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Harr1

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  1. Hi Sidewinder, Thank you very much for your reply and sorry for the delay in responding. Regarding dealing with the respondents, as I said in one of my previous post my son has declined to talk with the respondents is due to their behaviour before, during and following the ET. So we are now waiting to receive a date for a remedy hearing. The problem Ii have now is working out what remedies my son wants and I would really appreciate any advice regarding how we go about this. I have no problems regarding the reasonable adjustment side of it, but I am having major problems putting a figure on it. To be truthful I don't know where to start. The issues were as follows: 1. Mr P conducted an attendance review investigation with the claimant on the 1st November 2011 and this was seen at pages 363 - 366 of the bundle. Mr Pl ticked the boxes to indicate he had checked the claimants file going back 26 weeks and had also looked at the bigger picture going back more than 26 weeks. He would have seen the research about dyspraxia on his file a and the minutes of the meeting with M D and C O which we have referred to above. The tribunal have therefore found as a fact at paragraph 36 that Mr Pl would have had knowledge of the claimants disability and his evidence that he didn't have such knowledge is found to be inconsistent on the facts before us. The tribunal also raise an inference that Ms S knew of the claimants disability as she had meetings with Mr P to discuss the claimant and she had a meeting with the claimant to discuss his concerns about Mr P's conduct of that meeting with regard to Mr Pl asking him to get a fit note to return to work. The tribunal conclude therefore that Ms S had knowledge of the claimants disability and would have discussed Mr P's attendance review investigation both with Mr P and with the claimant. We conclude therefore that if Ms S did not know he could reasonably be expected to have known of the claimants disability in the workplace. We also conclude from paragraph 38 of our findings of fact that Ms S conceded she had discussions about H&S issues and about the claimant. It was also noted that it was the evidence of Ms S (although the tribunal found no corroborative notes of this) that she was involved in supporting the claimant in the workplace. We conclude from that that she must have known or have been reasonably aware that the claimant required support and had reasonable adjustments in the workplace due to his disability. We conclude that they both had actual or constructive knowledge of the claimant disability. What the tribunal did notice was some of the comments on the pages of the interview notes. For example Mr P at our paragraph 43 above was asked about the reference on page 347 to personality clashes and he explained to the tribunal that he felt there could be "a clash, the way he speaks, the way he talks and might sound to people..." This was a specific reference to the way he spoke in the interview process. Similarly Ms S had written at page 343 of the bundle notes "How he is seen,heard?"Ms S was asked about this comment by the tribunal and she could provide no explanation for these words (this is seen in our paragraph 45 and 47 of our findings of fact). It was evident to the tribunal that the 2 people who conducted the interview both independently made negative comments about the way the claimant spoke in the interview process. The tribunal have found as a fact that in the feedback interview we have concluded that the claimant was told that one of the reasons he was not promoted was due to his communication skills, even though this was denied by Ms S. We conclude from the evidence of both witnesses that they referred adversely to the way he spoke we conclude that that was one of the reasons the claimant was not promoted. 2. We now turn to the issue 24.3 namely the conduct of the meeting by Mr N on 13th February 2012. The tribunal made extensive findings on this meeting above at paragraphs 89 - 104. The tribunal would first like to make some background comments about the meeting. It was not disputed that this meeting was not within any of the respondents procedures and the claimant had no letter inviting him to the meeting. The claimant had no indication as to how the meeting would be conducted or what possible outcomes could have followed from the meeting. The claimant was allowed to take his mother in as a reasonable adjustment but it was noted that Mr N at times was irritated by the claimants mother and it was noted from the minutes that Mr N informed the claimant in the meeting that, were matters to proceed, he would not be able to take his mother to the meeting i future. We have referred to this in our paragraph 101 - 2 of our findings of fact where we conclude that Mr M N in a meeting that lasted over 4.5 hrs was seen to browbeat the claimant and his sole focus was for the grievances to be withdrawn. We also have concluded that the threat that the claimant in future was not allowed to take his mother to a meeting was tantamount to harassment related to a protected characteristic namely the claimants disability and as a result he would be subjected and the effect of this would be to create a hostile, degrading or offensive environment for the claimant. 3. It was also noted that the claimant was at times distressed in the meeting and this was not accurately recorded in the minutes (which were not agreed and we refer to the issue to the minute in our findings of fact at paragraph 4). We conclude overall looking at the manner in which the meeting was conducted, the length of time it took and the tenor of the exchanges that the meeting was tantamount to conduct that was harassment related to a protected characteristic and we conclude that Mr N did call the claimant immature in an attempt to put pressure on him to drop his grievances and whistle blowing complaints. Turning to the specific matter at 24.3.1 that the claimant alleged he was called "immature" in the meeting we have found as a fact and on the balance of probabilities that this is proven. Our conclusions are recorded in our findings at paragraph 94. We have concluded both from the tenor of the meeting and from the consistency of the claimants own evidence that he was at times called immature by Mr and as this would also be consistent by the hostile way in which Mr N was referring to the claimant in the meeting we therefore find the complaint well founded. 4. We conclude therefore on the tenor of the meeting and the way in which Mr N treated the claimant placed him under pressure to drop the grievance and the manner in which the hearing was conducted amounted to harassment as it was unwanted conduct and the effect of the treatment by Mr N, which was clearly related to the claimants disability (namely the way he spoke and presented himself), had the effect of violating the claimants dignity or created an intimidating, hostile and degrading humiliating offensive environment. We also conclude that it was reasonable for the claimant to conclude this taking into account our findings of fact. 5. Mr N was seen to say to the claimant in the meeting (and in the previous telephone conversation) that if he did not agree to drop the grievances, the disciplinary action will continue and he would remain suspended. The tribunal saw no evidence that warning the claimant he was likely to remain suspended could have been harassment or less favourable treatment because of a disability. The claimant had been suspended due to the incident on 1 February 2012 and this had not been resolved. However the tribunal note that the grievances the claimant raised were about potential H&S breaches and allegations that managers failed to follow procedures. Mr N threatened that unless the claimant agreed to withdraw his grievances he would be suspended and face further suspension, disciplinary action and possible dismissal. The tribunal concluded that this was a detriment because the claimant had raised a number of whistle blowing complaints. The tribunal concluded this because we conclude that if the respondent had been genuinley concerned about the claimants behaviour they would have proceeded with disciplinary action, whether or not the grievances were withdrawn and would not have offered to drop the disciplinary action in this way. We also conclude that Mr N reference to the grievances and the disciplinary action being linked was unsupported by any evidence as we have found as a fact that the November grievances predated the suspension and the claimant informed Ms S that he was going to complain about her to Head Office due to her failure to take any action, before he was suspended. There was little evidence that he only raised these complaints because he faced suspension. We refer to paragraph 79 of our findings of fact and where the claimant in his grievance dated the 6th February made a specific reference to H&S issues and attempting to speak with Ms S before his suspension. We therefore conclude that the claimant was subjected to a detriment because he raised a protective disclosure and his complaint at paragraph 24.3.3 is well founded. 6. We have preferred the evidence of the claimant to Ms S in the light of many inconsistencies in Ms S's evidence. The tribunal conclude that the claimant has been treated unfavourably because of something arising in consequence of his disability. We have found as a fact and it is conceded by the respondent that it was a reasonable adjustment that the claimant could go to head office if he had a concern. Ms S was voicing publicly her disapproval of the claimant for doing so. We have already found as a fact that it was her view that the claimant had been dealt too leniently in the past with regard to his grievances and we have found as a fact that this was in reference to the 2009 incidents. It was the consistent evidence before the tribunal that Ms S was dealing more harshly with the claimant and attempting to discourage him from availing himself to the reasonable adjustments that were put in place in 2009. We thus conclude that the claimant was treated less favourably by attempting to avail himself of the reasonable adjustment. The burden of proof therefore moves to the respondent. Ms S has not shown that the treatment of the claimant was a proportionate means of achieving a legitimate aim; she provided no explanation for voicing these opinions or of concluding that the claimant had a legitimate concern about the rat infestation and he feared that his concerns on the 1st February would similarly be ignored. The claimants claim for discrimination arising from disability is therefore well founded. 7. We have also found as a fact that Mr B constructed the letter on the basis of the advise that emanated from Ms S as we have found as a fact that Mr B did not work with the claimant and could not have formed those opinions without her input. We conclude that this is discrimination arising from a disability because we conclude that the claimant has been treated unfavourably because of something arising in consequence of his disability. The unfavourable treatment is that Ms S took no care in going through the claimants file; she misrepresented the extent of the warnings against the claimant and failed to properly transpose into the email and form seeking advice from occupational health, the true state of affairs. It was also noteworthy that Ms S made no reference to Ms D's assistance or to the buddy provided by Jobcentre plus, and how this improved the claimants behaviour (see paragraph 31-2). We have already rejected the respondents evidence that this was a regrettable and genuine and honest mistake. These errors painted an entirely false and negative picture of the claimant and misinterpreted to a material degree his employment history. We conclude that it is forgivable to make one mistake on form of this sort but to make a number of mistakes as to the relevant factual matrix prior to seeking occupational health advice cannot be put down to a genuine mistake. The claimants claim in respect to 24.10 is therefore well founded. In addition to the points above the EJ also noted that; 1.With regard to the meeting on the 13th February the respondent did not follow any procedures. It was not disputed that the notes had not been agreed and indeed Mr M N didn't even sign his own minutes. There was no procedure that applied to this meeting because it was outside of the disciplinary and grievance process 2. The tribunal now turn to matter 24.3.3 of the agreed issue namely that the claimant was threatened with further suspension. We also wish to deal with in the same point with 24.3.4 about the respondent not following the correct procedures. It was noted that the claimant was not suspended by Mr N and it was unfortunately a reality that the claimant had been suspended pending an investigation which was conducted by Mr L and Mr L had to continue with that investigation, under the respondents own procedures the claimant would remain suspended until either the investigation was completed and a disciplinary held or no case to answer was found or if the respondent decided not to proceed with the disciplinary. Obviously there is a lot more to the judgement than what's here, but I think I've included the main bits. Thank you very much for editing the post accordingly. Just out of interest, I thought that as the case was heard in public the judgement can be made public, is that correct or do I have that wrong? Also what can happen as a result of posting details of the case online? Can it interfere with the proceedings and in what way. Sorry for what might appear to be mindless questions but I thought that once a judgement was made nothing could change that . The reason I am asking is because I have been documenting the judgement online and I intend to do the same with the remedies. in the hope of helping others who find themselves in a similar situation to my son, in addition to helping students who have an interest in that area. . Thanks in advance for any reply.
  2. I just want to add a bit of news we received today .... Letter dated 20th December 2013 Dear Sir Mr H V XXXXXXXXXX In accordance with rule 30 of the employment tribunals (constitution and rules of procedure) regulations 2013, please find enclosed a copy of an email sent today to the Employment tribunal on behalf of the respondent, the content of which is self explanatory. If you have any objection to this correspondence, please raise it to the tribunal as soon as possible. XXXXXXXXXX UKLPP Dear Sirs Mr H V XXXXXXXXXXXX Claim number XXXXXXXXXXXXX We write further to the tribunal judgement on this matter which was received by the respondents representative on 18th December 2013. The tribunal has given the parties 14 days from 17th December to try and conclude the matter without a remedy hearing. It is our view that given it is the start of the Christmas period, it will not be possible to have a meaningful discussions regarding settlement over the next 14 days, partly as the solicitor who has had continuous dealings with this matter is currently out of the office and ill only be in the office on one day before 2nd January 2013 (although I'm sure they means 2014) and the relevant ACAS conciliator dealing with this matter is out of the office until Monday 6th January 2014. Given that the decision was sent to the parties just before the Christmas period on 17th December 2013 we request that the parties are given an additional 14 days from the 2nd January 2014 to explore settlement before a remedy hearing is listed on this matter. We confirm that the claimant has been sent a copy of this email in accordance with rule 30. XXXXXXXXXXXXXX
  3. Can I just add that within the judgement we were given a letter which gave us the option of dealing with the respondent or dealing with the ET regarding remedies. We have replied by telling them that we want to deal directly with the ET for a number of reasons. Is there anyone that could tell us what would be expected of us at the remedy hearing and what it entails, how long is it likely to last (this was a question that was put to us to decide, but we didn't answer as we have no idea what is involved). In the end although pro bono picked up our sons case, because of the limited time between them becoming involved and the date, we had to go it alone. Our son had no witnesses, was represented by his mother (who was up against a barrister), had a number of false statements made against him, in addition to having to stand up against 7 managers. Was it scary, you bet, was it worth it, we hope so :0)
  4. Hi, I just wanted to inform those of you who have been kind enough to offer advice or who have been following this thread, that the judgement was received yesterday from the London South Employment Tribunal office regarding the claim put in against the largest supermarket chain in the UK, and possibly the world. I would like to name this company, but I'm not too sure if I can, so I will refrain from doing so, until I receive any advise via the forum. The judgement is/was as follows: 1. The claimant was subjected to a detriment on the grounds that he raised a protective disclosure. 2. The claimants claim for direct discrimination was not well founded and is dismissed. 3. The claimants claim for harassment is well founded. 4. The claimants claim for disability related discrimination is well founded.
  5. Hello Sweet Lorraine and thank you for responding. Well the last 24 hours have been very busy. I've had about 2 hours sleep, so looking forward to my pillow tonight! Anyway ... I agree the break in the hearing has turned out to be a real blessing in disguise, so we're making the most of every single second. I agree with you entirely regarding your comment A little knowledge can be a dangerous thing. I don't know even 0.5% about employment law, but it's a 100% more than I knew a week ago :0) After posting this I will take a look at the thread you mention. I may have read it, but to be truthful I have been reading countless threads/articles/law cases/ stories etc, so although I may have read it, it has probably got lost with the rest of the information I have been trying to digest. I will take a look just in case i haven't read it. Regarding getting the CAB to refer us to BPBU. - The CAB were very very helpful in doing everything they could to refer us to the BPBU. We can't thank them enough. Regarding the "gateway people", we've no idea as we didn't need to go down that route. If you go to the BPBU website, you can download the referral form there. You can either download this and fill it in the old fashion way using a pen, or fill most of it in online although you can't do the ticks in the boxes. Once it's printed you simply fill it out, check it over, tick the required boxes, then finally take it down the CAB. You probably already know this Sweet Lorraine, but I'm just mentioning it in case there is somebody reading who doesn't know :o) Doing it before going to the CAB just speeds things up, besides it's always easier to fill forms in when your'e in the comfort of your own home. Right back to the tin ter web I go. days. Thanks again for replying Sweet Lorraine, at least I know my questions are being read by someone :0)
  6. Hello Emmzzi, A friend of ours used a NWNF solicitor to represent her in a case. Unfortunately the solicitor didn't familiarize himself (enough) with her case. As a result it was our friend that had to bring important points to his attention. She did win her case, but she doesn't think she would have had the points she mentioned not been addressed. She also had to pay him 35% of the compensation she won. However, as I have said previously we have decided to meet with the one suggested to us by the CAB. After all every ones experiences are different.
  7. Hello Steampowered and thank you once again for taking the time to reply, Sorry I don't think I have made myself clear. My sons case recommences on the 7th October. The BPBU need to receive the case 3 weeks before the case restarts. In order for my son to have his accepted within the 3 week deadline, he will have to hand everything in to the BPBU by this coming Monday. That way it will give them the 3 weeks they need. Regarding the NWNF solicitor. As a backup this morning I did phone the NWNF solicitor who was suggested by the CAB yesturday. We have made an appointment with him for Monday, where he will look over our sons case and see if he can/will take it on. All this for a fee of £25.00 which we thought was very reasonable? We went down to another CAB today, they filled out the BPBU referral form and they told us to take it down to BPBU in London with any supporting documents/bundle/s. This we have now done. The person at the BPBU have told us that they will now merit the case and get back to us within 3 days. And then it's a case of seeing if a barrister will pick the case up. They did tell us that normally they only take on cases that are 3 days long, because they can't expect a barrister to take on 5 days of unpaid work (which we completely understand). They also said that if they couldn't represent us then they might be able to get a barrister to give us some advice on cross examination etc. Unfortunately as we haven't been able to get hold of a transcript, we have had to hand the information over without this. I really hope that this wont make the difference between acceptance and refusal of his case. Fingers crossed! All we can do now is hope for the best and carry on researching as much as possible in case I do need to represent our son, which is looking even more likely now. As always Steampowered thank you very much for taking the time to respond.
  8. Hi Sweet Lorraine and thank you for your comment, Yes that's exactly what they've told us, although this isn't what we were told by the CAB. Anyway the progress made so far in regards to seeking representation: CAB have told us that they weren't aware of this and she recommended a NWNF solicitor, who she said she had had personal experience with and who she thought was very good. However we have decided against this, as we have read too many negative things regarding these types of agreements. I then got into contact with the Bar Pro Bono Unit (BPBU), which has thrown up a few problems in itself. I explained to the lady on the phone what had happened. She said I was to go back to the CAB and get them to refer us to them using the BPBU form. She said that they had to receive it 3 weeks before the case, which is Monday. She also told me that as the case had already started that we had to get a transcript of the hearing. I rung up the ET center where our sons case is being heard and I explained to him what I had been told by the lady at BPBU). He said that recording/transcripts are not allowed during any hearing and that they would know that. I said thank you then got straight back into contact with BPBU. I told the lady at the BPBU what the person at the ET center had told me. After seeking some advice from a colleague she came back onto the phone and asked me if we had taken any notes. I said yes. She said that we could add those in with the additional information, and see if that would be OK. This afternoon we went back to the CAB to ask for a referral for the BPBU, but unfortunately they don't take part in the scheme (apparently CAB's have to be a part of a scheme in order to refer to the BPBU). This evening we went to another CAB, which we have to go back to in the morning. We have been told that we have to see the gateway people? and it will be down to them to see what they can offer. So we'll have to wait and see. I must say, I have been doing quite a bit of reading, and although I know very little about employment law, it's amazing how much you can pick up if you just devote time time and even more time to researching the subject. Put it this way I feel more confident now of representing our son if I have to, than I was even 48 hours ago :0)
  9. Just an update... Just spoke with the CAB office that sent us down there and explained what happened. We are now waiting for them to phone back, to see what else can be done. If there is any information I find out that is useful, I will be sure to post it here, in the hope it helps somebody else.
  10. Hello Steampowered and thank you for responding, Our posts have over crossed. Yes I think we will go back to the CAB and see if we can sort this out. We have very little time left, so panic is starting to set in now :/
  11. I guess thinking on it there's no harm us going back to the CAB to let them know what happened. Maybe they could offer us some further advice.
  12. Hello again Steampowered, We didn't submit the claim our self. We went to the CAB last week. We then attended another pre-arranged meeting with them on Tuesday. On Tuesday after our meeting with them they gave us a FRU referral form, which they told us to take down to Grays Inn Road, London, along with bundles and any other documents we are relying on. This we did. It was at this point we were told that they couldn't represent our son because his case had already started. If we have been told the wrong information I would really like to know, so that we can go down again and try to sort the confusion out. Once again thank you for responding.
  13. Hello Phaitun and thank you for replying. Regarding DDA and whether our son fills the criteria they set down. We think he does. He has had the conditions since birth and there is no cure. He is slower than the average person in many areas, doesn't fill in forms, doesn't do phone calls as not only does his speech become worse, he can also have problems understanding what is said and his response times can be slow, which makes him worse. There are a few more areas where he is affected, which have all been disclosed to the ET. All we can do is hope that with all the evidence that has been provided, that they do think he meets the criteria for DDA. Thank you very much for the information regarding bulliesonline, I will give that a look. Once again many thanks for responding.
  14. Hello Steampowered and thank you very much for your reply. Thank you for clearing up the confusion regarding the disabilities as being accepted, I genuinely thought that they had been. I will do a little more reading regarding this area of the law as to be truthful it's not an area we've been concentrating on, because to us it is obviously a given fact. Regarding FRU, no that's exactly what they told us, when we went to the office in London Yesterday, complete with a bundle and various other bits and pieces. They told us that they only take on cases that have received a start date. They said that as our sons case had already started they could not take his case on. They then gave us the phone number for the Bar Pro Bono Unit. I have tried to phone the Bar Pro Bono Unit this morning, but there was no answer, so I had to leave a message on their answerphone. I just wish the CAB would have told us this last week, as they were aware that the case had already started. Never mind, these things happen. Once again thank you very much for taking the time to answer.
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