Respondants don't respond

[duck1978]

Hi,

 

Pretty new here but from what I have seen the support and advice on this site is by far the best and wished I had found this earlier!!

 

My situation is;

Me and my partner were dismissed in April 2009

We are claiming for unfair dismissal with racial harassment.

 

The dates are set for a tribunal in Feb.

 

In the CMD we were given orders to comply by and the respondent has failed to comply on both accounts as we have had no correspondence from them.

 

The first part was a ET3 amendment and the second was to send the bundle of docs to us so we can add ours.

 

The firm is a large one and they made a racial remark towards me and dismissed me for something all my team was doing and I was the only Asian in my team, they denied ever giving me this instruction but I managed to get a witness statement of an old colleague that backs me up.

 

I have sent my evidence to them as per the instructions and wrote to them and advised that they have failed to comply on both actions of the CMD, I have written to the ET on 2 occasions advising them that they have failed.

 

I don’t understand why they have not sent them and I’m a little worried that I will get all the info just before the trial date, not giving me enough time to prepare.

 

Can i write to the ET asking them to strike their case out as they have failed on 2 accounts on the CMO order?

 

Also ask for the 4 day trial to be delayed as we do not have sufficient time to prepare?

 

Im still searching for legal guidance on this as my union at the time strangely though I had less than 51% chance of winning but I have sent them the new statement and that may change their mind.

 

Look forward to hearing from you.

 

The organisation me and my partner worked for are a very large company.

[Guest Old_andrew2018]

You could send a PM to some of the HR/Employment experts asking them to look at your question, include a link to your thread

[monkeychicken]

Good old old_andrew, filling up peoples inbox with links to various threads!!!

 

Duck1978

 

I too am running an ET case, my case too was judged (in march 2007) to have no prospect of success and I have had to steer my case through numerous CMD's etc. But I have recently (March 2009) discovered some documents which changes the whole case around and now the Unions supporting me and the Barrister thinks it got very high chance of success.

 

So I have some knowledge and experience in very similar situation.

 

Firstly let me assure you that if they send documents etc at the last minute, you can request ET for adjournment (preferably before the tribunal, so they dont waste court time) and ET will not look favourably into such behaviour by a Respondent. This is especially so since you are an unrepresented claimant.

 

 

Secondly, you do have the option of asking for them to be struck out, but in most cases, EAT have allowed such cases to be reheard. I would instead let them take their time, and give them enough rope. Let them be late and keep good record of each instance.

 

This will build up your standing and dignity with the ET and only when they have done it so many times that it cannot be ignored only then ask for them to be struck out. If they smarten up their act and do not repeat such delays, in the future, you yourself might need a bit of leeway and can use their earlier failure to ask for the leeway.

 

Besides ranting and raving willnever go down well with the ET.

 

 

Also heres a link to a useful website Employment Tribunal Claims: Tactics and Precedents amd try to get hold of the book "Employment Tribunal Claims:Tactics and Precedents" by Naomi Cunningham and Michael Reed I found it very useful.

 

It late now and I have a CMD tomorrow. so I'll finish now. I'll post later with more advice particularly on trying to get Union support.

 

Post with a bit more detail etc if you want specific advice or PM me.

 

Thanks

good luck

[duck1978]

Thanks for the reponse.

 

As the tribunal is in Feb do I ask for the timelines to be changed now as they have not been met. The last handover date for docs is the 15th of Jan which is less than 30 days away and we have had no response from the respondants. Is there a format for how to write a letter to the tribunal judge asking for a strike out or extension?

 

I cant understand why they are using this tactic as it does not favour them well.

[monkeychicken]

Hi

First of all what exactly were the CMD orders R failed to comply with?

How long have they exceeded the deadlines by?

Have you evidence of receipt of your letters?

 

My experience of large organisations is thta they are less than competent when it comes to legal matters.

I suspect this is not a tactic or ploy, simply them being useless.

 

You seem to think you have an excellent chance of winning. So why is the Union assessment so different?

[duck1978]

Hi

First of all what exactly were the CMD orders R failed to comply with?

How long have they exceeded the deadlines by?

Have you evidence of receipt of your letters?

 

My experience of large organisations is thta they are less than competent when it comes to legal matters.

I suspect this is not a tactic or ploy, simply them being useless.

 

You seem to think you have an excellent chance of winning. So why is the Union assessment so different?

 

Hi,

 

the orders were;

1. Ammend ET3 by the 13th November

2. Send bundle of docs to us by the 20th November

 

We had to send our bundle of docs to them by the 4th and did that.

 

The union were supportive to start of with and I couldnt understand why they did not take the case on. They said that we were dismissed for 2 breaches of policy.

 

The second which was a security breach, I could not prove that I was given an instruction to breach it. My entire team had been given that instruction but they denied it. Then I got in touch with an old team mate who confirmed the instruction was given.

 

I have sent that statement back to the union for them to re-evaluate the case.

 

hope that makes sense?

[Guest Old_andrew2018]

As mentioned earlier send a PM to the experts, it will assist you

[Guest Old_andrew2018]

I would try elche

[monkeychicken]

Hi,

 

the orders were;

1. Ammend ET3 by the 13th November

2. Send bundle of docs to us by the 20th November

 

We had to send our bundle of docs to them by the 4th and did that.

 

The union were supportive to start of with and I couldnt understand why they did not take the case on. They said that we were dismissed for 2 breaches of policy.

 

The second which was a security breach, I could not prove that I was given an instruction to breach it. My entire team had been given that instruction but they denied it. Then I got in touch with an old team mate who confirmed the instruction was given.

 

I have sent that statement back to the union for them to re-evaluate the case.

 

hope that makes sense?

Yes it does.

 

Some of the breaches seem to be on fundamental issues (ET3 particularly). This is a significant delay.

 

I would write to the ET and ask for a pHR to have the R to be struck out as respondents, citing unreasonable and vexatious behaviour.

 

This seems to be unusual situation because normally it would be better to xome across as gracious and reasonable, but really it seems to me that you have not much option really - you cannot run a case without a proper ET3 from R. Also take advantage of the ET's leniency towards unrepresented claimants (though this only applies to reasonable ones), by playing the innocent/ignorant role.

 

I'll do a bit of reading to refresh my mind about the form of words (I havent gone down that route so not entirely upto date) and advise you later.

 

I believe they can still contest the remedies and your schedule of loss (have you done one?)

 

BTW my CMD went very well and my Barrister thinks they will offer settlement that includes a promotion and high five figure sum (I was hoping for a six figure amount!).

 

But this is after 2.5 years of running my case unrepresented - the Barrister only came into the equation after I took the union to ET as well, and they eventually agreed to reassess my case as part of the settlement. The reassessment was very favourable to me and eventually in August/ September 2009 they agreed to support my case.

 

So you can do it - you just have to persevere.

 

 

 

 

Old-Andrew, please check with people that they are happy to receive referrals before you encourage others to PM them. Not only is it polite, it also gives the experts a choice as to which thread they donate their time and effort to help.

 

Importantly, please do not direct anyone to PM me - I would prefer to provide help only to those threads I choose to - not that I am an expert in anything except at procrastination.

[Guest Old_andrew2018]

Good morning Moneychicken I advise people to send PM to those members who are happy to receive them.

I also advise some OP's to look for contributers with expertise, then send them a message with a link, this is advised by the forum, it allows the forum member to decide if they can offer advice.

I have as you know never refereed any OP to you, as you suggested in this post that you would prefer not to be contacted in such a way

http://www.consumeractiongroup.co.uk/forum/employment-problems/235314-suspended-facing-disciplinary-hearing.html#post2613581

 

Regards

 

Andy

Edited December 16, 2009 by old_andrew2007
grammer

[MARTIN3030]

The Pm facility is there for member-member use to communicate when theres felt a need,and also for team to contact memberswhere there arises the need.Many users use this as a social tool,others use it to liase between each other to share progress and guidance that concern their own issues.

In the past there has been abuse of the pm facility by those whose intentions on CAG are not quite the same as most-it has varied from spammers,commercially oriented visitors,and in some cases those same people we are challenging.

Whilst CAG does not advocate nor encourage the use of pms to progress cases in regard to information that can readily be progressed in the open,it is accepted that occasionally there will be a need for things to be done discreetly to protect individuals and progress especially where it could be compromising to a result.

The red triangle for help is something that is there to use, in many cases its overlooked in favour of a pm.

Where possible that option should be used,and in doing so you can be at least having the benefit of a team collective effort in deciding how best to proceed or act and know that it will be dealt with or passed to those who are able to deal.

So the message is-if a pm is absolutely essential,and you are fully aware of the risks or possible consequence of sending it,then thats fair enough.

If on the other hand it is something that can be dealt with in the open,or by alerting site team then dont forget to do so.

Quite often some members will use pms because they act in haste and prefer an instant reply seeing the other user on site.But it is better to have patience and have peace of mind with a response that is in your favour albeit not right away-than take chances.

The continued learning process and passing this on to others-can only come from open dialogue-what you write here today-is someones learning tomorrow....but those users will learn nothing if it is locked away in your pm inbox !!

[duck1978]

Cheers Moneychicken,

 

Glad yours went well.

 

I'm going to wait and see what the union say. I found them to respond to the repsondants claim when assesing the case and not look at the evidence I had and found it a little bias. I have asked for the re assesment and will see what happens.

 

Im going to write to the emplyment tribunal judge this week and see what happens. Is it okay if I send you the draft of the letter, i got some free advise of a solicitor who is not an employment law specialist but has had little experience of this.

 

I did my statement of losses and think I did a pretty good job, another solicitor (get as much advise as I can) advised me that she would have calculated pension losses and company car losses. I over inflated injury to feelings as it should work out the same.

 

Found it frustrating to get advise and support in the matter as alot of people want to make a quick buck and score with it. I just want justice as my credibility as a person has been questioned and its the only job I had known and to lose it has left me and py partner in dire staits.

 

Please ignore spelling mistakes if any.

 

As for PM people i will just direct them to my thread to get advise. dont want to hassle too many people.

[duck1978]

Okay,

 

Checked my CMO and today is the last day for them to send the completed bundles to my self and if I dont recieve anything today I will be writing to the tribunal to strike the case out. Also I have not seen theire bundles so I have not agreed anything in them.

 

Since the CMO I have not recieved a single document from the respondants.

 

Is there anything else I need to be doing.

 

The only thing I have not done is ring their solicitors to ask what is going on as I dont really want to as them doing there job is not my responsibility.

 

Can anyone in help writing a letter to the tribunal.

 

Much Appreciciation in advance

[duck1978]

Okay,

 

Checked the post and there was nothing delivered today.

 

This is the 3rd deadline missed by the responadant.

 

Should I send the letter?

[monkeychicken]

I'd wait a few more days - say 3 or 4 days. ET will usually be quite lenient about a few days delay (more so to unrepresented claimants, but many ET judges seem to be quite sympethatic to respondents also).

 

By all means PM me with your letters/ schedule etc or post it in this thread (anonymising personal details of course). I will also be happy to give you my personal email address if you PM me - I tend to check my emails regularly, but only come on this site when I have some time, usually at night. I'll try to help as much as I can.

 

 

Don't ring their solicitors - its their job.

[duck1978]

Cheers Moneychicken will put the letter that im sending on here. Think we will send the letter tomorrow as they have missed 3 dates without a single correspondance and I know we are coming upto xmas i dont want to be going into the new year worrying that it aint been done.

 

I even wrote to them when I sent my bundles in and still no response at all.

[duck1978]

To the employment tribunal honourable judge,

 

CASE REF:

 

 

 

 

 

We would like to ask the honourable judge to strike out the respondents defence as there has been no response to the agreed Case Management Order and find this behaviour to be unreasonable.

 

The directions were as follows;

1. The respondent has permission to amend the ET3 to deal with the allegation of discrimination by xxx by 13th November 2009. Not Received

2. By 20th November 2009 the respondent shall send to the claimants’ copies of all documents in its possession, custody or control which are or may be relevant to the case. Not Received

5. By 18th December 2009 the respondents’ solicitor will produce a bundle of documents and send the same to the claimant. The bundle shall be agreed if possible. Not Received

Actions 3 & 4 of the CMO have been sent to the respondents by special delivery ref: xxx meeting the deadline of the 4th December 2009.

 

We request that the honourable judge make a decision with regard to the quantum.

 

 

Kind Regards

[monkeychicken]

I will suggest some amendments to the letter, but meanwhile, heres an extract from the book Employment Tribunal Claims: Tactics and Precedents, by Naomi Cunningham and Michael Reed for your information:

 

 

Where a respondent has been struck out or was not presented, the tribunal has the power to make a default judgement. A default judgement is a finding in favour of the claimant that is made without a hearing.

 

A default judgement appears tempting because it offers victory without the difficulties of a hearing. In one sense this is true: a default judgement for £1,000 is much the same as a normal judgement for £1,000. It is binding on the respondent and can be enforced in the usual way.

 

Often, however it is in the claimant's interest to proceed to a full hearing, because judgements from a hearing tend to be more secure than default judgements. Default judgements can be set aside on review if the tribunal considers it just and equitable to do so. In practice default judgements are routinely set aside. Provided the respondent's explanation for not responding is not entirely fanciful, a review application will normally succeed. This means that a default judgement is relatively insecure and is likely to be set aside if the respondent attempts to review it. This is surprisingly common. Respondents frequently fail to respond until a judgement is made, apparently because they fail to recognise the consequences until a finding against them is .made. If the Respondent gets a second chance by successfully reviewing a default judgement against it, it is likely to be more strongly motivated to defend itself effectively than if it had been allowed to take part from the outset: it has had the benefit of a demonstration of the risk it runs.

 

The tribunal is less likely to revisit a case where there has been a full hearing and evidence has been heard. Since a respondent who has not presented a response will not be able to take part in the hearing, the prospects of success- unless the case is very weak- -are strong. This means that it is normally better to avoid a default judgement if possible, in order to obtain a judgement that will be easier to defend against review.

This means that even if the R is struck out, you will still have to prove your case and you run the risk of having a hearing if R asks for a review.

But looking at you situation, I guess you do not have much choice.

I am working on a form of words for your letter and will post later tonight or early tomorrow morning.

[monkeychicken]

This is my attempt. Perhaps others can advise if theres any errors etc. Note, I am suggesting that you take full advantage of any sympathy that the ET feels for an unrepresented claimant, so you don't want to make too much of a professional job.

 

XX Any Road

Anywhere

Any County

AN1 1WR

24th December 2009

 

 

The Regional Secretary

XXXX Employment Tribunals

Address

Address

XXXX

PO1 1CD

 

 

Dear Madam,

 

 

Duck 1978 v Useless Employer plc: case no XXXXXXX/09

 

 

I would be grateful if you could put the following to an Emplyment Judge.

 

 

I refer to the Case Management Discussions held on XXXXXX in the above case and the Orders made by Employment Judge XXXX. I am the claimant in the case.

 

 

The specific Orders of concern are the following:

 

 

Order 1. The respondent has permission to amend the ET3 to deal with the allegation of discrimination by xxx by 13th November 2009.

 

 

Order 2. By 20th November 2009 the respondent shall send to the claimants’ copies of all documents in its possession, custody or control which are or may be relevant to the case.

 

 

Order 5. By 18th December 2009 the respondents’ solicitor will produce a bundle of documents and send the same to the claimant. The bundle shall be agreed if possible.

 

 

I can advise that the Respondent has failed to comply with any of the above Orders.

 

 

Not having received the amended ET3 by 13th November 2009, I wrote to the Respondent on XXXX and again on XXXX asking for the document but have not had the courtesy of an acknowledgement let alone a response.

 

 

I continued to ask the Respondent to comply with the relevant Orders as each deadline was passed but my telephone calls/letters/emails have all been entirely ignored.

 

 

In the meantime, I complied with the Orders that required action on my part, namely Orders 3 & 4 and I have sent the respondents XXXX documents by special delivery ref: xxx, meeting the deadline of the 4th December 2009. My covering letter also reminded the Respondent of their obligation to act on the Orders mentioned above, but as yet, I have not had any response.

 

 

The case has been listed for a XXday hearing on XX January 2010.

 

 

Given that Respondent has failed to provide any defence of the case, I cannot see how I can present my case to be heard fairly.

 

 

I have read on the internet that under Rule 8 of the Employment Tribunals rules of procedure an Employment Judge can strike out a Respondent for failing to present.

 

 

Therefore, although I am anxious for a hearing that is fair to both parties, the Respondents actions (or rather, lack of it) leaves me no alternative but to respectfully request the respondent be struck out for repeatedly and consistently failing to comply with Orders and for failing to present.

 

 

Given that I am unrepresented, I am unsure of the relevant procedure, and I expect such action may require a pre-Hearing Review. I therefore respectfully request such, if it is required, where I can provide the detailed justification and the relevant evidence for my request for the Respondent to be struck out.

 

 

I thank you for your indulgence in this matter and apologise for failing to follow any protocols.

 

 

 

 

Thank you

 

 

Sincerely ....

 

 

 

 

Duck 1978

[duck1978]

Thanks moneychicken thats very helpful

 

will use that template thanks.

 

thanks for your help so far its been great

 

will they postpone the date as we have not recieved anything?

[monkeychicken]

They'll probably cancel the hearing and hold a pHR and then set new dates if appropriate.

 

My case has been listed and relisted at least six times (it is now due in September 2010, as it is going to take at least 20 days of hearing). So, the ET does this regularly.

[duck1978]

Cheers,

 

How can they re schedule so many times? I hope this does not drag on forever as its taking over my life.

 

Just want it over and done with lol but nothing ever goes the way you want it too.

 

Still no news on union representation. Is there anyhthing I can do to speed that up?

[monkeychicken]

My case was lodged on 9th March 2007 and is now listed for a month over September 2010.

 

Saying that, my case is particularly complex and finding a continuous period of 20 days free in the diary of an ET is often difficult.

 

Keep a slightly detached view of the whole proceedings - I know its difficult but for your own sanity, you must. My marriage came close to collapse because of my obsession with the case!!

 

 

Anyway please read through this document in this link, particularly sections 8 and 9 of schdule 1

The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004

 

It seems quite positive in your case. good luck and keep us informed of developments