Developments the day before an ET!!!!! *************Won********* ******

[RachelMD]

Have you got an original thread, HH? I can't remember the specifics of your dismissal.

 

Not sure I'd rely too heavily on an MP's assertion of right or wrong.

 

[hhh_88873]

Automatically unfair dismissal?

 

Automatically unfair dismissal?

 

I work in security in Manchester and was recently confronted with a group of approximately a dozen 15-18 year old youths throwing stones across a public area populated with small children, families etc. I walked the youths off the site and was forced to physically remove one youth by placing one hand on his chest and one on his shoulder and walking him off site. Not pushing him or using any other level of force I hasten toadd, literally just placing my hand on his chest and walking forward, thus taking him with me. As soon as he was off the private property he was released.

 

The youth and his cretinous accomplices then began hurling stones at myself and a colleague, striking us several times whilst making all manner of threats of violence, killing etc.

 

Subsequently the group then wandered off and smashed up a local shop and stole a quanitity of alcohol from there but that is not relevant to my case.

 

I was then arrested the following week for affray, believe it or not.

I was promptly suspended from work and dismissed for gross misconduct 3 weeks BEFORE I was due to return to find if I was to be charged or not. My appeal failed despite the intervention of my MP on the grounds that the company did not feel it had to answer to the CPS while making their decision.

 

The Police (or at least the duty inspector) apologised for my arrest, agreeing that the officer had not needed to arrest me, inviting me to the police station to speak to me under caution would have sufficed. My MP has clearly given his support in this matter as he feels it was deeply ubfait to dismiss me before a decision to charge or not had been reached, especially since I was subsequently cleared.

 

My question is this. In the response to tribunal proceedings the company states that its standing with the client and the community was such that it did need to await a decision from the police to charge before taking internal action.

 

However, one of my two colleagues that witnessed the event was interviewed internally and said (in writing) that I had not used excessive force, and my other colleague was not even questioned about it despite my pointing that out in my appeal.

 

Does anyone have any pointers on this?

 

Thanks,

[hhh_88873]

Thats the original post. Since then Ive had been offered employment by another firm, then had it withdrawn as thew new firm admitted the manager who suspended me originally had contacted them and stitched me up. They only wgreed to furnish me with that info when I agreed not to pursue them if they told me what had gone on.

[hhh_88873]

Rule 9 - Taking no further part in the proceedings

53. Under this Rule, a respondent who has not responded, or whose response has

been rejected, will not be allowed to take any part in the case. The only exceptions to

this will be where he or she is seeking to have a judgment reviewed under Rule 33 or

Rule 34(3)(a) and (b); where he or she is called as a witness by somebody else; or

where the tribunal is sending the respondent a copy of a decision or judgment, or

corrected entry.

 

Anyone think I can file for a default judgement under this section on the basis that my former employer has failed to respond at all to the deadline set by the tribunal office?

[Par King]

The extension you got from your employer, was this in writing? Did you tell the tribunal that you had an extension of time from the Respondents (employer) and ask the ET for an extension too?

 

It is not clear what exactly both parties were asked to disclose and if the documents you were asked to disclose are crucial to the claim

 

Resend your letter and send it by recorded delivery stating that the Respondents have failed to comply with the directions in the CMD, and that they have acted unreasonably. Include your evidence of contacting the Respondent and the Tribunal. Also say that their unreasonable actions means that you cannot have a fair trial under Article 6 of the ECHR, which is part of the Human Rights Act. You have not been able to inspect the documents to which the Respondents rely and therefore prepare yourself in terms of how you can answer back and put forward your claim. The Respondent's deliberate failure to comply with the rules/orders means that potentially the case has necessarily reached the point of no return. 9 i say this not knowing what documents were mean to be disclosed and not knowing if they are in fact crucial to the case)

 

In terms of striking out the response, you want the tribunal not to allow the Respondents disclosed docs as part of the trial bundle ( if they do produce anything) so the Respondent would not be able to rely on them as part of their case. There are sanctions in place where a party has no complied with the directions set at CMD, you may want to ask the Tribunal to consider enforcing the sanctions in light of the unreasonable behaviour of the Respondent and the delay it has on the proceedings and to the fairness of the trial. ( again dependent on what the documents are and how important they are to the case)

[hhh_88873]

I have the email where the employer agreed to the extension, and I have the email I sent them containing some of the documents they asked for, there are several documents like their own policies and procedures that they havent followed that they wanted me to highlight exactly what bits Im using which Ive refused to do on the grounds that being their own poloicies, they should already know them. I also have a jobcentre advert advertising my job which was posted the exact same day I was suspended which they wanted to see. Ive refused again as since they were the ones that posted it, they should already know.

 

Ive submitted a request to have any response they bring on the day refused under Rule 9 sect 53 of the Employment Tribunals (Constitution and rules of procedure) Regulations 2004,and filed for a default judgement under section 7 of the employments act 2002. Just have to wait and see if I get any response at all now.

[hhh_88873]

Ok sorting out all evidence and paperwork for thursday and Ive come across a tricky one. I made a SAR request to gain confirmation that my former employer had knobbled a job offer, and the HR guy I soke to said hed send me confirmation that a phone call had taken place. I have evidence of the phone call they made to me saying this.

 

The company that withdrew the offer then gave 3 entirely different reasons as to why the offer was withdrawn and when I questioned them about it and told them that their HR had already admitted that they had had a phone call from my previous employer they clammed up and have now completely ignored my SAR request. What do I do about bringing this to the atention of the tribunal?

[RachelMD]

Well, you'll just have to explain to the ET that you submitted a SAR but the company has failed to respond. Hope thy believe what you have to say.

Maybe get on to the company ASAP and threaten to report them unless they cough up by the end of tomorrow.

[hhh_88873]

Already done that and Im still being stonewalled. At least Ive got the phone records of them calling me and the emails theyve sent where they cant decide what the offer was withdrawn for. And the final one where they say they dont understand what it is I want, and I replied making it V clear what I was asking and they just ignored me since.

[hhh_88873]

Ok, Im sure a few of you ahve read my ongoing case and have a fair idea whats gone on.

 

Todays developments are as follows.

 

There has been a postponement granted without my knowledge in this case.

The employer has to wait for the dismissing officer to return from her job an a cruise liner and still hasnt returned.

The notice was sent to the wrong address hence me not getting it, the ET have apologised for that so fair enough.

 

I have written in a strong objection to the postponment on the grounds that they are way bigger than me, they should have their house in order and be ready to go like they said they would at the CMD.

 

They STILL havent disclosed any evidence or documents, and have been issued with a strike out warning. I have renewed my request to have their whole defense thrown out, as I know for a fact if this person DOES eventually show up, they will only have her, and maybe one other as two of the four have refused to give evidence for them.

 

Thats where I am now.

Anyone think theres anything else I can do??

 

Ta.

[RachelMD]

Just use the time to go over your case, pursue the SAR we were talking about.

Maybe take time to visit the ET a few times?

 

Can I suggest a merge of threads?

[rebel11]

Thread merged.

[citizenB]

Thread merged.

 

 

Aha.. wondered why I was struggling

[hhh_88873]

Thanks

[hhh_88873]

Ok so following me chasing up the SAR, they have finally responded with an HR official asking me to send him the original request that I sent back on the 28th April.

 

I have sent him a copy, reminded him that I have told the ET service that they hadnt responded in due time, and I have recorded a phone call another HR official where the phone conversation I wanted confirmation of had indeed taken place.

 

No response yet.

[Marieleeza]

Ok so following me chasing up the SAR, they have finally responded with an HR official asking me to send him the original request that I sent back on the 28th April.

 

I have sent him a copy, reminded him that I have told the ET service that they hadnt responded in due time, and I have recorded a phone call another HR official where the phone conversation I wanted confirmation of had indeed taken place.

 

No response yet.

You seem to be getting on top of them. I hope they get scared and cough up the cash. Best of luck!

[hhh_88873]

Ok, I have today received more paperwork from the ET office. They have given my ex employer a double b ollocking. They have stated it is not necessary for me to outline precise passages in the documents I intend to use for my defense, nor should my employer have asked me to do it, to do so showed them attempting to 'unfairly weaken the claimants case' and they have been issued with another order to disclose documents since they havent done so.

 

However, due to a mistake in the ET office I didnt have this letter sent to the right address, they have admitted the balls up and apologised.

However, they have granted a continuance until late in august.

 

I have the right to appeal to revoke the order using rule 11, which I did, but I didnt state that it was under rule 11, just that it wasnt right for a company to be granted an extension when me as a lone person fighting the case was ready to proceed.

 

The warning they had was issued on the 11th may, and they STILL havent disclosed documents to me.

Anyone think they are an an ever steepening slope to defeat here?

[Marieleeza]

It seems that, as other CAGGERS say, the ET is overly accommodating to the tardiness of the employer. However, it does appear that your ex-bosses are losing the plot.

 

 

I really admire the way you have kept after them. May the Force be with you.

[hhh_88873]

Well Ive reapplied for the closure of their defense, with the words 'strongly object'this time, I wonder if theyll get the hint. Im starting to wonder if they may be thinking maybe going down the path of discussing a settlement may be a smart move.

 

I need to check something tho, I think that under section 7 and rule 34, if the tribunal strikes out their defence, it means they cant use anything in their defence, effectively meaning they have to sit there and take whatever I chuck at them, and cant defend themselves. Doesnt that mean that effectively even the slightest suspicion of them pulling a fast one can be taken as gospel as they cannot disprove it?

Edited July 8, 2011 by hhh_88873
wrong passage

[Marieleeza]

Well Ive reapplied for the closure of their defense, with the words 'strongly object'this time, I wonder if theyll get the hint. Im starting to wonder if they may be thinking maybe going down the path of discussing a settlement may be a smart move.

 

I need to check something tho, I think that under section 7 and rule 34, if the tribunal strikes out their defence, it means they cant use anything in their defence, effectively meaning they have to sit there and take whatever I chuck at them, and cant defend themselves. Doesnt that mean that effectively even the slightest suspicion of them pulling a fast one can be taken as gospel as they cannot disprove it?

 

I cannot say about the strike out of the defence as I have no experience. Papasmurf or Sidewinder might be able to help you with that.

 

Have you got a schedule of loss including aggravated damages? I saw a case recently where 2 guys got 5 -7.5K for the rotten way they were sacked, this was just the injury to feelings component.

[RachelMD]

Well Ive reapplied for the closure of their defense, with the words 'strongly object'this time, I wonder if theyll get the hint. Im starting to wonder if they may be thinking maybe going down the path of discussing a settlement may be a smart move.

 

I need to check something tho, I think that under section 7 and rule 34, if the tribunal strikes out their defence, it means they cant use anything in their defence, effectively meaning they have to sit there and take whatever I chuck at them, and cant defend themselves. Doesnt that mean that effectively even the slightest suspicion of them pulling a fast one can be taken as gospel as they cannot disprove it?

 

If it was struck out it would mean that you'd be awarded summary judgement, there'd be no hearing.

 

Don't get excited too easily by procedural shenanigans in the lead up to an ET hearing.

The respondant has to really, really (really) f*ck the ET around to be struck out.

Make sure you don't get too pushy with the EJ in requesting they sanction the respondant. Suggest it, sure. Communicate what's happening, and why their actions (or lack of) are unreasonable.

But keep focused on the likelyhood that this will end up as a full ET hearing, with the respondant having full representation by a solicitor or even a barrister.

[hhh_88873]

My schedule of loss about 2 and a half months ago was 10k in lost wages, its increased at 500 a fortnight since. Theres also the question of interest, costs and future earnings, but to be brutally honest, Id take the lost earnings and walk away happy right now.

[hhh_88873]

Well theyve been issued an official warning, been bollocked for trying to pull a fast one and have still not replied, so surely that would qualify as contempt of the tribunal?

[Marieleeza]

My schedule of loss about 2 and a half months ago was 10k in lost wages, its increased at 500 a fortnight since. Theres also the question of interest, costs and future earnings, but to be brutally honest, Id take the lost earnings and walk away happy right now.

Oops! I just noticed this on Emplaw.

 

 

"In unfair dismissal cases, an employment tribunal has no power to award either aggravated or exemplary damages"

 

Sorry to get you hopes up! Those 2 guys were claiming religious discrimination which is why they got the dosh.

Edited July 8, 2011 by Marieleeza

[RachelMD]

Well theyve been issued an official warning, been bollocked for trying to pull a fast one and have still not replied, so surely that would qualify as contempt of the tribunal?

Heading that way perhaps. Don't get your hopes up is what I'm trying to say.

Concentrate on having to go to ET and argue this.

 

BTW, H. Are you keeping full records of all steps you're taking to mitigate your circumstance by finding alternative employment?

 

VERY important, and often overlooked. You can win in full at ET, only for the respondant to use the fact that you seemingly haven't made any effort to find another job after you were sacked to have the ET greatly reduce any award you might have received.