Hi,

I have an employment tribunal hearing on Monday.

I worked with respondent for 4.5 years.

resigned because of 4.5 years of harassment, bullying, race discrimination.

Faced numerous ageist comments from one of employees during first year.

Denied promotion opportunities,

put through capability assessment in 2015 which lasted for 7-8 months despite GP advise against it.

It affected my mental and physical health a lot.

Denied smallest of 'work from home' request when contractors and some of permanent employees could use it at will and sometimes for 3 months.

They say contractors are allowed to work from home.

Put contractors in management position and one of them threatened to put me on capability again in 2017.

There is lot more.

salary differences for same position,

giving minimum 1.9% increment for 2 years and

no increment during year when i was put on capability.

Senior managers talking openly that why he doesn't go away!

when i was seating 6 feet away.

Very humiliating.

I can't prove any of these.

I don't feel I have much of a case.

But I wanted to raise it.

I HAVE TO!

I went through preliminary hearing today.

I am representing myself.

And respondent has legal counsel on payroll with whom I had been interacting till now.

But today I saw that they hired external solicitor.

I had just one page ET1 with points as bullet points without much details.

Which a very friendly judge in August helped me to elaborate further during PH.

But it is still very basic and I used same document to prepare witness statement by modifying bit.

I went through CBT in 2015,

psychiatric counselling this year after leaving job,

and again planned in near future.

On antidepressants.

I am claiming six months of salary and pension which I lost while being unemployed.

I have found equal salary job and going back to all this is really stressful.

Can someone please give some highlights of how to go about in hearing.

Today's judge was absolute opposite and all of my requests for extra documents.

Disclosure has been absolutely biased and nothing that helps me.

He was stressing repeatedly that I should prepare for hearing and not focus on peripherals.

I was late in requesting modification to disclosure as new job in demanding and i am still on probation.

What points i should focus on .

What are DOs and DON'Ts.

Please help.

Hello and welcome to CAG.

It's short notice for Monday but hopefully people will be along to give you advice over the course of today and the weekend.

Best, HB

Thanks for support.

What is your claim for - eg unfair dismissal, discrimination (on grounds of ???), etc etc?

What was the outcome of ACAS conciliation?

What is your claim for - eg unfair dismissal, discrimination (on grounds of ???), etc etc?

 

What was the outcome of ACAS conciliation?

It is constructive dismissal on grounds of age and race. I resigned out of frustration for a very long time. My health was also deteriorating and my IBD was at peak that time and was extremely stressed because of tensions at work. ACAS reconciliation failed. Firstly ACAS was not able to contact them withing given timeframe of 1 month. Later on when contact happened , nothing came out.

Some of other people of same position with lot less experience were getting paid 10k more than. One day I couldn't take it anymore and resigned. I have been high performer but not the 'politically correct' speaking type. I asked for promotion in Dec 2014. It was a simple one liner - "Hi xxx/yyy, I would like to discuss my career progression in ZZZZ sometime with you. " And now in witness statement manager mentioned about that email - "I remember being a bit taken aback by the tone of the email at page 82 as normally someone in the same position as AAAA would not send an email like that, however, I accepted that sometimes people can come across in a different way than intended by email and I arranged to meet with him."

Really perceptive people. In 2015 I worked on a big project and despite another developer of same position with me, I ended up doing almost all of the work. Deployment team made mistakes 3 times in deploying in production and it has to be rolled back. And with repeated rollbacks , this manager started having with me catch ups and then started informal capability process which lasted for 6 months.

Judge in today's PH was repeatedly saying - focus on the hearing and claim and not on peripherals. I kind of feel all is related but may end of focusing on wrong stuff which is not relevant to the claim.

It is far too late to provide any effective advice for a hearing on Monday (and I'm mystified as to why a preliminary hearing was held one working day before the hearing), especially since I can't see any case here. You say yourself that you have no evidence of your claims, and I'm afraid that if you resigned without exhausting the grievance procedure, then your chances of winning unfair dismissal or anything else are exceptionally low.

You appear to not understand that a doctor cannot tell an employer that they are not allowed to use their capability process- if your employer says that you are not performing, then that had nothing to do with the doctor, and nor, regrettably, does the tribunal care about it either. The employer is deemed to have the right to manage, and it is their judgement that the law assumes. So if the employer says that you were not performing, then unless you can show substantial evidence to the contrary, that judgement is accepted by the tribunal.

I'll be brutally honest - based on what you have said here, I'm not seeing any grounds for a tribunal. Your complaint appears to be that your employer managed you in a way that you did not agree with. You had no right to work from home - what others do is irrelevant (and contractors are not employees anyway, so they are not a comparator). Contrary to the myth, salary differences are neither uncommon nor illegal. Nor is it unusual or illegal to refuse payrises to people in capability processes.

So the case that you have laid out here is that your employer managed you in a way that you did not like but was entirely lawful; and that you claim they were discriminating but you have no evidence of that. I'm really sorry, but I'm going to have to say that if that is the extent of what you have, the employers lawyer is going to make mincemeat out of you. And that worries me immensely because you do not appear to come across as resilient enough to withstand that. And if that is the extent of what you have, you may also find that the employer goes after you for costs.

Whilst I think I understand your imperative is to have your day in court, that is not something that is without severe risk to you. It is not too late to withdraw. Unless you have something better than you have stated here, I'd have to advise you that it is not too late to go along on Monday and withdraw your case.

can you prove that your treatment was based solely upon those protected characteristics? Proof doesnt have to be in writing but you need to show something so that being treated differently wasnt purely down to soemthing like absence, poor performance or whatever. If they are saying their actions arent related you need to show a pattern.

Judge is right about focussing on the matters of fact, If you are successful then how it has affected you will be used to determine quantum of damages but you have to jump the hurdles first so stick with dtaes and time, company policy, your employment contract and basic case law where applicable. Agree that what contractors can or cant do is irrelevant but dotn agree that other staff are not comparators if you were the only one refused and none of the others were from an ethnic minority it will be relevant. What the court will want to see though is some evidence that there was a scheme in place regardless how informal that people can work from home etc.

Have you anything that shows you have raised these issues beofre? Did you follow grievance procedure- you have suffered for all of the time you were there so there must be something tangible to show you have raised these issues, even informally.

If your application is honest it would be rare to be clobbered by a costs order and usually employers have insurance for claims so they havent really lost anything

The OP has a tribunal on Monday and no evidence. So simply claiming other staff are comparators won't work. The other staff, I'm relatively certain, won't have had two performance /capability processes. So simples - the employer allows flexibility, pay rises, etc etc when staff can be trusted to perform. You have no evidence that isn't the case - and the employer has loads of evidence it is!

We also don't even know if the other staff are comparators. There is no evidence here to say they are - a comparator is more than "Someone else they employ," - there are tests for comparators, and the OP must prove they are comparators.

Remember, the OP resigned. Every bit of their case is for them to prove. And they have no evidence. That's what I have to come back to, because it's what the OP had said. They must prove discrimination and constructive unfair dismissal with no evidence. Opinion isn't enough. So yes, it is possible that a costs order could be applied for. Especially since these days very few employers actually have insurance - that used to be the case decades ago, but these days it's too expensive for most employers.

Ps. sorry I got interrupted and lost my train of thought. But an example of what concerns me here is the OPs comment about the email and the managers witness statement. They obviously think this demonstrates something about the employer. I'm afraid that, to me, it doesn't. I would agree that in many employments that one liner would raise eyebrows and be considered quite inappropriate. The managers response is quite normal. Nevertheless the manager arranged a meeting. Job done. Nothing untoward here - except the OP seems to think this is a denial of promotion. Asking for a promotion and applying for a promotion are two very different things - refusing an asked for promotion isn't going to evidence anything other than, in the managers view, this employee, who isn't performing well, has not really grasped realities. Not giving someone what they ask for isn't evidence of discrimination. It needs more. A lot more.

My concern here is not that the OP loses. That won't be good for them, but it isn't good for anyone. My worry is that the OP has had, for whatever reason, an objectively bad period of mental ill health and does not appear to be over that period. The "I HAVE TO" worries me immensely. Courts of law are not places to settle scores, and they don't dole out justice. Even if the OP is right about everything, without evidence they have nothing and cannot win. But they can't simply walk in and make a whole load of unsubstantiated allegations. Losing isn't the worst thing that can happen. Being ripped to shreds when already vulnerable is. That's my concern.

At this stage they will do what they will do. I hope I'm wrong and they can withstand this. But tribunals aren't easy.

It's too late for now. But learn the lesson. Join a union. Don't stand alone in the future. Even if the news isn't what you want to hear and your interpretation of events isn't right, at least you have an impartial view that's impartial but on your side, and is bothered enough to tell you the truth, even if it's unpalatable.

I never got any warning about cost to respondent and no offers. I believe cost warnings are required to recover cost.

You believe incorrectly. In the first place, warnings are often not overt- there is some evidence here that you may not have heard things in the way they might have been meant. But also, they could apply for them in the tribunal. I do agree that they are unusual - although happening more than it used to - but that is not even the biggest risk here. You have no evidence. You said this. Why are you going to a tribunal with no evidence of your allegations? And have you told your new employer that you are at a tribunal? Hopefully so. Because there's every chance they'll find out.

This is not about what is true. Truth and justice are for Superman movies. Neither happen in a court of law! Or not remotely as often as people think. I simply want you to understand what you are looking for isn't there - but there are things you definitely aren't looking for that might be. If that is a risk you are happy to take, then fair enough. But do be sure that you understand that this is not risk free.