Fairly urgent - tribunal advice needed

[lbruk]

Yup, that is naughty, I caught my employer out with that, twice, lol.

[kingofrod]

It's astonishing that people paid a hundred quid an hour can sometimes be so daft!

[lbruk]

Nothing surprises me with employers any more!

[CaptainMannering]

King, can I ask, the witness statements you've had from the resp?

 

Are the limited in details or have they gone into significant depths about events?

[kingofrod]

Hi K,

 

(Looked you up on Facebook, by the way (not like a stalker), so you might get a request to continue discussions!)

 

The witness statements are from two managers - the first is the one who interviewed and decided to sack me. The second is from the manager who performed my appeals hearing and, at the very start of the hearing said "I'd have sacked you right away, too". Nice one!

 

Both statements go into fairly deep detail. One of them is 18 pages long, the other 12 pages long. They are both, however, fairly repetitive. They go over the same points time and time again, which means I can rip them apart time and time again. It's silly. It's one of the reasons I appealed against the extension of the hearing - I knew they had little 'on me' and I didn't want to waste the time of the Tribunal.

 

Both of the statements are full of inaccuracies, untruths and bullsh*t! Including one part that refers to me as a woman. Nice.

Edited May 3, 2012 by kingofrod

[CaptainMannering]

Hi K,

 

(Looked you up on Facebook, by the way (not like a stalker), so you might get a request to continue discussions!)

 

The witness statements are from two managers - the first is the one who interviewed and decided to sack me. The second is from the manager who performed my appeals hearing and, at the very start of the hearing said "I'd have sacked you right away, too". Nice one!

 

Both statements go into fairly deep detail. One of them is 18 pages long, the other 12 pages long. They are both, however, fairly repetitive. They go over the same points time and time again, which means I can rip them apart time and time again. It's silly. It's one of the reasons I appealed against the extension of the hearing - I knew they had little 'on me' and I didn't want to waste the time of the Tribunal.

 

Both of the statements are full of inaccuracies, untruths and bullsh*t! Including one part that refers to me as a woman. Nice.

 

King

 

When you say the one who interviewed then decided to sack you, are you referring to the manager who conducted the disciplinary?

They have obviously not included the manager who conducted the investigations which led to the disciplinary hearing then? If they have and this is one of the two managers who conducted the disciplinary or appeal then this goes against the acas cop for disciplinaries.

If they haven't included any investigatory details whatsoever I fail to see how they can prove they have followed their own procedures. They also have to show an investigation took place and if it didn't they can't take you to a discipllinary hearing .

[kingofrod]

Hi K,

 

Well, no - the manager who conducted the initial investigation is nowhere to be seen. Which is actually causing me problems, to an extent.

 

The first manager being called as a witness, the one who conducted the official disciplinary hearing and who took the decision to dismiss, refers to the findings of the preliminary investigation repeatedly and it's quite difficult to ask someone what they think someone else thought, or why they think someone else decided what they did. So as I said, it's proving a bit problematic.

 

The next manager being called is the one who conducted the appeal and who told me at the very beginning of the hearing that "[she's] have sacked me for the first allegation alone".

[CaptainMannering]

I would say this is great news personally as they can't prove they have followed their set procedures or that as per the acas cop a fair and thorough investigation took place.

[kingofrod]

For real? I did think it was odd that I wouldn't be allowed to question the person who did the investigation, only those who acted on the information they were passed by that person.

 

Like I said, a question like "do you think XXXXXX may have thought that....." is just completely pointless. I doubt it would be allowed.

 

How do you suggest I point out to the Tribunal that this is the case, K?

[kingofrod]

I've had enough of their bullsh*t now!! LOL!

 

They've tried to make what I consider to be some fairly significant additions to the witness statement of the first manager. Some of the changes I'd be happy to accept as they are informational only, but some of the other changes are actually him expressing an opinion, which is something I feel should have been included in the original statement and not added now. He has also said that he is "taking advice" on my recent submissions to the bundle - these submissions show that it was impossible for me to have conducted the sales visit they claim I did, but that I know I was on annual leave for.

 

Just sent the following email to the respondent's solicitor. Does it look OK?

 

 

Dear XXXX,

Good morning.

Many thanks for spotting my typing error – yes, I do refer topages 57A-P, so to add those documents to 57Q, R would be most appropriate, Ifeel.

I feel that it is inappropriate for you to add amendments to XXXX’s witness statement at this late stage, considering the fact that wehad an agreement in place concerning the nature of any allowable amendmentsfollowing the disclosure of information by XXXX.

I feel that the nature of the dependancy support team’s role has been made clear inother areas of the statements and the bundle and do not accept that theseamendments are necessary. Further, only yesterday you told me that “at thislate stage in the proceedings and owing to the bank holiday weekend“ itwould be difficult for you to consider my recent submission to thebundle. I cannot understand why you feel it’s appropriate for you to makesuch significant changes at this late stage but feel it is not appropriate forme to do the same. I, too, have to consider the bank holiday weekend, asit is a particularly busy time for me and my ability to focus on theseamendments will be limited.

I would like to make amendments to my own statement relating tothe two pages I submitted yesterday, but in line with our agreement, I haverefrained from doing so.

I therefore request that these amendments be removed.

I am certain, XXXX, that you are well aware of my right tosubmit additional documentation to the bundle at any time but am prepared, atthis stage, to confirm that I shall make no further submissions. I would,however, request that the two pages I forwarded to you yesterday be added priorto the bundle being scanned to me later today (I best make some room in mymailbox – argh).

Mindful of the time constraints in place, I am happy to printthe updated bundle myself and safe you the trouble of producing and sendingthis to me.

[CaptainMannering]

For real? I did think it was odd that I wouldn't be allowed to question the person who did the investigation, only those who acted on the information they were passed by that person.

 

Like I said, a question like "do you think XXXXXX may have thought that....." is just completely pointless. I doubt it would be allowed.

 

How do you suggest I point out to the Tribunal that this is the case, K?

 

Yeah for real. When I initially took legal advise she advised if they were advising a company they would tell them to take the investigating manager, disp manager and appeal manager to the hearing. How can the disp manager make reference to documents which led to your dismissal which aren't part of the bundle?

 

Try not to get too frustrated this is what solicitors do, they are obviously trying and succeeding to make things difficult for you. if it does get to hearing assuming there's no settlement then point out the above in relation to witness statement amendment and including further documents. If you've got the documents in relation to proving you were on leave/ couldn't have visited that client then take th to the hearing to show the panel what the resp wouldn't allow you to submit in the bundle. It will be them that has to answer to the tribunal and them that has to answer to your submission etc.

[kingofrod]

Cheers, K. Just as I got the notification of your reply, I got a reply from the respondent.

 

They will be adding my new documentation to the bundle, so that's fine. But they've ignored my rejection of the changes to the witness statement and said they'd be submitting the statement in its revised form. They said I can talk to the hearing panel on the day if I have a problem with that.

 

Could I bring with me, do you think, copies of the emails between us relating to the specific disclosure request and the arrangement put in place to ONLY make amendments relating to the documents we got from that request? Then I could show the Tribunal that they've breached the CMOs by submitting their statement late?

 

I guess I just don't understand at what point it's appropriate to complain about the conduct in which they've handled the case, or when I can submit documents like that.

 

Where's Becky?!?!?! LOL!

[kingofrod]

Just got the below email from the respondent together with a summary of their costs, which runs into about £14,000.00.

 

Any thoughts? Anything to worry about? Any advice?

 

 

 

 

As you areaware, our instructions are to make an application for costs against you,following the conclusion of the Hearing. A costs hearing will, therefore,follow. Please find enclosed a bundle of documents relevant to that costshearing.

 

Irespectfully remind you that I have, on numerous occasions:

 

• Set out the weaknesses in your claim; and
  
• Suggested you obtain legal advice about your claim and signposted you to where you may obtain legal advice free of charge.
  

You have failed to engage in such correspondence, which we submit amounts to unreasonable conduct.

 

I respectfully refer your attention to (and suggest you obtain legal advice aboutthe implications of) the recent Employment Appeal Tribunal decision of Peat& Ors v Birmingham City Council (UKEAT/0503/11/CEA). This decision isauthority for the proposition that a failure on the part of a party to engagewith the terms of a costs warning letter can amount to unreasonable conduct,such as to justify a costs order. We will be making representations regardingthis case during that costs hearing.

 

Please notethat this e-mail is headed "without prejudice save as tocosts". This means that you must not refer to it in correspondenceto the Tribunal or in any statements or submissions until after the Tribunalhas reached a decision regarding your claim and the issue of costs is beingaddressed.

[honeybee13]

Hello there.

 

We often see the other side threatening this sort of thing leading up to a tribunal. If this is a first stage tribunal and not an EAT, I believe it is rare for costs to be awarded unless the claim is vexatious. The other side's lawyers more often than not seem to go for vexatious in order to frighten people.

 

Hopefully, people in the know will be along later with advice for you.

 

My best, HB

[CaptainMannering]

King

 

I wouldn't worry it's a scare tactic. When all said and done if they feel your claim is 'weak' then they can write to the ET to have it struck out, or to submit a costs order. Ask yourself why they haven't done that and they have wrote a threatening letter to YOU, unrepresented you, it's so you look at a potential bill of £14.000 and worry then withdraw your claim.

They also have to hide behind the without prejudice SATC headings which they chose to write on the mail. If they believed they had a genuine chance of getting costs then they would submit this request in open correspondence.

 

Way I see it it's their 'last chance' to ET you to withdraw your claim.

[kingofrod]

That's a good way of looking at it, K. I always thought that they would have had to do a Pre Hearing Review if they wanted to go for costs, and that I'd have to put up a deposit in order to continue.

 

It does seem as though they are just trying to scare me, as none of this has been made available to the Tribunal yet.

 

It's a struggle not to worry a little, seeing those figures on a piece of paper saying that they're going to try and claim it back from me, but I know costs awards are rare.

 

I hope Becky, Ibruk or Marie pop past later to give their views on the above (specifically, the addition of stuff to their statement that does not relate at all to the information I'd requested from them). I REALLY didn't think that this would be allowed....

[lbruk]

i would look up some case law that supports your case and send it back to them, tell them about the weakness of their defense and that you will as well as requesting compensation, that you will be adding costs now as well and thank them for reminding you. All without prejudice of course

[CaptainMannering]

i would look up some case law that supports your case and send it back to them, tell them about the weakness of their defense and that you will as well as requesting compensation, that you will be adding costs now as well and thank them for reminding you. All without prejudice of course

 

Ibruck

 

I have heard this before and I think if you've got a reasonable case an their defence is poor then id be inclined to agree and write a without prejudice letter implying you'll be going for costs.

 

 

Question is how do you calculate your own costs. A sol will do £150 per hour x 100 hours = £15,000. how would you personally calculate this?

[CaptainMannering]

That's a good way of looking at it, K. I always thought that they would have had to do a Pre Hearing Review if they wanted to go for costs, and that I'd have to put up a deposit in order to continue.

 

It does seem as though they are just trying to scare me, as none of this has been made available to the Tribunal yet.

 

It's a struggle not to worry a little, seeing those figures on a piece of paper saying that they're going to try and claim it back from me, but I know costs awards are rare.

 

I hope Becky, Ibruk or Marie pop past later to give their views on the above (specifically, the addition of stuff to their statement that does not relate at all to the information I'd requested from them). I REALLY didn't think that this would be allowed....

 

I understand you worry. But this isn't what the ET is all about. As you say people with a weak case at PHR will be asked to deposit. People wouldn't go through the ET if at the 11th hour they were landed without warning with a sol bill. I'm sure the ET has to make you aware at some point that there is a possibility that costs will be awarded as well

[lbruk]

Ibruck

 

I have heard this before and I think if you've got a reasonable case an their defence is poor then id be inclined to agree and write a without prejudice letter implying you'll be going for costs.

 

 

Question is how do you calculate your own costs. A sol will do £150 per hour x 100 hours = £15,000. how would you personally calculate this?

 

well, you don't have to calculate them, its without prejudice, so its just a threat of increasing the amount you are claiming, whether you do it or not is irrelevant.

[kingofrod]

Was going to ask the same, K. Additionally, I've tried searching for similar cases and have struggled to find anything. I'll keep looking.

 

Thankfully, I believe all the information exchanges between myself and the respondent have finished so it's now just down to preparing myself for the actual defense on the day(s).

 

I know there have been lots of posts over the past few days - my apologies for that - because of the flood of information coming through from the respondent, so if I may, here's a list of (what I hope to be) final questions. If anyone can help with them, I'd be eternally grateful.

 

a) Can the respondent add to their witness statements at the last minute (c. one week before hearing) in spite of my opposition to this happening?

b) Can I refer to newly added documents to the bundle, despite them not being mentioned in my witness statement as they were added after the statements were finalised?

c) Can I refer to emails between the respondent and myself, relating to my request for documentation and to our agreement that our statements would ONLY be updated to allow for addition of information directly related to these submissions and can I, as a result, oppose the use of the new statements?

d) When and how do I do this?

e) Do I need an opening and closing statement prepared in advance, or should atleast the closing statement only be prepared once I've heard the respondent's representations?

 

I think that's it for now, guys. Thanks a million again. It's almost over, so it'll be less questions and more answers by the end of next week

[CaptainMannering]

well, you don't have to calculate them, its without prejudice, so its just a threat of increasing the amount you are claiming, whether you do it or not is irrelevant.

 

Thanks ibruk. But what is a realistic figure to claim for? I'd argue if they are claiming £14.000 then king should be able to dp same. You can argue they are legal professionals and that's why costs are high but they too don't have to have legal representation that's their choice!! I dare say it takes claimants as much/ more time to prepare for the hearing?

[lbruk]

King

 

A) no

B)yes your bundle should support your statement

C)if they are in the bundle yes

D)cross examination?

E)it's good to be prepared for both, a good outline for your closing statement then fill in the details as you go

 

Kgray, no you can't claim your own fees, but that's not to say that you can't say that you have used solicitors and advisors up to now blah blah blah, it's about upsetting teas much as they try to upset you.

[CaptainMannering]

King

 

A) no

B)yes your bundle should support your statement

C)if they are in the bundle yes

D)cross examination?

E)it's good to be prepared for both, a good outline for your closing statement then fill in the details as you go

 

Kgray, no you can't claim your own fees, but that's not to say that you can't say that you have used solicitors and advisors up to now blah blah blah, it's about upsetting teas much as they try to upset you.

 

Thanks mate great advise. I have a separate thread if you can advise on my specific issues I'd appreciate it.

 

King I echo the advise given I would have agreed with all said. You have a fantastic opportunity to destroy their credibility!!!!

[lbruk]

King I don't understand why they would introduce new documents now, that were not referred to in their statement.

 

It might be worth reading their statements carefully to see if they have deliberately tried to hold these documents back to stop you from seeing them before now. I don't see the point of introducing documents that are not referred too.