questions ready by now (at least a month in advance)
Regarding settlement agreement, my suggestion is that you make an offer
Make a high offer then note that it is open to negotiation
My reason;
The other side hasn’t made any offer (not to my knowledge), so I deduce that their case is strong
Making an offer would kind of protect you against any cost in case they win
Cost are usually NOT made in an Employment Tribunal but it wouldn’t hurt if you take a little insurance
Please note, I have not sight of your case so can’t say if it has merit or not
In any event, deciding on the merit of a case is the job of a legal adviser, I’m not
Finally, you are free to write to Peninsula and ask them about the status and/or availability of their witnesses
They should respond
If they don’t, then you can write to the Tribunal and ask for an Order
You shouldn't rush to the Tribunal at the slightest opportunity
Make sure you point out that you had earlier written to the other side and they refused.
Also, point out that you consider their behaviour unreasonable conduct
Thank you, Dondada. A thoughtful essay. Much appreciated.
I have wondered about a settlement agreement.
My concern was that they had not produced a good argument in their ET3, their bundle or their witness statements to show that my primary case was poor.
This read to me that their defence was not going to be evidence based and was not going to rely on the law.
My case rests on a point of law.
Generally, as I understand it, this means they do a lot of pounding on tables (as they say). This makes me suspect that their case isn't very strong.
I believe they're going to rely on claiming that they were wonderful and I was not which unfortunately (even if it were true) completely misses the point of the case. I appreciate you're not a legal advisor but you offered me some good cold advice. Thanks.
I know it weakens their case if the directors who've resigned don't turn up. I'm not relying on that. I'll also ask about the availability of their witnesses. The new Directors are part of a much larger company and they may take a different view to the previous directors.
I have prepared questions for all of the witnesses already.
I've yet to package them. I've also prepared for the questions I think I will be asked as their solicitor tells me that he expects to have me on the stand for three hours.
As regards putting my case, I have been using most of my witness statement (which has a significant number of points to use).
I've asked a friend who I consider to be intelligent and commercially knowledgeable to review it and I'm prepared for something of a re-write.
It is about 20,000 words packed down as I don't want to be verbose or drift off topic. I'm mindful that I will be reading it out and this offers opportunities too.
I like your idea of making an offer.
I had always presumed that the first to make an offer is showing a weakness. Nevertheless, I think I'll do as you say.
Thank you for that.
My apologies for not responding sooner but I've finally got a full time job and am trying to balance work with the case load.
I made them an offer which they rejected out of hand.
On a positive note, they described the Respondent as extremely confident.
That made me laugh because we've been in front of the Judge before and if they had a killer defence, it would have been a great time to present it.
Equally, they could have told me.
I would definitely put a halt to proceedings if they could show any significant strength.
Their response was just mind games and poorly done at that.
He's tried to get my goat on several occasions but mostly I found it risible.
Truthfully, I'm either very confident or very despondent when it comes to the case.
At work I can be considered a bit phlegmatic but I enjoy giving talks, so as a person, I expect to come across as confident.
My biggest weakness is getting chatty (as you might tell from the length of my posts).
I was aware of what you're calling rapport between a lawyer and judge.
I'm hoping to show common sense and that their Lawyer is simply parroting the Respondent's position and attempting to translate that into a case.
In particular from their side of the bundle and their witness statements, I think I can show that these have no bearing on the case and is simply deflection i.e. no matter the level of their Lawyer's professionalism, it's the client at fault.
That last is my point two of the three legs a statutory dismissal case rest on: that I chose to leave at an appropriate moment based on their prior actions and their recent decisions.
So, you're right, I am pretty confident.
I have two main tactics that I expect to play a lot; shutting up and pointing out strawmen. My feeling is though, that it's like a football match; it's all on the day!
Blimey. I thought it was about showing the tribunal that the other side had behaved unlawfully.
If (as a lay person) you have to use tactics to belittle or discomfort witnesses:
A) the tribunal staff will likely notice
B) they may intervene to stop you badgering witnesses
C) they might ask themselves if you have any evidence to support yourself and why you aren’t focusing on that instead.....
I really don't understand this
The OP asked for help
Nobody was able to assist
He even wanted to close the Thread
I was able to offer some tips and advice
Which he appreciated
Rather than offering your own tips and advice, mine is being criticized
Please offer your own suggestions and the OP will choose which he prefers
I wonder what the Site Team will say about this unfair attack
Report my post, then, and let the site team decide.
I suspect (with regard to an “unfair attack”) that they’ll say
a) it isn’t unfair, and
b) it isn’t an attack.
As an observation (and not an attack!), you seem to consistently:
A) advise people to go to an ET, regardless of if it seems they have a good case
B) if someone says they don’t have a good case for an ET, say
i) that they shouldn’t be giving legal advice
ii) that they don’t have all the facts and thus can’t comment.
Yet,
a) the same applies to you regarding Bi and Bii
b) you always then say “I’m just giving options and the OP can decide” ; which is true, but equally true for those who are disagreeing with you!
Who am I likely to find more persuasive?
Someone who always seems to say “take it to an ET” whatever the scenario,
Or someone who sometimes says “take it to an ET”, other times “you won’t have a chance at an ET”, and who seems to be more familiar with the ET process, which leads me to:
You still haven’t answered just how many ET claims you have been involved with / how many ET’s you’ve actually been to; which you’ve now been asked a number of times without an answer.
So clearly, the issue you have is with me.
It isn't because what I said was wrong just that you have a problem with me.
I have a strong belief in the legal principle of ubi jus ibi remedium
I'm very proud of that
I would just expect that you engage with me on an intellectual level
This pettiness of Ad hominem fallacious argument is getting us no where
Please provide solid arguments and evidence to disprove my points
That is a higher level of discussion
So clearly, the issue you have is with me.
It isn't because what I said was wrong just that you have a problem with me.
I have a strong belief in the legal principle of ubi jus ibi remedium
I'm very proud of that
I would just expect that you engage with me on an intellectual level
This pettiness of Ad hominem fallacious argument is getting us no where
Please provide solid arguments and evidence to disprove my points
That is a higher level of discussion
No, my “issue” isn’t with you, but your behaviour, and your ‘advice’.
As I said before, recommending basing a case on haranguing / belittling the other side’s witnesses rather than a strong case is poor advice.
Only ever recommending “take it to an ET” regardless of if the case appears weak or strong suggests a skewed starting point.
Avoiding answering just how much experience you have in real life, rather than ‘armchair warrior’ : doesn’t build confidence on a background of the above described behaviour.
That isn’t a merely academic or ad hominem discussion, but based on your previous posts, and the questions you seem to be ‘dodging’
Only ever recommending “take it to an ET” regardless of if the case appears weak or strong suggests a skewed starting point.
Here is my favourite quote
Basically it says Cases turn on small details
Megarry J in John v Rees [1970] 1 Ch 345, 402
"As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change"
If you don't have ALL the facts don't advise for or against legal action
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Originally Posted by James555
