Thanks HB. Had no idea when I started this process how stressful it would be, but we almost at the end now. Full merits hearing is scheduled for 26th April - 02nd May 2013, so lots to do in a short space of time. DJ

Thanks Pus, A brief outline of events this morning at the PHR. The judge granted my application to amend my claim if disability discrimination from failure to make reasonable adjustments, to one of direct disability discrimination. He also granted the respondents application to amend their grounds of resistance with regards to the documents I disclosed to myself and my wife. There is to be no changes to the bundle and anything I want included that is not I will have to put in a secondary bundle. So annoyed about this one as he has effectively condoned the respondents attempts to control the bundle. I felt the judge was very biased in favour of the respondent, but nothing I can do about it now. Must remain focused on the direct disability discrimination claim and my former managers failure to send me for a risk assessment, which technically is out of time. Onwards and upwards. DJ

Evening all, I have the CMD to decide my application to amend the discrimination claim from failure to make reasonable adjustments, to one of direct disability discrimination. Am as confident as I can be with this and it will be the judge's decision tomorrow. The respondent have also submitted an application to amend their grounds of resistance in relation to the discovery that I had forwarded two emails and a financial settlement agreement to my personal email address and that of my wife, roughly one month before I resigned and claimed constructive dismissal. They are relying on a confidentiality clause in the contract of employment and say had they known at the time I would have been summarily dismissed for gross misconduct, but no where in the employment contract does the forwarding of "confidential information" amounts to gross misconduct. I know Emmzzi you said it all depends on what is in the IT policy, which I have asked for a copy of but as yet have not received. Can anyone offer some assistance with the respondents application to amend? Thanks DJ PS. The respondent is controlling the full merits hearing bundle and being obstructive by rejecting every document or piece of evidence I ask to be included in the final bundle. They add new documents as and when they see fit, but have rejected every single document I have requested be added. As we are in court tomorrow, what would be the proper way to deal with this?

Thanks Pus. Yes the policy definitely says anyone with more than six absences in a twelve month period should be red flagged for special assistance. So the fact that someone who did not have a mental illness but otherwise identical to my circumstances who hypothetically had more than six separate absences and was red flagged, that would show direct discrimination? DJ

Excellent, Thanks Pus. The document in question they did not disclose under normal procedure, I just happened to email them asking for a copy of their leave policy and they sent it through. That is exactly my point, I should have been red flagged on five separate occasions and was not because my condition was depression and my former manager had said to me when I told him about my condition, "I know a lot of managers do not believe depression is a real illness, but I am not one of them" and then smiled at me. This policy is key, they did not follow their own policy. They have submitted their application to amend their grounds of resistance to be heard at the cmd on Monday next. Will see what the judge has to say then. I don't see how you conclude my comparator of someone without depression would have been red flagged after six separate absences in a 12 month period is indirect discrimination though. Can you explain please? DJ

Ok, a comparator is needed in a claim of direct disability discrimination. The respondent have doubled their offer to settle on a commercial basis due to increasing legal fees, but it is still not enough for me to settle and anyway I want to get them in court. There are so many inconsistencies in their evidence and they have even forged documents after the event. Could really use some help though with the direct disability discrimination claim though, as that is the main topic for the cmd on Monday. So their policy says manager is responsible for managing unplanned leave and should always be alert to signs special assistance may be necessary. One of the red flags for special assistance in the policy is any leave for a mental health condition. I had five separate periods of leave due to depression and anxiety, but my former manager never referred me for any special assistance. My claim is that this was because of my mental health condition. The policy also identifies a further trigger of the possible need for special assistance as more than five separate periods of leave in a 12 month period. So my comparator would be a male employee having been working in the companies finance team for eighteen months who does not have a mental health condition would have been referred to occupational health following the sixth period of annual leave within a twelve month period. Have I got this right? DJ

A quick question please, Can anyone clarify whether a comparator is needed for a direct disability discrimination claim please, I am getting conflicting stories. DJ

Thanks steampowered, I believe there is an IT policy but do not have access to a copy, maybe I should go back and ask them for a copy? I realise they are really clutching at straws and this is not the most serious of cases as I did not disclose the documents to any third party and the documents would never have had any real value even if I had. The next CMD has been listed for next Monday 25th at 10am to decide my application to amend the claim of failure to provide reasonable adjustments to one of direct disability discrimination. The respondent has indicated that they will be submitting an application to amend their ET3 at the CMD. Their amendments will be : 1) Had the respondent found out about my taking of their confidential information this would have lead to my summary dismissal and/or 2) I would have been summarily dismissed for failing to give an undertaking in reasonable terms which would have caused a breakdown in trust and confidence and/or 3) It would not be just and equitable for you to recover compensation for your wrong doing aggravated by your refusal to undertake a proper undertaking relating to documents. (referring to my refusal to sign an undertaking that I will give the respondent access to my laptop and personal email address, presumably to see if I have taken any other documents.) DJ

Thanks Pus, Well obviously I did not give in to their threat by withdrawing my claims by 15th March, wonder if they really thought I would. I did not have any choice but to admit I am guilty, because of a stupid mistake I actually sent them the email I had sent to myself with their documents. However we are not talking about classified information or anything of the kind, it basically was a list of outstanding balances owed to my former employer from one of their creditors. I had emailed it to myself just before I left as evidence of the extent of the work I had done to recover the outstanding balance in full. They are still making a big song and dance about it and quite frankly I am inclined to agree with you Pus and not get drawn into any further communication with them on the issue. They have declared their intent to apply to amend their ET3 at the next CMD (which they have objected to saying it is not needed) and will let the judge make the decisions. Have I understood you correctly Pus, that there is no need for a comparator in a direct disability discrimination case? DJ

Thanks Emmzzi, The respondent are relying on a confidentiality clause contained in my contract of employment. It basically says: "For the purpose of this clause, confidential information means all information in any form or medium relating to past, present or future operations or affairs of ABC Ltd .......... The employee must not use, disclose or copy any confidential information relating to the company or any of it's customers, except in the proper performance of the employees duties." I think they have me on this one, but fail to see how they suggest they would have known about me having sent a document to my personal address, if I had not been careless enough to disclose it to them in an email chain of documents. They are applying to amend their ET3 anyway, so we will see what the judge says at the CMD. DJ

Thanks Emmzzi, Unfortunately my new barrister is instructed under the direct access scheme and is therefore very much restricted on what they can do. Basically they cannot do anything a solicitor would normally do. DJ

Bump! Could really use some help her guys. Also respondent has informed me today they will be submitting an application to amend their ET1 at the forthcoming CMD because had they known about the confidential documentation I would have been dismissed. DJ

Hi All, Really could use some advice. One of the claims that I had originally submitted was one of failure to make reasonable adjustments. My argument was that the respondent did not have any policy in place that after x number of sickness absences the staff member would be sent for a risk assessment/occupational health assessment. The just before the PHR in January the respondent disclosed among their documents such a policy that says any absence for "mental illness" should be referred for additional support. So my barrister submitted an application to amend the claim to one of direct disability discrimination. Have now got a new barrister and what I am struggling to explain to them is the comparator. I do get that this can be a hypothetical comparator and should in all considerations be not materially different from me with the exception of my mental health condition. My question is, where the direct discrimination has occurred from the respondents breach of their own policy, is a comparator really necessary? Any advice/suggestions gratefully received. DJ

Ok, good point Emmzi. Did not think of that one. DJ

Bump! Is the paragraph above an adequate response? Also is the sending of "confidential" documents to my personal email address just before I resigned and claimed constructive dismissal really not grounds for gross misconduct and therefore dismissal? Respondent has requested a response by 4pm today, any feedback/advice really appreciated. DJ

Thanks Emmzi, Is there not grounds for requesting a support person to attend here? DJ

Thanks Pus, I have no intention of signing their undertaking. It is an absurd request to ask me to allow them access to my laptop and personal email. So something along the lines of further to your letter dated 12th March I have already permanently deleted from my possession all document referred to and have no intention of granting your client access to either my laptop or personal email. Neither shall I be withdrawing any of my claims against your client. I have also received a letter from the ET today informing me of a CMD that has been listed for next Wednesday to decide whether or not to allow my amendment of claim from failure to make reasonable adjustments to direct disability discrimination which has me confused a bit. You may remember the counsel representing me at the PHR (who is no longer representing me) decided my claim should be amended and the judge ordered that an application be submitted in writing. This was done and then the judge asked for a copy of the redrafted ET1 and I responded to the judge that it was not necessary to redraft the ET1 because the claim for direct disability discrimination was already pleaded in my original ET1. Respondent replied by letter stating that the amended claim was out of time and now the judge has listed the amendment of claim for a CMD next week. Of course the respondent have submitted a response to the CMD listing, claiming that there is no need to hold a further CMD as the application to amend should be decided on the written evidence. DJ

Hi EmMil, No surprise that the outcome of their "investigation" was not the one you wanted. They are not going to admit to wrongdoings that may expose them to legal action at a later date and of course they were always going to cover up your managers shortcomings. This must feel really frustrating, I remember what it felt like when the same thing happened to me. In my opinion it is decision time for you now. What is the best outcome for you? You have indicated that you do not want to return to the same position to be working under the same manager. It does appear they are not willing or maybe do not have another position to transfer you to. So as I see it you have two options: 1) Submit an appeal against the grievance outcome which will probably not change the outcome, but bring you one step closer to being in a position where you may be able to resign and claim constructive dismissal. However this is a notoriously difficult claim to prove and the stress of going through the employment tribunal process is a big undertaking. 2) You try to reach a compromise agreement with your employer. This would definitely need some of the more experienced caggers here to advise you, but if you are adamant you cannot return to working for your current manager this may be an option worth exploring. The only other thing I would say is make sure you have someone with you at the meeting with your regional director. Good luck DJ

I need some help please guys. On 3rd March I sent some documents to the respondents solicitor requesting that they be added to the final bundle, due for release tomorrow. Unfortunately I did not realise that two of the documents had not been disclosed by the respondent and in fact the only reason I had them was I had forwarded them to myself while I was still employed by the respondent. They have picked up on this and are treating it as a breach of confidentiality and asked me to sign an undertaking to disclose all confidential documents I had sent to myself (there were only these two) to permanently delete those documents from my computer, email etc and to grant with reasonable notice access to my laptop and personal email address so the respondent can ensure all confidential documents have been permanently deleted. I did disclose the two documents and confirmed they had been permanently deleted, but refused to grant them access to my laptop or personal email. The respondent has come back to me threatening to get a high court order to disclose the laptop and email if I do not sign the undertaking to grant them access. They are also claiming that sending the documents to myself amounts to breach of confidentiality, the implied term of faithful and loyal service, the implied term of trust and confidence and that my claims will not succeed because they would have sacked me anyway for gross misconduct. The respondents solicitor then goes on to request that I withdraw all claims against their client by Friday 15th March or else they will pursue me for their costs. I realise their threat of costs means little, but have I completely blown the case? DJ

Surely that is unfair, as they could amend their evidence according to how I present mine, assuming the claimant goes first. DJ

Bump! Anyone able to answer the question about witnesses ? DJ

EmMil, I have through the same experiences as you although not over such an extended period of time. It sounds to me that your manager feels threatened by you and she is trying to performance manage you out of the company. Now you would think, as I did that a manager would be really pleased to have an employee that is good at their job and willing to go the extra mile to get things done. Unfortunately as I found out at my own expense this is not the case where the manager feels insecure in their role and then views you as a threat. In some way she probably fears she will be managed out of her role and knows you would be well capable of taking over, or even worse you might get promoted to a higher position than her. Therefore it has become her project to undermine your performance at every opportunity. Like you I submitted a formal grievance which was rejected and an appeal which was also rejected. By the end of the process I realised that management were never going to admit to anything and are only interested in covering their own backs. Even worse, they often have absolutely no regard for an employees wellbeing and health. In the end I just could not take it anymore and had to resign, claiming constructive unfair dismissal. However as you have rightly pointed out it is very difficult to find a new job at the moment, especially when you have to answer difficult questions about why you left your previous job. Therefore I strongly recommend you consider your options carefully before making any kind of rash decisions. I suggest you go through the grievance process, making sure you have someone with you at all meetings to verify what was said or done and make sure you get copies of minutes. When asked what outcome you want from this process I suggest you ask for a transfer to a different manager. You have clearly done everything possible to try and work with her, but she is a woman on a mission and that mission is to get you out. If not through performance management, then she will make your life so miserable that eventually you will be forced to resign. I have my full merits hearing commencing at the end of April and I can tell you it has been a nightmare getting to this stage. The impact on my health has been significant and on my relationships with friends and family, but I know that in order to get closure for myself and finally put this whole sorry business to bed and move on with my life, win or lose I have to see this process through to the end. There are a number of charities that will provide you with good legal advice free of charge, depending on what part of the country you are in. If you don't want to say in the public forum, feel free to pm me and I will send you some details. Stay strong DJ

HI Guys, Just a quick update. I did respond to the judges' request by pointing out that the claim for direct discrimination was already pleaded in the original ET1. Have not received any further correspondence with regards to this. I have completed the second draft of my witness statement but am a bit concerned that it is 37 pages long with 10,000 words. However I have been through it again and again and cannot see how I can cut anymore off it without leaving out key points. Following extensive research I came to learn that it is possible for a member of the public to instruct a barrister directly without the need for having involvement from a solicitor, thereby greatly reducing costs. It is important to say though that not every case is suitable for the "direct access" scheme and also that not all barristers are able to accept instructions through the scheme. Anyway I contacted quite a few chambers and have secured a barrister who has reviewed my case and agreed to provide direct access representation. The amount of savings in legal costs is very substantial and I am very much more at ease now having secured representation for both preparation of the case and at the full merits hearing. A quick question, does anyone know if the respondents witnesses are allowed into the court room before they give their evidence? I know they cannot in a criminal case, but wondered if the same applies at an employment tribunal? Many thanks DJ

Thanks Pus, So the judge is asking me to rewrite my ET1 to include the claim for direct disability discrimination? The thing is my original et1 includes the claim for direct disability discrimination, but up until the PHR it had been labelled failure to make reasonable adjustments, thus counsels argument that this is simply a relabelling exercise and not a new claim. DJ

Sorry Pus, I don't understand what you mean by the ET1 claim in its new form with the new wording. Unfortunately I am no longer represented, could not afford the huge costs past the PHR. DJ