Constructive dismissal? - ** SETTLED **

[dj1971]

Bump! Anyone able to offer some help please

[Emmzzi]

With what specifically?

[dj1971]

Now that is weird, could have sworn I wrote a question about next step after working through the respondents but it appears to have gone....

 

Anyway, my question was that having gone through the respondents grounds for resistance and collated a letter to their solicitor requesting copies of all the relevant documentation referred to, am I right in thinking next step is to send this letter to their solicitor and wait for them to return the documents?

 

DJ

[dj1971]

Quick update.

 

Opted to send the questions to my former employer through their solicitor and received a letter via email then printed copy through the post today stating that the respondent is not under any obligation to provide the documents at this time and will not be doing so until instructed by the tribunal to do so.

 

I have been through their ET3 and Grounds of Resistance (GOR) with a fine tooth comb and is unbelievable how many times they have contradicted themselves on the GOR. Just goes to show, you have to be a very good liar to remember your own lies and my former employers hr department are not good liars.

 

80% of their case is based on a medical report obtained from their Dr before I was constructively dismissed which in the whole was a good document, but for the last sentence stating I am not disabled for the purposes of the Equality Act 2010. I am claiming unfair constructive dismissal and disability discrimination. However, I have received a subsequent letter from the same Dr who wrote the medical report stating that the decision on whether I am disabled for the purposes of the Equality Act 2010 is a legal one, normally made by a tribunal and as he is not legally qualified, his opinion is just that, an opinion.

 

Happy days!

DJ

[dj1971]

Update,

 

Have received a letter this morning from the tribunal informing me of a case management discussion.

 

Am hoping someone can tell me what it isa d what do I need to do in order to prepare?

 

Appreciate your help

 

DJ

[mariefab]

The link below should help:

 

http://employment.practicallaw.com/0-506-8532#a757539

[dj1971]

Thanks Marie,

 

Certainly has helped me to understand what to expect.

 

Just to check, if I have understood properly the CMD is attended by a tribunal judge, the respondents solicitor & myself and is an opportunity to look at what the key issues are in this case, for the judge to set out a timetable of events eg. to set a date by which both parties must have forwarded to the other a copy of all documentation on which they intend to rely in their case. The judge will subsequently set a date for the tribunal hearing.

 

Hope I have got that right.

 

The bits I am struggling with are:

 

What id a cast list?

 

What is a scott schedule?

 

Appreciate your help

DJ

[lbruk]

Hi,

 

Cast List is the potential witness list, so you disclose how many witnesses you will have and the other side do the same. Its exactly what the title says - who is in this story.

 

The Scott Schedule is sometimes called the "Schedule of Issues" and "Schedule of Loss" basically its a list of what you are bringing to the tribunal for them to decide on. You have your outline, and then both parties will write their "opinions" as notes to each claim. Also its for you to Value your claim in terms of what you have lost from the employment law breach.

[dj1971]

Thanks Ibruk,

 

So do I have to provide a schedule of loss at the CMD, or is that for later on?

 

I am worried about the "schedule of issues" Don't really understand what I am supposed to put here. Does it have a particular format and what type of things can I put in?

 

My claim is for unfair constructive dismissal and disability discrimination so realise the schedule could start with:

 

1) Was the claimant unfairly dismissed?

2) Is the claimant disabled for the purposes of the equality act 2010 S6 (1).?

3) If the claimant is disabled, did the respondent commit unlawful discrimination against the claimant on xx date?

 

Am I on the right track?

 

Where the respondent has denied xx happened on xy date, can a part of the schedule be did xx happen on xy date?

 

Appreciate any help anyone can offer.

DJ

[becky2585]

It's a list of legal, not factual, issues at this stage. If the respondent is represented, the judge will ask them to take the lead.

 

Your numbered questions are definitely on the right lines.

 

Look up which statutes apply to which claim.

 

Just by way of example, for an indirect disability discrimination claim, issues under that section would be broken down as 1) was there a PCP which would indirectly discriminate, 2) were people of the claimants particular group at a disadvantage, and 3) was the claimant disadvantaged.

 

The issues will be out forward in the ETs order so won't be decided at any CMD, though.

[dj1971]

Have completed a first draft of the schedule of issues.

 

FYI my claim is that:

1) I was bullied and harassed by my line manager. I tried to address the matter directly with my manager but to no avail. So I raised a formal grievance to the manager of my manager, which was rejected on the grounds of no case to answer. I submitted an appeal with the same outcome and subsequently resigned claiming constructive unfair dismissal on the grounds that through my employers failure to address the issues of bullying, they had made it impossible for me to continue working for them and left me with no choice but to claim constructive dismissal for breaching the implied term of mutual trust and confidence.

 

2) As a long term sufferer of depression & anxiety, was discriminated against through my employers refusal to make reasonable adjustments. (specifically training for my manager on how to manage someone with a mental health illness).

 

Would really appreciate if anyone could have a look at my first draft and amend/change as they see fit.

 

Many thanks

DJ

Issues for the court.doc

[becky2585]

I'd remove question 5 and anything to do with remedy at this stage. It doesn't sound as though you're claiming indirect discrimination - if you aren't, then remove 6 & 7.

 

Also, you'd do well to stick to this - its a catch all agenda. If you prepare each section, chances are the judge won't ask for at least half of it, but there won't be any surprises (this is the agenda which I also use). So if you want, you can add the remedy points, but the rest of your questions really fall squarely under Section 4.1.

 

http://etclaims.co.uk/wp-content/uploads/2011/06/CMD-Agenda-Word.doc

[dj1971]

Excellent,

 

Your continued assistance and support is very much appreciated.

 

I am going for "the last straw" concept in terms of constructive dismissal and breach of the implied terms of the contract "mutual trust and confidence"

 

Have therefore made some amendments to the issues for court document and would again really appreciate your feedback.

 

Did you approach the respondents solicitor in your case and agree the list of issues and draft agenda before the cmd?

 

Many thanks

DJ

Issues for the court.doc

[becky2585]

I'm an employment lawyer so I deal with CMDs fairly frequently... Only if both sides are represented would I attempt to agree an agenda, in my experience it isn't usually necessary, but I believe some tribunals require it. Maybe ask the other side if they want to agree an agenda?

 

If this is just for a CMD, your list of issues may be too detailed, as it needs to keep to the law, rather than facts... So whilst they would all be relevant issues for the final hearing, it's unlikely you'll be asked about any of your issues under question 1.

 

Don't forget that the respondent, if represented, is likely to be asked to take the lead, so in reality you may need to do very little!

[lbruk]

That looks really good DJ good luck!

[dj1971]

Wao!,

 

Is really generous of you to help out on the forum Becky.

 

Thanks for the feedback. Do you therefore suggest I keep the question at 1) just remove the issues a), b), c), etc.

 

The respondent is represented and I thought it would reflect well on me if I am seen to be actively participating in the process and trying to save the tribunal some time.

 

In terms of schedule of loss, how can I calculate the figures for injury to feelings and injury to health?

 

Kind Regards

DJ

[becky2585]

I would say it depends on whether you're agreeing an agenda or not - if not, maybe leave the factual issues out, but you are definitely on the right lines. And it is good you're making the effort to understand the process like you are, you'd be surprised how many unrepresented claimants make no effort whatsoever!

 

In terms of injury to feelings, ultimately it's assessed by the tribunal, but for schedule of loss purposes you should look at the Vento guidelines (awards are calculated between £1,000 and £30,000 depending on severity). There's no damages for injury to health in the ET, but injury to feelings awards represent stress, worry, humiliation, anxiety etc.

 

I actually quite enjoy my job and posting here so I don't see it as generous, lol!

[dj1971]

Thanks Becky,

 

I see it as being in my best interests to learn about the process, less likely to be conned or have the wool pulled over my eyes by the respondents representative.

 

Will post a copy of the schedule of loss once I have completed it, would really appreciate if you cast your eye over it.

 

Glad you enjoy your job, is really important to enjoy what you do.

 

Well I don't see any other employment lawyers giving of their time the way you do, so I for one am extremely grateful to you. Is a very humble thing to help out others who may not otherwise have access to the information they need.

 

Once again a huge thank you.

DJ

[dj1971]

Ok, I have done my best to complete a schedule of loss.

 

Would really appreciate if becky or someone knowledgable would have a look and share their thoughts.

 

Much appreciated

DJ

Schedule of loss.xls

[lbruk]

Looks good, I would remove the loss of earnings from the discrimination, as you would get these from the basic and compensatory awards, the Injury to feelings is what you are likely to get from the discrimination front not the loss of earnings. The loss of Statutory Rights now is for 2 years rather than 1 (unless you were re-employed before Apr 1 2012) so I would make that £600 rather than £300.

 

What about the loss of your contributions to the pension? As you cannot contribute to it either. Although i knows its a draft copy, change some of the $ to £

[dj1971]

Thanks Ibruk,

 

I have made the amendments as suggested and would appreciate if you could give it 1 more look over.

 

I have also aded injury to health even though Becky has previously mentioned this does not exist in employment tribunals, as it is mentioned in the book I have been reading "employment tribunal claims - tactics and precedents" by Naomi Cunningham and Michael Reed. What are your thoughts on this?

 

Many thanks

DJ

Schedule of loss.xls

[lbruk]

Hi,

 

The only other thing i cant see is the loss of future earnings? Are you putting this in or not?

 

AFAIK Injury to Health is part of a Personal Injury Claim using the JSB guidelines. Although the Tribunal generally does not rule on PI, if the injury has specifically come from the discriminating act then they can award remedy for this. Otherwise they will leave it up to the PI claim route.

[lbruk]

Just looking through again I would lay it out as follows, I feel you have repeated a few things a number of times where not needed in your spread sheet. The other things is that you net week pay seems to change?

 

I have added a tab to maybe help you

 

Schedule of loss (2).xls

[dj1971]

Ibruk,

 

Thank you for your assistance, it is very much appreciated.

 

I have updated the figures and calculations on your template, would appreciate if you could have another look and offer any suggestions or further amendments.

 

There is no doubt that although my primary condition of depression has existed since for many years, the stress, anxiety and depression I have been suffering over the past 12 months has been as a direct result of my former managers bullying behaviour and senior managements refusal to acknowledge or do anything about it.

 

Therefore I have opted to keep a compensatory element for injury to health in the schedule.

 

Hope it all makes sense now.

 

DJ

Schedule of loss (2).xls

[lbruk]

OK That's fine, thought don't be surprised if during the CMD the Judge states that he cannot rule on it. That happened in my case (exactly the same condition). But your Schedule of Loss looks very good now, its worth setting it out in a nice format - as a solicitor does - so they get the opinion that you are receiving legal advice.

 

Its also worth mentioning that when they try to settle with you that you keep the PI claim very relevant, they may wish to settle both claims at once, or not depending on how they operate.