Unfair, Wrongful or Constructive dismissal?

[lindyhop]

Sorry

 

i should have added that the judge at the CMD has advised that my request to amend my ET1 to include DDA will be resolved at that the CMD.

 

i take it that my employers can reasonably request a PHR for the DDA as this has not been requested previously?

 

the court has allocated 1 hour for the CMD, will the PHR if granted for either of my discrimination claims be held within the hour or will another date set for the PHR if my employer win their argument?

 

Help!

 

Regards

[lbruk]

The judge will make his own mind up - depending on what you say and what your employer says.

[lindyhop]

Hi Ibruk

 

i am astonished! is it possible that the judge will reconsider his original decison on my ET1, or do you mean that he will consider the PHR request, on my request for the amendment to include the DDA.

 

it seems so unfair that at the CMD he could reverse his original decision. i can understand it if its on my amendment request because he hasnt made a decision on that yet.

 

sorry if im being a bit fuzzy.

Regards

[lbruk]

He'll consider the PHR, and your request. Their solicitor will get a chance to re-request the PHR, whether the judge will listen or bnot is another thing!

[lindyhop]

Thanks Ibruk,

 

i guess i will just have to go with it.

 

the latest thing is that now my employers have asked for an adjournment of the CMD because the HR manager will be on leave and cant attend! the solicitor is also stating that they will be on holiday as well, and want a postponement of about 6 weeks.

 

i would rather have the fret of this hearing and outcome of the re request for PHR out of the way, and sent a holding letter to the courts stating my full objection will follow shortly.

 

i will be quoting medical and the fact that there are other managers well versed in the history of my case able to attend instead and that my employers solciitors is a large firm and have enough time for a replacement to familiarise themselves with the case it being the CMD only and not a full hearing.

 

Question

is there anything else that might be relevant that i could include to help the judge see things from my point of view? i need to give a full response by Monday.

 

Regards

 

PS if you think my objection is ill advised please state this as well

[papasmurf1cx]

Not ill advised at all. You have pin pointed exactly the areas where their position is weakest ie lots of managers and big solicitor firm. Point out also that you are litigant in person, the fact that delay is prejudicial to your health and they are using delaying tactic to wear you down. Point out if they have done this before.

[lbruk]

They have a right to ask - you have a right to object

[lindyhop]

Thanks for the reassurance Guys

 

i am trying not to be unreasonable in all of this, but my employers and their solicitors are playing by a different set of rules - i dont know their rules and so have to go on gut feelings of what feels right or wrong.

 

i will include the issue of delaying tactics in attempt to wear me down and that they have done this before.

 

Thanks again

[lbruk]

Unfortunately the solicitor will use all the means at their disposal and will try to outwit you by their knowledge of the law and what they can do without breaking it. If they say something to you, just say you'll take it under advisement and look it up or come here to ask, I'm pretty up to date with the tricks of the trade!

[lindyhop]

Thanks Ibruk, i will make sure i take your advice and not commit to anything my employers and their solicitors want, just because they say so. i will be double checking everything here first. Thank God for this site and the patience and support you caggers provide.

 

Regards

[lindyhop]

well to my surprise i have just recieved the DD questionnaire, it wasnt due for another month! basically what my employers are saying is that, it must have been known by my work colleagues that my time off was not physical becasue before i went on sick i was tearful and upset, quiet and unhappy (they acknowledge that something was very wrong then) at one point in the document they describe me as having tearful outbursts (i dont deny it, i could no longer cope with what was going on and had to be signed off sick)

 

they are using these excuses to justify why it was that my managers openly and without clearing it with me first discussed my medical condition. however they have been economical with the truth on the form and failed to include that part of my time off and noted on my sick notes when i returned to work was the fact that i had suffered a prolapsed disc. so on my return to work i DID have a physical problem with mobility as well.

 

my employers are also saying that as i had made my original grievance complaint about certain members of the team and their treatment of me, that they felt the team needed to be updated on the outcome of my original grievance hearing, hence they held the meeting and discussed medical facts because members of the team had raised it first!

 

again my employer have been economical. at the close of my original grievance hearing i was told that the outcome would be discussed with the team in the new year. in fact they held the meeting without me on the day after the hearing so eager were they to tell the team not to worry about my complaints.

 

my point is, i never discussed with any member of the team ANY detail about my medical condition physical or my depression - (although i couldnt hide the mobility problem when i returned to work, i refused to discuss the cause of my mobility issues with members of the team, and under no circumstance would i have raised with them my depressive state). on my return to work, my meds kept me functioning to a degree, and i could manage my distress a little better and away from the team members. Therefore no matter what the team thought they knew, they were guessing.

 

i still do not believe my managers should have broken the confidentiality and disclosed what they knew or thought they knew. i thought HR had a duty to keep sensitive information confidential. why is it right that just because team members raised their suspicions about my condition that HR should confirm it?

 

also in their statement they state that prior to the meeting which was held and my condition formally disclosed that my condition may have been referred to earlier by them whilst they were carrying out their investigation of my original grievance! this is incredible! them stating 'detriment to my health' is very different in my book to them stating my 'mental illness', they go on to state it was done to communicate the severity of my grievance. all BS. they know that on questioning at the hearing, team members would let this slip and this would all come out and are now trying to cover themselves. at the point of their investigation they did not approach me and check if it was OK for them to disclose details about my medical condition.

 

my employers are saying that because they have now apologised which is what i asked for that the matter is fully resolved!, the truth is it is only partially resolved - but how does all this leave my position for my CMD, and my request to amend my original ET1 to include the DD?

 

this is so wrong - my employers have been discussing my 'mental' state with work colleagues all along. This helps explain so much that happened on my return to work. i cant believe it.

 

can i still fight this?

 

Regards

[papasmurf1cx]

Partially resolved = partially admitted. This does not absolve their actions. keep pressing on, they will offer to settle in due course, do not give up. Nothing has changed legally, they have to LEGALLY resolve the case and the allegations against them, and the only way to do that is to compensate you for the injuries, injuries to feelings and the losses you have suffered.

[billybobyeeharrboy]

Hi Lindy,

 

This is so similar to my case, except in my situation my line manager was harrassing me and giving me a hard time, all throughout my lowest point in my life. A report drawn up by my GP containing details of family trauma and my mental state was openly passed around the company without my consent.

 

There are many wicked people around in companies and they seem to get away with it. When the breach of confidentiality was brought up in the tribunal the judge simply said that it was outside the jurisdiction of the tribunal. I am woRried that this could happen in your case at the hearing also as I can see many similarities between my case and yours. Correct me if I am wrong but you have to prove the discrimination took place and the breach will not be something the tribunal will even consider.

 

Sorry if this is not helpful but I have been through it all and speaking from experience. I am still fighting my corner months after the tribunal hearing all the way to appeal. So keep soldiering through!

 

All the best

 

Billy

[lindyhop]

Hi Billy

 

as far as i am concerned the discrimination is in the form of unfair treatment and victimisation. in that i was treated differently due to my condition. if i had HIV or cancer, the managers would not have disclosed my medical condition. my manager even recorded some of the derog. comments he made during the meeting which was further detriment and which contributed to seriously compromising my credibility within the team, and lead to further acts of discrimination. they are aware they were well out of order which is why they have provided the apology, but not provided anything else.

 

it is my intention to fight this. i am aware that the disclosure is out of the ET juris, and have no intention of fighting this battle there. i have informed my employers that i will be reporting them to the ICO and will persue civil action seperate to the ET.

 

Regards

 

 

 

thanks though

[billybobyeeharrboy]

Go Lindy!

 

sorry, I have only just seen this post, go for it and I will be right there behind you, following suit with my employers.

 

You have my full support, should you so need. All the best

 

Billy

[lindyhop]

Hi

 

quick question. when is it that the ET judge looks at the questionnaire responses? at CMD stage or afterwards? i just wondering if the judge gets to look at some of the b.s that my employers have written on their questionnaire responses at CMD stage which might adversely influence his decision as to whether or not to apply his discretion in allowing my ET1 amendment to include DDA. (bearing in mind my employers are insisting (on the questionnaire response) that they have already met my demands to resolve the situation - which is a lie)

 

cant find anything that covers this bit on the site.

 

Thanks and Regards

[lindyhop]

Hi all

 

would it be possible for Ibruk, Becky or Mariefab (or actually anyone else that has gone through or has experience of this) to have a look at my CMD proposed agenda and request to a 'amend' for comment please and highlight any pitfalls, errors or omitted items. i also have some questions at the end of my draft that i am still not clear about.

 

my request to amend is particularly important and vital to my case.

 

thanks for your help

 

IN THE EMPLOYMENT TRIBUNAL Case No

　

　

BETWEEN

　

Claimant

and

　

Respondent

___________________________

 

PROPOSED LIST OF ISSUES

____________________________

Complaints

2.1 (a) Do I just repeat here as outlined on my original ET1, then go onto the following?

 

2.2 Application to amend the claim

The new claim relates to the complainant’s late discovery that on the …………2011 an act of disability discrimination occurred against her. The complainant believes that the act of disability discrimination is directly linked to her pending ……… claim, and therefore that the act of open discussion and disclosure with her work peers of the complainants sensitive medical condition was an act of discrimination by way of victimisation, and also unfair.

 

There are substantial factual issues in common between the two claims. Both are

predominantly concerned with the conduct towards the complainant of the some of the same individuals and the same witnesses are likely to be required for both. In the circumstances the complainant suggests that it will be more economical for the tribunal and for the parties if the new claim is heard together with the existing claim.

 

I would draw the courts attention to (case law……) can someone help with an example please, or link where I can find one.

 

Amendment Request Details of claim

Do I include here my request for Amendment to include DDA and outline as I would have done on an ET1?

 

a. On the……. Meeting held whereby the complainants employers openly discussed sensitive medical information causing severe detriment to the complainant including seriously compromising the complainants credibility amongst her work peers which as a consequence lead to further acts of victimisation and harassment from her work peers and managers.

 

b. During this meeting …………… referred to the complainant having ‘mental illness’ and described to the complainants works colleagues as ‘fact’ that the complainants behaviour as being due to her ‘mental illness‘.

 

c. The complainant did not raise her complaints at the time, not having been made aware that the meeting was taking place, or invited to attend the meeting.

 

d. The complainant had not been approached by her employers prior to the meeting to forewarn or obtain permission for her sensitive medical information to be openly discussed with her work peers.

 

e. The complainant’s employers had not allowed or given the opportunity to the complainant to redress the balance or challenge the comments that were made about one of her medical conditions during this meeting with her work peers.

 

f. The other managers present (including …………) failed to intervene, halt or deter the discussion about this particular aspect of the complainants medical condition, there being more than more medical condition affecting the complainant at the time.

 

g. ……………….. and the other managers present breached the complainants employers documented Dignity at work policy.

 

h. ……………… and the other managers present at this meeting breached the employers documented confidentiality policy (read the confidentiality policy again)

i. the disclosure of the complainant’s sensitive medical information to the complainants work peers, and the negative attitude of her managers about this particular aspect of the complainants condition lead to a further deterioration of the relationship between the complainant and her work peers which lead to further acts of victimisation and harassment, including but not exclusively the following examples.

 

j. On approaching …………… (………….) for assistance to operate the phone system when covering phone duty. ………… deliberately gave false information on how to operate the system to deal with the calls. ………… being very familiar with the process having to cover phone duty as a part of his duties himself. The complainant being given false information could not undertake the work and had to refer to the correctness of the procedure to ………….. on 3 occasions, receiving increased hostile responses, on each approach. the situation only being resolved on the intervention of ……. (IT department) on her direct approach to …………. and other members of the housing team, where she finally established the correct procedure and reported the procedure back to the complainant. During this time the complainant was unable to satisfactorily conduct her work leaving her openly vulnerable to complaints from her managers on her capability to carry out her work.

 

k. Being fully aware that the complainant was on reduced hours after returning to work after a prolong period of sick leave, and that the complainant had to undergo refresher training on many of the legal aspect of her role, the senior …………deliberately attempted overload the complainant with work including comments such as that ‘ well, we all have heavy workloads’ inferring that the complainant's medical condition should not make an exception, even though the complainant was supposed to be on an agreed ‘phased return‘ and her workload eased during the phased return period.

 

l. Further and in front of ………. (…………) ……… applied psychological pressure stating if the complainant failed to cover a particular duty then …………. would have to break her own annual leave and return to work before she should have to. ……………. Failed to check with other members of the……….. team if they could cover this particular duty prior to applying the psychological pressure to the complainant, who had to attend a medical appointment and could not cover the particular duty cover in question.

 

m. The complainant’s verbal attempts to find a compromise with………. About the undue pressure being applied and workload, without her condition being seriously taken into consideration by……. and having failed, raised her concerns in writing. The outcome of her written complaint was referred to as being 'aggressive' and the complainant made to apologise by ……….. (…………..) specifically for her written complaint. (complaint made in writing and will be produced as evidence. the email is not agressive, threatening or abusive - management just wanted to make me feel bad and transfer the focus).

 

n. No acknowledgement or apology was made to the complainant in regard to the attitude, conduct and behaviour of............ and her responsibilites as the complainants senior officer and direct welfare management for the complainant

 

o. On a particular occasion during January 2012 The complainant had cause to enter to …………team’s room. The hostility emanating from the officers present lead the complainant to record the incident as a diary note for herself and medical professionals. Unfortunately the diary note was filed incorrectly, and to the embarrassment of the complainant this particular diary note was discovered. The complainant was severely reprimanded by…………………… and accused of deliberately misfiling the document. However as later disclosed by another senior manager such incidents of misfiling is a common occurrence. The complainant contends that the heavy handedness in dealing with this matter was a further act of victimisation.

 

p. Further redeployment although raised as an option was not discussed in detail or offered to the complainant.

　

　

Limitation

Do I need to include the following lines?

1. Was it reasonably practicable for …… to present her complaint prior to the …….?

2. If not, did she present it within such further time as was reasonable in all the circumstances?

　

Discrimination (1)

3. Was …….. covered under ‘a protected ‘ act in submitting her grievance and appeal of discrimination, harassment and victimisation following the appointment of ……………. In……….?

4. If so, was the fact that she had made a protected act a significant part of the reason for further acts of harassment and victimisation following the grievance and appeal not being upheld

5. If not, what was the reason for the further acts of discrimination, harassment and victimisation

6. Was that an admissible reason for the acts

7. If so, were the investigations, grievance hearings, and grievance appeals (a) substantively fair; (b) procedurally fair?

8. If the acts of discrimination, harassment victimisation, and failure to uphold the grievances was unfair, what loss has she suffered because of these acts?

Discrimination (2)

Was ………. covered under ‘a protected ‘ act in submitting her written complaint of discrimination, harassment and victimisation following the disclosure and open discussions about her medical condition with her work peers.

4. If so, was the fact that she had made a protected act a significant part of the reason for further acts of discrimination, victimisation and harassment.

5. If not, what was the reason for the acts of disability discrimination, and victimisation and harassment?

6. Was that an admissible reason for the acts

7. If so, was the act (a) substantively fair; (b) procedurally fair?

8. If the acts of discrimination, harassment victimisation, was unfair, what loss has she suffered because of these acts?

………………………………............................................................................................

Suggested directions

 

Do I get involved with this bit?

schedule of loss to be provided by claimant on or before …………

Hearing to be listed for ……………… days/weeks

Witness statements to be exchanged 28 days before the hearing.

Index to hearing bundle to be agreed between the parties 14 days before the hearing.

Bundle to be compiled and copied by the claimant, and one copy to be provided to the respondent seven days before the hearing.

Further help please

Do I have to answer at this point -

The value of the claim

Provide at the CMD a schedule of loss

Provide details of mitigation (what is mitigation)

Give the details of the issues and questions for the ET to decide

What are preliminary/jurisdiction issues?

Would there be any Human Rights or EU law issues involved?

Do I have to provide at the CMD details of my witnesses?

Is there anything else should I include as part of my offered agenda

Do I have to provide my employers with a copy of my agenda prior to the CMD.

also

if i could get an some advice on post 155, it would really be appreciated.

regards

　

　

　

[honeybee13]

This thread doesn't have 155 posts, lindy....

 

HB

[lindyhop]

Hi

Please excuse my error, i should have typed thread 136.

 

thanks for bringing this to my attention

 

Regardds

[lbruk]

Hi Lindy, your schedule of issues is very bulked out! A lot of this I would leave to your statement.

 

You do not need case law at the moment, the CMD is to state that you have a case in law, not whether it is supported by law, what you are claiming, and whether the respondent disputes it.

 

Its basically what questions you want answered by the Judge. So i would break it down into sections:

I forget the complete nature of your case (I'm Sorry!) But can give an example of what i mean.

 

 

Disability Discrimination

 

1) Is the Claimant a disabled person pursuant to Section 6(1) of the Equality Act 2010?

 

2)

a. Did the Respondent have knowledge of any such disability, constructive or otherwise?

b. If so, upon what date did/should the Respondent become aware of the disability?

 

3) Has the Claimant been subjected to less favourable treatment (direct discrimination) because of a disability contrary to Section 13(1) of the Equality Act 2010 in respect of the following allegations:

 

a. Instigating disciplinary/performance proceedings? and/or

b. Failure to investigate the claimants crying and upset demeanour in store and in disciplinary interviews in XX and XX?

c. Ignoring signs of the illness in the claimant?

d. The Respondent’s refusal to exercise its discretion in favour of the Claimant to pay sick pay?

 

 

4) Has the Claimant been subjected to discrimination through the Respondent’s failure to make reasonable adjustments contrary to Section 20 of the Equality Act 2010 in respect of the following allegations:

 

a. Failure to consider any alternative roles i.e. demotion to a more junior role than that of Store Manager?

b. Failure to consider or suggest reasonable adjustments once knowledge, constructive or otherwise, of the claimant’s ill health was known – specifically:

i. Failure to support the claimant while they attended intensive therapy at the Priory Hospital in the form of paying sick pay for during the Claimant’s absence so he would not have to worry about finance?

ii. Failure to consider relieving workload and/or targets of the claimant whilst the claimant was undergoing assessment and treatment for depression from February 2011?

iii. Failing to support the claimant in terms of additional staff/managers to assist in the running of the store that were readily available immediately after the claimant was signed off unfit for work by his GP?

c. Failure to adjust the disciplinary process once actual knowledge of the claimant’s ill health was known? Specifically:

i. In delaying the proceedings to allow for medical assessment and treatment to be instigated.

ii. In separating the meetings to deal with the request for adjustment to the Claimant’s role and the disciplinary to be held at different times.

iii. In delaying the proceedings so that the Claimant would have more time to prepare a case of defence.

iv. To supply the Claimant with the evidence against him before the disciplinary meeting took place.

v. To look at changing the location so the Claimant would not have to drive such a long distance while being disabled.

d. Failure to support the claimant with increased supervision and/or support as requested in November 2010?

 

 

5) Has the Claimant been subjected to harassment contrary to the Equality Act 2010 in respect of:

a. The “inappropriate language” used to admonish the Claimant by Area manager on 17th April 2010.

b. The threatening and intimidating language used by Sales Director in January 2011. Specifically the visit towards the end of January, xx was very particular in picking up detail such as a price label being wonky, and one piece of rubbish in a storeroom. xx said “I don’t care whether the management team are happy, I want them where they will make me money.” And “it not only that I want it that way, I will have it that way.”

c. The body language used by Operations Director at the National Managers Meeting in March 2011. Specifically: greeting everyone in a friendly and open manner, when he got to me I felt a wave of hostility from him, the smile drained from his face, he did not speak to me just shook my hand and moved onto the next person who he greeted with a friendly hello and handshake.

d. Area Manager’s attitude towards the Claimant on the phone and during various visits, saying such things as “XX can do it (the covering manager for my holiday) why cant you do it and “you have been here XX years, you should be able to run a shop with your eyes closed.”

e. Comments made in disciplinary and investigatory interviews such as “don’t cry XXX used up all my tissues” from Personal Director. And other comments made within these interviews.

 

Respondent’s position:

The Respondent submits that no allegations of harassment were made within the Claim Form and therefore no issues arise under this heading.

 

Claimant’s position:

Claimant submits that although no direct allegation of harassment was made in the Claim Form it is clear from the number of visits and continued criticism alongside these that there was harassment present in this case.

 

This was part of my Schedule of Issues. Hope that helps a little

[lindyhop]

Hi Ibruk

 

Thank you for getting back to me. i have been going through an event worse patch than usual, hence the delay in getting back to the site.

 

i will now review and rewrite the issues concerned. but when do i submit the statement at the CMD or is it part of the bundle?

 

also do i have to agree an agenda with my employers prior to the CMD (time is very tight for this now) and is it essential that i supply my employers with a copy of my agenda prior to the CMD hearing?

 

Thanks

[lbruk]

The exchange of statement happens on a specific date set by the judge. Normally a week or so before the tribunal date. It does not have to be ready for the CMD. No you do not have to show your agenda, but the tribunal should have supplied you with the agenda that they will stick too?

[lindyhop]

Thanks for you help again Ibruk. Even though my employers already have a general idea of my issues, i was worried that i would be forewarning my employers giving them further detail of my issues enabling them time to come up with 'smart' responses for the CMD to back up their request for either PHR, out of time, or their insistence with the DD that they have resolved the issue - which is not the case.

 

now they will have to challenge on the spot, this is a relief and as far as i am concerned balances things out a bit.

 

Regards

[lbruk]

You lay out what laws you feel they have broken, and how the tribunal effectively can rule on those laws. No further detail is basically needed, the judge will just deal with that at the main hearing.

 

So its literally:

 

Disability discrimination, Section 20 of the Equality act - failure to make reasonable adjustments. That's all the judge wants to know at this stage. The respondent will want that thrown out, because they always do you just say thats its part of your case and will give more detail at the hearing.

[lindyhop]

Hi again, just gone through my issues again, but conentrated on DD amendment request only. please advise as to what are the equivalent questions for RA.

 

ie DD= has the claimant been subject to less favourable treatment/has the claimant been subject to discrimination/harassment etc. the RA questions will differ slightly i presume. where can i find the list of RA questions for me to answer so that i am clear with my points in law for the judge to consider.

 

Regards