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  1. #1
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    Default Could failure to respond to email a failure to act?

    Hi everyone,


    Could a persistent failure to respond to two emails and a phone callicon be seen as a failure to act?

    Background

    Person A took a company B to Tribunal on age discrimination grounds

    Person A asked his agency C for relevant documents

    Agency C failed to respond despite two emails and a phone call

    Person A now makes allegation of victimization against the agency C

    Agency C is now claiming that person A had the document that is why they didn't respond

    Person A didn't have the said document!

    However, my question would be: why didn't the agency respond to the first mail and say: "mate, you have these documents so we are not providing them"?

    I believe agency had a duty to respond to the email even if they truly believed that person A had the document

    In which case, I see that as a failure to act hence a victimization claim

    Please your views and any relevant case law

    Thanks


  2. #2

    Default Re: Could failure to respond to email a failure to act?

    Hi DDicon. Why do you say alleged failure to act is victimisation please?


    And are you person A?


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  3. #3

    Default Re: Could failure to respond to email a failure to act?

    is employment agency party to the action? If not then they cnat be forced to hand over documents without an order but getting that order should be straightforward


  4. #4

    Default Re: Could failure to respond to email a failure to act?

    Quote Originally Posted by dondada View Post
    Hi everyone,


    Could a persistent failure to respond to two emails and a phone callicon be seen as a failure to act?

    Background

    Person A took a company B to Tribunal on age discrimination grounds

    Person A asked his agency C for relevant documents

    Agency C failed to respond despite two emails and a phone call

    Person A now makes allegation of victimization against the agency C

    Agency C is now claiming that person A had the document that is why they didn't respond

    Person A didn't have the said document!

    However, my question would be: why didn't the agency respond to the first mail and say: "mate, you have these documents so we are not providing them"?

    I believe agency had a duty to respond to the email even if they truly believed that person A had the document

    In which case, I see that as a failure to act hence a victimization claim

    Please your views and any relevant case law

    Thanks
    Victimisation

    (1)A person (A) victimises another person (B) if A subjects B to a detriment because—
    (a)B does a protected act, or
    (b)A believes that B has done, or may do, a protected act.

    (2)Each of the following is a protected act—
    (a)bringing proceedings under this Act;
    (b)giving evidence or information in connection with proceedings under this Act;
    (c)doing any other thing for the purposes of or in connection with this Act;
    (d)making an allegation (whether or not express) that A or another person has contravened this Act.

    (3)Giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith.

    (4)This section applies only where the person subjected to a detriment is an individual.

    (5)The reference to contravening this Act includes a reference to committing a breach of an equality clause or rule.

    I assume that the above is what you're hoping will apply?

    Has A suffered a detriment as a result of C's failure?


  5. #5
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    Default Re: Could failure to respond to email a failure to act?

    Quote Originally Posted by Ganymede View Post
    I assume that the above is what you're hoping will apply?

    Has A suffered a detriment as a result of C's failure?

    Yes this is what I'm hoping would apply

    The mere fact that Party A has to go through the inconvenience and stress of getting a Court Order is a detriment (in my view)

    Thanks a lot


  6. #6

    Default Re: Could failure to respond to email a failure to act?

    What documents are being requested?

    I'm not so sure that having to make an application for third party disclosure is a detriment. It's just part of the process.


  7. #7
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    Default Re: Could failure to respond to email a failure to act?

    Quote Originally Posted by Ganymede View Post
    What documents are being requested?

    I'm not so sure that having to make an application for third party disclosure is a detriment. It's just part of the process.

    Party A asked agency C for "all" documents

    While "all" document isn't specific but party A expected something

    Agency C should have written back to ask party A what exactly he (party A) wanted

    I personally would have expected agency C to have treated it as a DSAR and sent A's personal dataicon

    In any event, I see the silence as victimization


  8. #8

    Default Re: Could failure to respond to email a failure to act?

    Ok, hope the Court agrees with you.

    I wish your friend luck with their claim.


  9. #9
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    Default Re: Could failure to respond to email a failure to act?

    The silence is unlikely to be considered "victimisation" by a Court for a number of reasons (It is not clear whether you would ask the Tribunal to make such a finding or the county courticon).

    However you can invite the company to provide the documents sought within seven days or you will make an application to the Tribunal for a Third Party order...


  10. #10
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    Default Re: Could failure to respond to email a failure to act?

    Quote Originally Posted by JasJules View Post
    The silence is unlikely to be considered "victimisation" by a Court for a number of reasons (It is not clear whether you would ask the Tribunal to make such a finding or the county courticon)....

    Just curious

    Please, what is the "number of reasons"?

    You didn't state them

    It is a Tribunal case though


    Thanks


  11. #11
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    Default Re: Could failure to respond to email a failure to act?

    Mainly because you have a legal process and a party is not required absent specific matters i.e. an SARicon to provide documents. A court order however is the correct course of action to obtain documents. Therefore a court will not uphold such a claim against a Third Party in this way.

    Then a simpler position, the third party is just that... It is therefore not a party to the original victimisation.

    Of course the OP can lodge a county courticon claim notwithstanding what i have said above, but a reasonable lawyer defending will get the claim dismissed with costs.

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  12. #12
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    Default Re: Could failure to respond to email a failure to act?

    Ok thanks for this

    However, I disagree with you that the 3rd party is not required to provide the document

    I believe they should have but the point isn't relevant now

    The case is that the Worker was ignored

    The Agency didn't respond to his emails and phone callsicon to say "hey mate, we can't give you this for x or y reasons"

    The silence is the issue

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  13. #13
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    Default Re: Could failure to respond to email a failure to act?

    I agree that the 3P "Could" have provided the documents upon request - depending on exactly what those documents were. We do not know if they are "relevant" in any event, though that would be a separate issue before the Court...

    However the bottom line is if you want documents from a Third Party, you ask, if they refuse, you seek a 3P order. They exist in the CPR and Tribunal for a reason..... Thus such a matter would not found a claim of victimisation..


  14. #14
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    Default Re: Could failure to respond to email a failure to act?

    That is my point exactly

    What is the reason for the refusal?

    Is it because they believe the Worker had the document?

    or

    Is it because they didn't want to get involved in an ongoing case?

    My position is that the failure to give reasons at the right time is evidence of an ulterior motive

    It is only during the cross-examination of the person that can be revealed

    Cross-examination of witnesses always reveal their mental processing

    Thank for this as the other side might try and say something similar

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  15. #15
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    Default Re: Could failure to respond to email a failure to act?

    I suspect this matter will be dismissed/ignored by a judge as an act of discrim but I will be very interested to see the outcome.


  16. #16
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    Default Re: Could failure to respond to email a failure to act?

    Good news!

    The other side has settled

    So we would never find out if a failure to respond to emails was a detriment

    Although during the Preliminary Hearing, the judge said it seems weak but he refused to make a deposit order

    The other side just settled

    Anyway, in Deer v University of Oxford 2015, paragraph 48, the Judge ruled that having a sense of injustice is enough to justify a victimization claim

    That gives a very wide definition of victimization

    Anyway, it wasn't tested

    I advised him to take the amount offered as it would save him a lot of stress

    He didn't expect so much anyway


  17. #17
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    Default Re: Could failure to respond to email a failure to act?

    I used the case law AB v Ministry of Justice [2014] EWHC 1847 (QB) in agreeing with the settlement sum

    In that case, someone made a SARicon and the MOJ delayed in responding

    2,250 was awarded

    Although this case wasn't SAR, but he felt the same distress

    I believe he would have agreed to much less


  18. #18
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    Default Re: Could failure to respond to email a failure to act?

    A pity I would have liked to have a decision from the Court but the best outcome for your client is to get a settlement.


  19. #19

    Default Re: Could failure to respond to email a failure to act?

    Isn't it a condition of most settlements that you do not discuss it at all afterwards? And certainly not the amount.

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