Help - What is a ‘vary’ or ‘set aside’ an order in ET and how do I do it?

[MisTaken]

I am taking my employer to employment tribunal, I have submitted ET1 and they have responded with ET3.

 

I have received an order from the court in regards to dates for document disclosure and exchange, and exchange of witness statements.

 

I am disabled, and in need of more time than the ET has allocated for retrieving, documenting and presenting documents as part of my evidence bundle. (I have been in receipt of the ET3 for 3 weeks, and have been preparing my ‘request for specific documents’ but have has a relapse in health which has delayed this request to the ex-employer).

 

I have previously tried to explain my limitations in a previous letter to the court, but I do not feel I fully explained my disability and how it prevents me from preparing my case in a reasonable time.

In order to ask for a delay to the dates allocated for this case I’d like to ask for some advice.

The order states, ‘if the order was made in the absence of the parties either may apply to the Tribunal to vary or set aside the order, but must do so before the period for compliance with the order has expired.’ I am concerned as I only have a couple of days in which to apply for this.

I do have a copy of an excellent ET claims book, tactics and precedents but this doesn’t really explain what a ‘vary’ or a ‘set aside’ is. Can anybody explain the difference in these to me?

 

Is it reasonable request by me to request a delay in listing/exchanging documents for a couple of months to ensure that I am able to compile a substantial defense bundle?

 

How do I go about this? Is there an example document on the internet anywhere which I could use as a skeleton?

 

Thanks

Mistaken

[SarEl]

The order can allow a bit of extra time to get together your documents if ypu ask for it. But it is a bit. Not months. If you do not provide the documents In a reasonable amount of time, your case will be thown out. That is what it means. Books are fabulous - they are not lawyers acting on your behalf. You either have a case or you don't. You cannot have a whole load of time to be fit enough to present your case. If you are not fit enough, you must get a lawyer to do it for you. The tribunal will not wait too long...

[MisTaken]

Hi sarel,

Thanks for your advice. The main reason for me not presenting the evidence is because I need to attain much of it from the respondent. Some of this will be through a DPA request, as well as a direct request. I haven't been able to request them yet to a relapse in my health. This is a problem in that it does take me a considerable amount of time to write letters with the help of carers. I am registered disabled, would this have any influence if if requested a few months delay in the collation of evidence?

 

The problem I also have is that 2 weeks to respond to the documents when supplied by the employer is not enough time for me to prepare to present as evidence. I have requested 2 subject requests to them over the past few years (for something else) and they are terrible in that they refuse to provide documents which I know exist and which are fully covered under the DPA. I know that there will be a bit of back-and-forth in trying to retrieve documents from them.

 

Are you able to explain what the difference is between a 'vary' and a 'set aside' of the order?

 

I have also spent a few thousand pounds with a solicitor in trying to negotiate a compromise agreement with them, which I was unable to sign as they refused to provide me a copy of my contract of employment. I was unable to sign as I could not commit to the clauses. This means that I do not have the funds to pay for a solicitor to represent me. I did have one to assist the completion of the ET1 and he advised all claims were realistic, i.e. I do have a case.

 

thanks

[SarEl]

Oh dear - i hate these sorts of questions. Because I know what is coming! don't shoot me!

 

Hi sarel,

Thanks for your advice. The main reason for me not presenting the evidence is because I need to attain much of it from the respondent. Some of this will be through a DPA request, as well as a direct request. I haven't been able to request them yet to a relapse in my health. Sorry, but the tribunal will only give a limited amount of leeway. They don't have a right to give any more. They do everyting they can for someone represnting themselves - but if you don't meet the deadlines you are risking your claim.

 

This is a problem in that it does take me a considerable amount of time to write letters with the help of carers. I am registered disabled, would this have any influence if if requested a few months delay in the collation of evidence? You certainly won't get months - weeks maybe.

 

The problem I also have is that 2 weeks to respond to the documents when supplied by the employer is not enough time for me to prepare to present as evidence. I have requested 2 subject requests to them over the past few years (for something else) and they are terrible in that they refuse to provide documents which I know exist and which are fully covered under the DPA. I know that there will be a bit of back-and-forth in trying to retrieve documents from them. If the SAR's aren't connected, then they are not relevant. The tribunal will take into acount the faliure to provide relevant documents

 

Are you able to explain what the difference is between a 'vary' and a 'set aside' of the order? OO - you had to ask? OK. "vary" generally means that they they are willing to consider reprentations to change it; "set aside" means they won't consider it - it doesn't exist. But you are asking in a vacuum - I don't know anything about the case, so I am doing a best guess.

 

I have also spent a few thousand pounds with a solicitor in trying to negotiate a compromise agreement with them, Hmmm - i saw that coming!

 

which I was unable to sign as they refused to provide me a copy of my contract of employment.And if it was a CA - why would that even be relevant?

I was unable to sign as I could not commit to the clauses. This means that I do not have the funds to pay for a solicitor to represent me. I did have one to assist the completion of the ET1 and he advised all claims were realistic, i.e. I do have a case. Sorry. I am jaundiced. Of course he did. You were paying. Where is he now??

 

thanks

 

I don't know what you are claining or whether it is realistic. But I do not charge £ thousands to abandon cases either.

[MisTaken]

thanks, details below - I am having problems with quoting your responses so apologies for what looks a bit messy below, I have tried to respond to your comments.

 

 

The problem I also have is that 2 weeks to respond to the documents when supplied by the employer is not enough time for me to prepare to present as evidence. I have requested 2 subject requests to them over the past few years (for something else) and they are terrible in that they refuse to provide documents which I know exist and which are fully covered under the DPA. I know that there will be a bit of back-and-forth in trying to retrieve documents from them. If the SAR's aren't connected, then they are not relevant. The tribunal will take into acount the faliure to provide relevant documents. Yes the request is for documents relevant for my evidence.

 

Are you able to explain what the difference is between a 'vary' and a 'set asdie' of the order? OO - you had to ask? OK. "vary" generally means that they they are willing to consider reprentations to change it; "set aside" means they won't consider it - it doesn't exist. But you are asking in a vacuum - I don't know anything about the case, so I am doing a best guess.

The question for the 'set aside' is relevant to the order as described in my original post. The order from the court which states document list to be exchanged on xx, the documents to be exchanged on xx, and the witness statements to be exchanged on xx. I have been away from my home address for a couple of weeks, leaving at short notice. The order from the court arrived at my home address on Monday 14th Feb, 5 days after it was dated. I am still away from home, and my post for last week was forwarded to me today (I am at a friend house). I have opened the letter/order to discover the document list needs to be with the respondent on Wednesday of this week which is not possible as I am away recovering from a relapse in my illness (which is a common event) and without my documents in my possession.

I understand from the comments on the order, as quoted in post 1, that I need to apply for a 'vary' or a 'set aside' to the order. I do not know what this means so I thought I would ask for advice on the forum in case somebody had already been through this experience.

I have also spent a few thousand pounds with a solicitor in trying to negotiate a compromise agreement with them, Hmmm - i saw that coming!

 

which I was unable to sign as they refused to provide me a copy of my contract of employment.And if it was a CA - why would that even be relevant? I was unable to sign a CA which states the I confirm I have not breached any clause in my contract of employment, if I am not in possession of a up to date copy of my contract. Knowing the employer can not be trusted (historical reasons), I was not prepared to sign such an agreement. They were also trying to stitch me up completely as to the money aspect - hence the ET claim. My solicitor at the time realised the employer would not budge from their insulting offer and suggested, in order to save me money I negotiate with them myself - as they were just ignoring his requests for a compromise. My original solicitor realised they would not back down from their unreasonable offer within the CA, and so I was given no choice other than to walk away from the CA.

 

I was unable to sign as I could not commit to the clauses. This means that I do not have the funds to pay for a solicitor to represent me. I did have one to assist the completion of the ET1 and he advised all claims were realistic, i.e. I do have a case. Sorry. I am jaundiced. Of course he did. You were paying. Where is he now?? I was not in a position to give him 35% of any monies won in the tribunal, due to the facts that if I won the case and I was required to pay him immediately. From past experience with my employer, I know my employer is stubborn just for the sake of it and would appeal if I were to win, and as such I would be in indebted to the solicitor without receiving any funds from the employer. He was more than willing to take the case on, I was unable to due to lack of funds.

 

thanks

[SarEl]

Oh dear - this is getting complicated just on the post. I will try to cover it all without a quote - apologies if I miss anything.

 

You said you had been trying to get SAR's for two years for something else. If it was something else it isn't relevant. If they are relevant documents for disclosure, the SAR's are irrelevant - you ask the tribunal to enforce disclosure.

 

I am sorry, but the fcat that you didn't happen to be at home doesn't matter. You need to contact the tribunal office and explain the circumstances immediately or you will have no claim. "Set aside " in this case means "screwed" - your case is disimissed. They may, as a disabled applicant, give you a little more time - but it is highly unlikely to be months - more like possibly weeks and even days. They cannot take account of your representing yourself in this - that is not their decision.

 

Hmm _ ok - I have reputation for being blunt. You couldn't sign a compromise agreement because you didn't have a copy of your contract of employment. Lame to say the least - and probably why you no longer have a solicitor. Reject it for being too low - if you are sure you have a case. But lacking a copy of your comtract is poor as a reason. Sorry - being blunt again - your had no choice but to walk away from the insulting offer in the CA - so did you not get a hint when the solicitor walked away from you? Sorry - I don't know the case - but lawyers walk away when there is no money to be made. When they do that - there is a weak case left (which is probably what they always thought). I regret to say that some of my colleagues are willing to take cases where money is being thrown at them - no matter how bad the case may be. I don't do that which is why I can afford to be blunt. If you can't afford to pay more money and they walk away - that tells the truth of what they think of the case. And a CA should not - take it or leave it - cost £,000's - £500 on a worst case. If you paid that much for a CA - your employer wasn't the problem!

 

Hmm as I said - he was willing if you paid.

 

I am sorry - I know nothing about your alleged case, so I am not commenting on whether you may have one. But I know a lot a lawyers. I am afraid you met one that I wouldn't give the time of day to. Nobody should spend £ thousands on a compromise agreement - failed or not.

[SarEl]

PS - I just went back to your previous posts here about the CA. Your solicitor, even then, wasn't interested. So why are you still taking their advice - has it occurred to you that they were stringing you along?

[MisTaken]

I have been ordered by the ET to prepare a 'joint bundle' of documents to be used as evidence in my ET but I have a major problem in that the communication between myself and the employer has broken down beyond repair, hence the need for me to take them to an employment tribunal.

 

My employer has not been cooperative over the past couple of years, and each letter or communication I receive from the HR department causes me major stress and impairs my health so that I am prone to relapses in my illness. I am not being oversensitive in the slightest, I am of a strong character but I am in despair with their previous correspondence in that they ignore all that I ask or say and just undermine me in believing only their own statements are right even when they are clearly wrong (with evidence to support this too!).

 

Is it possible for me to ask the ET if I can submit a separate bundle? I have read that the ET are keen to have all of the information in one bundle and frown upon lack of communication between the claimant and the respondent, but in my case it really has broken down to a point where I really do not wish to speak to HR.

 

I have not approached the employer yet, as I really do not wish to share the responsibility of a joint bundle and wish to know my options before I really have to approach them.

 

thanks

 

THREAD MERGED AT THIS POINT

[MisTaken]

I just wanted to explain that I think there has been some confusion as to the employment of solicitors by me.....

 

PS - I just went back to your previous posts here about the CA. Your solicitor, even then, wasn't interested. So why are you still taking their advice - has it occurred to you that they were stringing you along?

 

I think there has been a bit of confusing re my solicitor, at no time has a solicitor 'walked away' from my case. Initially the solicitor was liasing with the employer in terms of a CA. The CA was suggested by my solicitor at the time. The employer ignored all of the case law and precedent cases my solicitor quoted. My solicitor tried to negotiate with them many times, with lots of letters and back forth, detailing the law (hence the huge solicitors bill). He even quoted to me that the employer has 'no idea of the law' but the employer continued to ignore his statements and refuse to budge from their initial offer, i.e. with no offer of negotiation. The employer thought (as they always have) that I will give in to their bullying. If I was wrong I would, but I do have a strong case, with evidence.

 

I, several times on the advice of the solicitor, in order to resolve and conclude my employment as quickly as possible lowered the figures I would deem acceptable as part of the terms of the CA - which were much lower than the ET is for. The employer refused. The solicitor at the time had more pressing cases on his books than to reiterate the same facts to the employer in each letter was a complete waste of his time and my money. He is actually a well regarded and well known solicitor. So to save me money (and of course to save his own time-which I fully understand, as trying to negotiate with my employer is impossible!) suggested I negotiate with the employer on the terms of the CA directly and when the terms were agreed then he would sort out the CA. The employer did not agree to any terms, and as such dismissed me, concluding my employment. Even then, they made even more mistakes in my dismissal, contributing to a higher claim at the ET.

 

When the employment was concluded I then took advice in regards to submitting an ET claim. I had the choice to pay by the hour, which would be expensive again due to the number of hours required, or to enter a no-win-no-fee agreement. As stated earlier, if I took the no-win-no-fee option and won the case I would need to pay the solicitor his cut immediately, and I have no doubt that even if I win the employer will appeal so as not to pay the money. This was a 2nd and different solicitor, who specialised in the area of employment law which is for the highest monetary value part of my ET claim. He has a high success rate and was confident to take the case on.

 

The only reasons I do not have a solicitor at the moment is that I am low in funds, and I thought that I would be able to represent myself. It is my choice that I am not currently legally represented.

[MisTaken]

Returning to my original post, can anyone advise me the difference between a 'vary' or a 'set aside', in the context of an order from the court which details that documents need to be listed to the respondent on xx date. I am unable to make xx date due to disability and need to request a postponement to this date.

 

The order states, ‘if the order was made in the absence of the parties either may apply to the Tribunal to vary or set aside the order, but must do so before the period for compliance with the order has expired.’

 

I am concerned as I only have a couple of days in which to apply for this and I am hoping that somebody has a skeleton document somewhere which may help me.

 

thanks

[elche]

Returning to my original post, can anyone advise me the difference between a 'vary' or a 'set aside', in the context of an order from the court which details that documents need to be listed to the respondent on xx date. I am unable to make xx date due to disability and need to request a postponement to this date.

 

Procedure was never my strong point, but I think, (and am happy to be corrected), that they mean the following -

 

You have received an order from a ET which is not the 'final judgment' in your case. For example it says, 'R to do X by DATE; C to do Y by DATE' etc

 

It is a timetable for how the ET would like the case to be run.

 

If you apply to 'vary' this order then you may for example say you can comply with the majority of the order but need to change one point e.g. date of C's witness statement sent to R

 

If you apply to 'set aside' this order then this order has no legal 'power' i.e. for example neither side should be punished for non-compliance with the order once it is set aside as it no longer has 'power'. This would be more appropriate where the entire nature of the order has changed e.g. when you appeal the final decision of an ET to the EAT.

 

Ultimately as it is a timetable (or appears to be), then whether it is varied or set aside I think will have little practical difference on how you need to bring your case - either way what is going to follow from the ET is either a 'new' varied order or an entirely new order.

 

I think you should be very careful not to get the ET's back up. I do not wish to seem harsh, but short of being physically incapable of communication, could you not have notified the ET / got a 3rd party to - of your change of address?

 

What is clear is that you need to write to the ET (before deadline on current order) and explain WHY you need to change the dates and LINK THIS TO the ET's overriding objective(s) as per reg 3 - see http://www.legislation.gov.uk/uksi/2004/1861/regulation/3/made

 

e.g. I am disabled. I have an illness caused X. This causes the following symptoms.......(explain why and how the symptoms make you unable to comply with original order)

 

Therefore, I anticipate being unable / am unable to comply with the ET order dated DATE.

 

I would therefore request that the following timetable be proposed:

 

List the timetable you want - make it realistic the interests of justice are not served by undue delay - thus make time requests in weeks not months unless you have a good reason to support the long delay.

I believe I would be substantially prejudiced if I were not able to do .............., and would respectfully request that the Tribunal accedes to my request. In view of the nature of my request, I do not consider that this would prejudice the Respondents.

I have today sent the same to the Respondents.

The Tribunal is politely reminded that the Claimant is unrepresented in this matter.

 

I apologize for the inability to comply with the original order, no disrespect to the Tribunal was intended.

 

Kind regards etc

 

CC Respondents

 

In reality they will send a copy to R and ask them if they object. If they do then the ET may order a CMD or PHR on what ever it is you requested.

 

Without knowing the precise nature of your illness in terms of symptons / progosis etc then it is hard for me to know what you exactly need to say.

 

Hope this is some help

 

Che

[elche]

Hi Mistaken,

 

I have merged your thread with a prior one. It should help you get more 'complete' advice

 

Che

[honeybee13]

Hello MisTaken. Have you rung the Tribunal office? I seem to recall from reading threads here that you have the option of doing that. Maybe they can explain the set aside / variation thing and give you some pointers?

 

My best, HB

[SarEl]

I think I am more confused with the extra information than I was before! Am I to understand that the ET has ordered that you prepare the joint bundle - because that would be highly irregular. The normal order is that you provide the respondant with the evidence which you wish to have included in the joint bundle by a certain date, and they prepare it.

[MisTaken]

hi SarEl,

 

I think I am more confused with the extra information than I was before! Am I to understand that the ET has ordered that you prepare the joint bundle - because that would be highly irregular. The normal order is that you provide the respondant with the evidence which you wish to have included in the joint bundle by a certain date, and they prepare it.

 

Thanks for your response, the order states 'the parties shall no later than ......prepare a joint bundle of documents'. My concerns are that to liaise with the employer will be extremely stressful, taking away precious time I need to prepare my witness statement etc. They are most uncooperative at all times which is why I asked my question to see if somebody could explain the 'normal procedure', if there is one.

 

Is the normal procedure that I send my docs to the respondent and they compile the bundle? If so, how can I be sure that all relevant documents are included? (I assume they are required to put all docs on the disclosure list into the bundle?

 

Also, in regards to the various copies of bundles, for the ET (4 copies) can these be highlighted etc or should they be plain copies of documents?

 

thansk

Mistaken

[honeybee13]

Hello again. As I said earlier, if the ET office has ordered this, why don't you talk to them? It seems they're usually pretty helpful and especially to self-representers. It's kind of hard for us to guess what's going on and if it were me, I'd want the information from the horse's mouth.

 

My best, HB

[MisTaken]

Hi HB,

 

Hello again. As I said earlier, if the ET office has ordered this, why don't you talk to them? It seems they're usually pretty helpful and especially to self-representers. It's kind of hard for us to guess what's going on and if it were me, I'd want the information from the horse's mouth.

 

My best, HB

 

Thanks for your advice, and I have called the ET office who have explained a letter will suffice to explain why I am unable to meet the deadline. This letter is almost finished, and I am about to send (after my partner has checked it thoroughly for the umpteenth time!).

 

I think I was reading too much into the formal procedures of 'vary' and 'set aside', I had started the letter, I just wondered if it needed to be formally headed etc.

 

In regards to the bundle, I created another thread which has been merged with this one. This is a separate question in regards to what is 'the norm' in regards to who is responsible for the joint bundle, in light that communication between I and the respondent has broken down beyond repair!

 

I know this isn't good in the ET's eyes, but I am unsure as what to do. I would prefer to prepare the bundle myself, to ensure it contains all that it should, however due to my illness it would be most beneficial if the employer were to prepare the bundle, and if they do, with having more time to review my evidence, more of a chance for settlement from them. (Have to think postively!! 8))

 

Thanks

Mistaken

[SarEl]

OK - this now makes more sense to me. The employer will prepare the bundle. You must provide them with all the documents that you want included, which must be plain, non-highlighted copies. You simply send these to the employer, with all the documents in date order and a front cover listing all the documents you want in the bundle. That is all you have to do. They will them compile and copy the whole bundle of evidence for both parties and supply this to the tribunal. But all your witness statements including your own have to be in there - it isn't an "either/or".

[MisTaken]

Thanks SarEl,

Just another quick question.....

 

But all your witness statements including your own have to be in there - it isn't an "either/or".

 

On the order it states 'joint bundle' to be prepared by xx/xx/xx, and further down the order, a separate paragraph for 'any person wishing to give evidence.....shall prepare a written statement....' and states these should be exchanged between the parties 2 weeks after the bundle preparation.

 

Is it possible the dates vary depending on the ET location?

 

oo sorry, and another one (ish).......

 

There is a witness employed by the respondent, who the respondent will not call, (no I haven't asked but will the respondent call a witness employed by them in my favour?).

I would like to gather some evidence and I am unsure of the best way to do this.

I have read (i know damn books and wanna be lawyers!) that I should request the tribunal call this witness, and then I would be able to ask questions at the hearing.

Is this the way to go, or could I request for copies of any notes/emails this person has made in regards to my telephone call with her? There must be notes as further action was taken by respondent after this telephone call with the 'witness'.

[MisTaken]

Elche,

 

Also thanks to you, I have taken your advice on board, and rewritten my letter.

All sent of to ET.

 

thanks

[SarEl]

Thanks SarEl,

Just another quick question.....

 

 

 

On the order it states 'joint bundle' to be prepared by xx/xx/xx, and further down the order, a separate paragraph for 'any person wishing to give evidence.....shall prepare a written statement....' and states these should be exchanged between the parties 2 weeks after the bundle preparation.

 

Is it possible the dates vary depending on the ET location?

 

oo sorry, and another one (ish).......

 

There is a witness employed by the respondent, who the respondent will not call, (no I haven't asked but will the respondent call a witness employed by them in my favour?).

I would like to gather some evidence and I am unsure of the best way to do this.

I have read (i know damn books and wanna be lawyers!) that I should request the tribunal call this witness, and then I would be able to ask questions at the hearing.

Is this the way to go, or could I request for copies of any notes/emails this person has made in regards to my telephone call with her? There must be notes as further action was taken by respondent after this telephone call with the 'witness'.

 

It can vary depending on the judge (rather than the location) or possibly on the case. In most cases I would prepare a bundle including witness statements, but providing you are sure about it saying these should be provided separately, then that's fine.

 

You certainly can ask a tribunal to make a witness order - but be cautious before doing it. Witnesses are supposed to tell the truth, but in my experience they don't always do so! If they deny something that you depend on, it can seriously harm your case. Again, you could ask for any notes etc - but how will you know they exist if they deny it? Consdier carefully whether this is crucial to your case, and then you will have to act accordingly. But do not assume that they will say what you expect.

[MisTaken]

Hi,

Thanks for all of the help, I took the advice on board and requested a postponement of (1) the orders (date for doc list/exchange of docs/witness statement) and (2) the hearing, formally by letter on 22nd February. Yesterday March 7th I received the response, no comment on the orders and a refusal to change the date/time of the hearing.

 

The respondent has requested a copy of all of my documents within the next few days (as per the order) and we are frantically trying to gather all of the evidence, list it and compile into a bundle to deliver to the respondent, who has offered to prepare the bundle. I have already missed the date of exchanging document lists.

 

I am rather confused about some of the requirements and wondered if anyone can help.

 

1. In regards to documents between my solicitor and I, when the compromise agreement was ongoing (it was not signed, and to save money I am now representing myself) I know that these are not required to be presented as evidence but I wondered if I am able to reference them in my witness statement and if so should they be included in to the bundle even though they are privileged?

 

2. In reference to the documents included into the bundle, the respondent has referenced an ET case in their ET3, but has not specified the 'proceedings transcript' to be included as evidence.

 

I thought that if I was to reference an ET case (and precedent EAT) cases in my witness statement then the 'proceedings transcripts' should be included in the evidence.

 

Please can somebody advise if I am getting this completely wrong.

 

Can or should I reference the other cases in my witness statements and should these cases be within the document bundle?

 

thanks

[MisTaken]

Anyone out there able to help with the above post?

[citizenB]

Hello mistaken, I will alert the site team to your query.

[honeybee13]

Hello there. I hope someone with the right knowledge comes along to help you soon. Have you asked the tribunal office for advice? I believe some of them are quite helpful.

 

My best, HB