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 Employment tribunal

    Hi
    I am going to help a friend self represent herself at the employment tribunal.
    But I have difficulty formulating what her claim is, so hopefully you can help me with that.

    Details :

    My friend worked for less than 2 years at her company.
    Few months earlier new shop manager starts working and everything changes.

    Sexual conversations and jokes are constantly made, some general, some directed at her, pornographic figures are being made and left at work counter, employee whats up chat is littered with sexual jokes, swearing at customers, inappropiate pictures of customers.

    my friend raises that with the shop manager on 2 occasions ( who is part, witness or initiates that anyway ).
    No response until one day that shop manager bursts into furious shouting in front of customers (about another matter) and during that ,,conversation'' the complains are mentioned as well and shop manager claims they are baseless and if my friend was born in UK she would find them normal and would just laugh them off (they are not btw).

    So enough is enough and my friend complains to the higher ups.
    She is being moved to antoher shop, investigation starts.

    2 months later she receives the conclusion and it is like a joke.
    Key parts havent been even investigated, employees havent been cross referenced, cctv hasnt been obtained, screenshots of group chat hasnt been considered at all.

    Some of the things are admitted, but they claim it was in a good spirit and they meant well ..
    . So she appeals and still no change.

    Company is ignoring everything, as it might mean it might need to find new stuff for that shop and from what I heard this is not unusual behaviour anyway in their shops.

    My friend has decided to take them to the Employment tribunal.
    But how do we formulate the basis of the claim ?

    Sexual harassment at work, company's failure to safeguard her and others by not being acted upon her complain by her direct manager and then not conducting properly the investigation, the harm to her ( she is seeing her gp as she has been very stressed, anxious and not able to concentrate due to what has been happening ?

    How do you formulate that, what should be the basis of the claim ?


  2. #2

    Default Re: Employment tribunal

    She needs professional help, not a Mackenzie friend.
    This is a serious matter.


  3. #3
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    Default Re: Employment tribunal

    So she hasn't been dismissed either? Yes, this needs legal advice. I doubt she'll succeed, but if she's to stand any chance of doing so, she needs good legal advice. With the best will in the world, someone who doesn't know what they are doing is not going to cut it on this sort of claim.


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    Default Re: Employment tribunal

    Thank you for your replies. So far solicitors is not an option. She doesn't have the means, also law firms registered on the legal aid website claim they don't do it, as it is employment matter ... I will try to find CFA or DBA solicitors. In the meantime we need to at least apply to court, as there is only 1 week left due to company dragging the ''investigation''.

    I see your point of it being difficult without a solicitor, but if she doesn't apply now, then company wins 100%. If she does, even without a lawyer, then she has some chances.

    Just afraid, that I will make a big mistake when applying, so any pointers are appreciated. And I do realise this is informal forum and I get informal advice. No one should feel bound by conscious or law for the advice they will give. Just please give it in good faith. Any advice is much appreciated.


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    Default Re: Employment tribunal

    I'm awfully sorry, but you are asking us to advise you on formulating a claim that we have no real information about.
    That simply isn't possible - we do not even have any evidence that she has a claim.

    An employment tribunal doesn't care a jot about "inappropriate photos of customers", how adults conduct themselves on their private social media (unless she is clearly and categorically targeted as a result of this
    - and it sounds very much like she simply objects to the content, in which case the answer is, don't participate), or swearing at customers.

    Simply because she does not like the way that colleagues conduct themselves, or the outcome of a grievance (which was at least partly upheld
    - so that is going to be something of a hurdle to overcome in itself), is not grounds for a tribunal claim.

    That isn't to say there isn't just cause, but equally it doesn't for one minute say that they're is either!
    So you are expecting advice on the impossible.

    Much as most people might condemn such behavior as you describe, there is a difference between what we may believe is unacceptable, and what is actually unlawful. I can't see, from what you have said here, that you or she know the difference. And it's an important difference.

    How can you only have a week left? In the first place you can't have only a week due to them dragging out the investigation - the clock starts from the date of the action you are complaining about, and in this case it would be the outcome of the appeal. And you need to engage in pre claim conciliation anyway.

    You need legal advice. You do not know what your are doing. You are aware that the employer can come after her for costs if she's got no case - it doesn't happen often, but it is happening more, and people who start up claims without knowing that they even have a case are at the biggest risk.

    She also needs to get another job.
    She won't have one in the very near future.
    Employment tribunals are not what some people think they are - they are hard and most claimants lose, big time in some cases.
    There aren't wonderful large payouts, and claimants will be ripped apart by the employers lawyers.

    Does she even have a clue what she thinks she is doing going down this route?
    Because they aren't appeals against grievance results, and there seems to be precious little evidence that she is treating this as anything else.


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    Default Re: Employment tribunal

    Thank you for your reply.

    You said you dint get enough information. So feel free to ask away ...
    ACAS early reconciliation is done. About the 3 months period - I was under the impression that it is from the events which the grievance was about. I was not aware it is from the day the investigation or appeal of investigation ends. Can you point me to some links to get more information pls ?

    The whats up chat I mentioned is a group created by the shop manager for work only matters - she explicitly says that at the first conversation there. Therefore it is work environment. The employer has a duty to provide safe from harassment workplace, including the chat. It is also indirect evidence of the atmosphere in the physical shop.
    Manager involuntarily admitted receiving complains by my friend about at work sexual harassment. And when I say sexual harassment I mean directed to her. One of the employees admitted that he suggested her underage daughter is possibly pregnant, when she was admitted to the hospital with high fever and vomiting. He claims he has done that with good intentions. Another one admitted he is changing his clothes in the kitchen next to work counter with the door open. He claims he hasn't wandered in the shop area, but actually he did and even showed her his tattoos, which otherwise underneath his clothes which she can describe. CCTV wasn't obtained by the company. So in conclusion for some things she has proofs, for others she doesn't. For the ones she doesn't it will be the about probabilities and she has good chances.

    Company claiming expenses. I think this is overstretch. In my opinion they could have, if she goes to court without any evidence or they prove she did so in bad faith. This however doesn't apply here.


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    Default

    I am not going to reply because you have had your answer twice or three times now.
    Your friend needs legal advice.
    Your assumptions or opinions are not law.
    We cannot operate a tribunal by remote control, and any advice you are given has equal odds of being right or wrong.
    If others wish to advise you, that is up to them.
    But I'm telling you that she needs legal advice.


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    Default

    Quote Originally Posted by Ayho View Post
    Hi. I am going to help a friend self represent herself at the employment tribunal. But I have difficulty formulating what her claim is, so hopefully you can help me with that.

    Details :

    My friend worked for less than 2 years at her company. Few months earlier new shop manager starts working and everything changes. Sexual conversations and jokes are constantly made, some general, some directed at her, pornographic figures are being made and left at work counter, employee whats up chat is littered with sexual jokes, swearing at customers, inappropiate pictures of customers. So my friend raises that with the shop manager on 2 occasions ( who is part, witness or initiates that anyway ). No response until one day that shop manager bursts into furious shouting in front of customers (about another matter) and during that ,,conversation'' the complains are mentioned as well and shop manager claims they are baseless and if my friend was born in UK she would find them normal and would just laugh them off (they are not btw).
    So enough is enough and my friend complains to the higher ups. She is being moved to antoher shop, investigation starts. 2 months later she receives the conclusion and it is like a joke. Key parts havent been even investigated, employees havent been cross referenced, cctv hasnt been obtained, screenshots of group chat hasnt been considered at all. Some of the things are admitted, but they claim it was in a good spirit and they meant well ... So she appeals and still no change. Company is ignoring everything, as it might mean it might need to find new stuff for that shop and from what I heard this is not unusual behaviour anyway in their shops.

    So my friend has decided to take them to the Employment tribunal. But how do we formulate the basis of the claim ? Sexual harassment at work, company's failure to safeguard her and others by not being acted upon her complain by her direct manager and then not conducting properly the investigation, the harm to her ( she is seeing her gp as she has been very stressed, anxious and not able to concentrate due to what has been happening ? How do you formulate that, what should be the basis of the claim ?


    Was your friend born in the UK?

    If not, then that statement would amount to racial discrimination

    The sexual jokes, figures etc would also amount to sexual harassment (section 26 of Equality Act 2010)

    However, from the way you have poorly pleaded the case I can boldly say you are most likely going to lose

    This is not as a result of the fact that discrimination cases are VERY difficult to win

    You have poorly stated your case here and I don't think you will improve in the Tribunal

    Note I'm NOT a lawyer so I am not allowed to state the merit or otherwise of a case

    However this is a situation I will be forgiven for telling you that you have a little chance of success

    However under the Equality Act, there are three major offences

    Discrimination, Harassment and Victimization

    The failure of the employer to effectively investigate the complaint would amount to victimization (section 27 of EqA 2010)

    If you have proof of that then you have a strong case

    If you have proof that CCTV images weren't obtained then you have a strong case

    If you have proof that screenshot weren't considered then you have a strong case

    From what you have stated so far I can say you have a greater chance of winning the victimization Claim than the discrimination Claim

    You need to do more research in any case

    I will trust the average person to win a victimization Claim than a discrimination Claim


  9. #9
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    Default Re: Employment tribunal

    Quote Originally Posted by Ayho View Post
    Thank you for your reply.

    One of the employees admitted that he suggested her underage daughter is possibly pregnant, when she was admitted to the hospital with high fever and vomiting. He claims he has done that with good intentions.

    Company claiming expenses. I think this is overstretch. In my opinion they could have, if she goes to court without any evidence or they prove she did so in bad faith. This however doesn't apply here.

    By the way, what race is your friend

    There is a stereotype that there is a prevalence of teenage and/or underage pregnancy amongst certain races

    If your friend is from one of those races then that is clear case of racial discrimination

    If the employee admitted it and the company did nothing about it then that is clear victimization

    I note that the employee said it was good intentions but see para 35 of LYFAR-CISSE v BRIGHTON & SUSSEX UNIVERSITY HOSPITAL NHS TRUST where it was said

    However laudable a person’s intentions are, that does not mean that his actions might not inadvertently or otherwise exclude, disadvantage, alienate or discriminate on prohibited grounds,

    So despite the fact that he had good intentions, his words discriminate.

    If he admitted it and it is written that he admitted it then you have a strong case

    It still depends on the race of your friend anyway and if that stereotype is associated with her race


  10. #10

    Default Re: Employment tribunal

    Quote Originally Posted by dondada View Post
    By the way, what race is your friend

    There is a stereotype that there is a prevalence of teenage and/or underage pregnancy amongst certain races

    If your friend is from one of those races then that is clear case of racial discrimination

    Like white girls on council estates?

    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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  11. #11
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    Default Re: Employment tribunal

    Great replies and advices. Sorry, I am at work atm, long shift, so I am not able to reply in detail today. Just wanted to say thank you dondada


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    Default

    Quote Originally Posted by Emmzzi View Post
    Like white girls on council estates?
    Exactly

    Like someone from the Traveller community

    Like black girls on council estate

    The list is endless

    I can't believe that someone would make such a statement

    I will keep asking the OP if the statement is written down

    I can't believe someone would gift such a easy case

    Further more, this is a clear case of associative discrimination

    That comment wouldn't have been made if it was a young boy who was ill

    I don't know how much the OP is ready to research as Associative Discrimination is also difficult to prove


  13. #13
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    Default Re: Employment tribunal

    Quote Originally Posted by Ayho View Post
    Great replies and advices. Sorry, I am at work atm, long shift, so I am not able to reply in detail today. Just wanted to say thank you dondada
    Just an observation, but when you have no idea what you are talking about in the first place, you also have no idea whether the great advice you have been given is remotely actionable.... Anyone can Google.

    Not everyone can accurately use the law in the specific circumstances in which it needs to be applied.
    I'm sure I'm wasting my breath, but I'm telling you that your friend needs to take legal advice, and that if she hurdles headlong into this without understanding what she is doing or the ramifications of her actions, she could end up a lot worse off than she currently is.

    Wisdom is not always about knowing what the correct advice might need.
    It can also be about knowing when to not give it and tell someone to get legal advice from a lawyer.

    This site, nor any other, can never be a replacement for proper legal advice; and sometimes only proper legal advice will do.
    This is one of those times.

    You won't be the person bearing the consequences of telling her to follow a disastrous course of action, even if you are the architect of it.
    At the very least show her this thread and make sure that she understands that the advice you want to hear may not, in fact, be remotely anything like the advice you need to hear.
    Then she's making the mistake for herself, not having someone else make it for her.


  14. #14

    Default Re: Employment tribunal

    Quote Originally Posted by dondada View Post

    Like someone from the Traveller community

    Like black girls on council estate

    So not related to a specific ethnicity at all - just housing choice and wealth, neither of which are protected characteristics.


    I'm all for fighting against dsicrimination, but at this point with the info we have, that's just inventing it.

    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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  15. #15
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    Default

    Sorry,
    I was going to reply tomorrow in more details, but I see that the discussion is continuing, so have to provide more information now.

    Yes, she was born in another country
    - Turkey, also she belongs to ethnic minority there
    - Kurdish, both of which carry these associations.

    Also it is written down
    - the colleague admitted saying that during the initial investigation.
    He claims it was with good intentions, which can be disputed at the court, as the symptoms he was told were vomiting and HIGH FEVER ( not something you connect with pregnancy).

    He is one of her colleagues making general sexual jokes at the documented employee chat group.

    I started reading the conclusion of the grievance procedure's appeal process.
    In it company admits many failings as initial investigation hasn't been conducted properly
    - major parts of complain hasn't been investigated, evidence (screenshots of chat) hasn't been considered, failed to obtain cctv evidence, key findings hasn't been considered accordingly
    - that includes that remark I assume.

    This in my opinion enables her to include that the employer's actions or lack thereof, constituted a repudiatory breach of the contract, and thus is liable for damages ( there is an implied term of mutual trust and confidence in every employment contract, as per Malik v BCCI ).

    And sorry if I am all over the place
    I am still at work and need to sit down and put everything together in peace.
    Also I agree that the way I presented the case in the forum wasn't good enough.
    I am trying to convince my friend she needs solicitors (preferably best scenario is to use legal aid, as there is discriminatory element, which would qualify her case in my opinion).
    But there is the time constrain and finding lawyer in few days time is difficult.

    About the 3 month period
    - the way I calculate it is this :
    Some of sexual jokes, blue tack figures etc. are out of this 3 month period.
    Chat profanities and the remark about her daughter are very close, have to check exact dates.
    But I assume the final event - her manager claiming her complaints are baseless, because she was born out of UK is the event from which this 3 month period should start.

    So far , the evidence she has is this :

    - Screenshots of employee' whats up chat, which was created by the shop manager.
    In beginning of chat shop manager declares this is official chat and there shouldn't be anything not professional.

    This is confirmed by the deputy manager.
    Regardless of that sexual jokes follow (included by the manager and the deputy), sexual hints, there is mention of a drawing of sexual nature, created by another shop employee, hanging in the shop area, picture of customer's peeking throw pants is shared and commented on. Etc.

    - during investigation colleague, who said that my friend's underage daughter must be pregnant had admitted to saying that. But he has insisted that was done with good intentions and the investigating manager has accepted that

    - during investigation colleague, who she claimed was changing in the kitchen area , next to the work counter with the door open and then wandering into the shop area in his underwear ( leading to one of customers making sexual comment about my friend upon seeing this) has admitted to changing there .

    Investigating manager has upholded this, but only made recommendation for him to close the door in future or change in another area of the shop ... Also she is confident she can describe the tattoos on his body , as he approached her in his underwear to show them ...

    - Shop manager claims she never shouted at her . we are trying to get in touch with some of the customers present during this abuse to use them as witnesses.

    -Shop manager hasn't been even asked about her remark during the investigation that my friend is from another country and that is why she doesn't see these ''jokes'' normal . at least this is what I assume, as this part wasn't even included in the outcome letter of the investigation

    - company has failed to obtain the cctv recording of the verbal abuse of the manager - according to them they get written over after 2 weeks - although my friend immediately filed her complaint after the verbal abuse from her manager

    - all shop employees deny seeing any inappropriate blue tack figures

    -they haven't been cross referenced - for example the events are described by the shop managers are of different nature and on different days - on one of days one of the other shop employees were present, but they haven't been even asked what they have witnessed

    This is what I managed to find from the limited information of the investigation's outcome letter. I hope after she starts the court process, the court will permit her to see the actual investigation's documents

    She just received the outcome letter of her appeal . I still have to read it, but the conclusion is this :

    - Company accepts the reasons for her appeal , that :

    '' 1. The investigation hasn't been conducted properly. Major and serious parts of my complain haven't been investigated

    2. Key evidence haven't been used, obtained or company has failed to save it

    3. Key findings of the investigation haven't led to appropriate disciplinary action

    They continue that parts of the investigation will be started again, some conclusions might be reconsidered and different disciplinary measures might be taken

    I think I have been very clear in my replies to you, Sangie595, that I also recommend her to use legal professionals.
    Quite passionately as well.

    I Just today I insisted that she could be eligible for legal aid, as there is racism and discriminatory elements in her case.
    Also mentioned her being able to find CFA/DBA solicitors I also mentioned that she has only few days to file her case according to our calculations.

    We have to be prepared to be able to file her application, if we are not able to find solicitors in that little time
    I also said that if we don't, then the company will win automatically.
    I appreciate every advice I get here, but I think you are not hearing me .

    Quote Originally Posted by Emmzzi View Post
    So not related to a specific ethnicity at all - just housing choice and wealth, neither of which are protected characteristics.

    I'm all for fighting against discrimination, but at this point with the info we have, that's just inventing it.
    Thank you for your response Emmzzi.
    I see your point, but the wealth factor is one of the reasons for categories of people being disadvantaged.
    Discrimination and racism are the unequal perception/ treatment of individuals or groups, based on preconceptions about those groups of people.

    I am not convinced at all about the innocence of that person's comment.
    Who in their right mind, upon learning that someone's underage daughter has to be taken to out of hours gp with FEVER and vomiting (it was stomach bug btw) ''must be pregnant.

    Apart from being discusting comment, it is factually not true - fever is not a symptom of pregnancy
    Also after my friend reacting strongly to that, he follows with '' You don't know what she is up to...'', together with the discusting laugh.
    My blood is boiling.

    Of course, he only has admitted to saying the bit about pregnancy with just good intentions - that is all the info we know so far.

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  16. #16

    Default Re: Employment tribunal

    But there is a differnce between generl discrimination, and the legal definition of discrimination.

    Which is why you need a lawyer.
    Don't get sucked into relying on case law which it's easy to misinterpret or apply incorrectly.
    Get a lawyer, or don't even start on this course.

    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
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    Default Re: Employment tribunal

    Quote Originally Posted by Ayho View Post
    About the 3 month period - the way I calculate it is this :
    Some of sexual jokes, blue tack figures etc. are out of this 3 month period.
    Chat profanities and the remark about her daughter are very close, have to check exact dates.
    But I assume the final event - her manager claiming her complaints are baseless, because she was born out of UK is the event from which this 3 month period should start.
    The discrimination and sexual harassment Claim would be out if I follow your statement

    You could still put it and ask the Tribunal to accept as it would be just and equitable to do so

    Although "Just and Equitable" has a low threshold but you still need to do some research

    How much research do you want to do?

    And how complicated do you want the process?

    I would suggest you go for simplicity

    The victimization Claim is in time and I believe it is the easiest to win

    Like I stated earlier, I trust the average person to win it

    However, you still need to do a lot research


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    Default Re: Employment tribunal

    Look,
    I have no interest in the thread beyond what I have already said - get a lawyer.
    But if the discrimination claims are out of time then there is no victimisation claim because in law a victimisation claim is an associated claim with discrimination or certain other restricted claims (like union activity). It is not a claim on its own.

    I would also suggest going for simplicity.
    Stop indulging in flightsicon of fancy and get a legal opinion before things get a lot worse.


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    Quote Originally Posted by Sangie595 View Post
    Look,
    I have no interest in the thread beyond what I have already said - get a lawyer.
    But if the discrimination claims are out of time then there is no victimisation claim because in law a victimisation claim is an associated claim with discrimination or certain other restricted claims (like union activity). It is not a claim on its own.

    I would also suggest going for simplicity.
    Stop indulging in flightsicon of fancy and get a legal opinion before things get a lot worse.

    How can you say a victimization Claim can not be a stand alone claim?


    You ought to know that by now!


    Anyway, here are some case law for you to go through



    Hanif Mohammed T/A Mohammed & Co Solicitors v Jackson UKEAT/0370/12/SM



    Thompson v London Central Bus Company Ltd UKEAT/0108/15/DM



    Woodhouse v West North West Homes Leeds Ltd UKEAT/0007/12/SM



    I believe case laws are best as they give insight into the minds of the judges


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    Default Re: Employment tribunal

    If you check, and if you understand what your are reading, every single one lists victimisation as an associated claim to one of the relevant main claims. Victimisation cannot be claimed as a stand alone. If discrimination claims fall, then there is no claim with which to associate victimisation. It had absolutely nothing too do with the minds of the judges. It has everything to do with the law.


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