Constructive dismissal? - ** SETTLED **

[dj1971]

Anyone got any ideas on the questions above re bundles?

 

DJ

[Pusillanimous]

Two quick question please,

 

1) Normally how long before the trial are both parties ordered to exchange documents?

 

2) How long before the trial is the bundle normally completed?

 

DJ

 

It depends on the circumstances of the case. However, the covention appears to be swap bundles and witness statments at least a month beforehand. However, things can be added to the bundle up until the hearing (and documents even produced during the hearing, if they become salient). Your cmd judge should give you a timetable of deadlines. If not, ask for one.

 

So, if your hearing is set for January, you need to aim to be completed by December or so.

[Pusillanimous]

An expensive barrister did nothing but let me down on the big day.

 

Regards

 

BB

 

I tend to agree. If you are a Claimant who can afford representation , either through insurance or other means, you will in all probability end up being advised by junior staff who know little more than you do! They are helpful for the uneducated who are unable to write their own legal letters, or collate their own bundle, etc.

 

What's really needed is a good barrister, and unless you are lucky enough to get charity and acquire a top one, it can be touch and go. I have heard stories of people being abandoned by their barristers and left in the lurch at the last minute.

[dj1971]

Will continue to fight my battle myself after my experience with a solicitor.

 

Have almost completed a first draft of my statement and am well ready for them at the cmd, still no word on when that will be though.

 

DJ

[dj1971]

I have received a letter from the court today and the second case management discussion will be heard on 15th November at 3pm.

 

We have 3 weeks to prepare.

 

DJ

[professional1964]

I have read your threads. I want to wish you good luck. I have withdrawn my ET claim because of the stress it has caused me and the never ending lies the respondent has told and their twisting. They too said I had not mentioned sexual harassment in my ET1 when in fact I HAD. I hope you are successful. You sound as if you now have everything under control. Please let us all know how you get on.

[dj1971]

Professional1964,

 

Thank you for your kind words of support and encouragement and sorry to hear about your case.

 

Was right for you to end your case and I understand what you mean about twisting and the lies, real chancers. It almost got too much for me as well and I very nearly pulled the plug on the whole thing.

 

Of course I will keep use updated as things progress.

 

DJ

[dj1971]

The respondent have written an email to the tribunal service and copied me in.

 

Their letter refers to a second letter sent by the court to confirm the PHR on 30th January 2013. The PHR was set at the first cmd for the purpose of the EJ deciding whether I am disabled or not on the assumption the respondent did not concede upon receipt of my medical records.

 

However the respondent have conceded that I am disabled and in their email to the tribunal they have pointed the PHR is no longer necessary and asked they remove it. The respondent has also pointed out the dates set for the full hearing have been listed to be heard by a judge sitting alone and as I have claimed disability discrimination the hearing must be heard by a panel.

 

This I believe is good news that they are asking the court to cancel the PHR as I had believed they would want to list a PHR to attempt to have my claims for harassment and victimisation thrown out as they claim I did not include them in my ET1 claim form. Looks they will try to have them thrown out at the cmd on 15th November.

 

However I am ready for them and will be well prepared to defeat their argument.

 

DJ

[dj1971]

Hi All,

 

In preparing for the cmd on 15th November I have been going through my notes from the previous cmd back in September and one of the things that was discussed is judicial mediation.

 

Has anyone had experience of this or know what it involves?

 

DJ

[Pusillanimous]

You need to have legal representation for a JM. It is not generally considered suitable for discrimination cases. However, there is no harm in asking for one. They are not by any means barred. If, as you are arguing, the harassment and victimisation were in your ET1 and/or F&BP not sure the EJ will be able to strike it out at a cmd. If he or she does try to - as they have wide ranging powers - insist on a PHR with a full panel. If refused, ask for written reasons for the decision, which you can in theory then appeal at the EAT. You should argue that discrimination ought not be decided by an EJ sitting alone in a cmd or PHR, as evidence needs to be looked at, which an EJ won't have at a cmd, (but would at a PHR).

[dj1971]

Hi All,

 

In need of some advice please.

 

I have today received a list of issues from the respondents legal team in anticipation of the cmd listed for 1 hour on Thursday 15th November.

 

The list of issues starts by pointing out that the respondent has omitted issues argued in my further and better particulars document that were according to the respondent not argued in my ET1 claim form.

 

Under the heading of constructive unfair dismissal the respondent goes on to list a number of events that I have claimed both in the ET1 and document of further and better particulars and asks in question 1 did these events occur?

 

In question 2 they have asked If so did these events individually or cumulatively amount to a breach of the implied term of mutual trust and confidence?

 

Question 3 asks should the claimant be regarded as having waved any breach that he may prove my reason of delay in resigning until 6th June 2012?

 

Question 4 asks did the claimant resign his employment on 6th June 2012 by reason of any breach of contract on the part of the respondent?

 

Question 5 asks if the claimant was dismissed, can the respondent establish a potentially fair reason within the meaning of S98(2) Employment Rights Act 1996 for his dismissal, namely:

 

a) some other substantial reason (the breakdown in the working relationships between the respondent and the claimant)

 

b) capability

 

c) misconduct

 

Question 6 asks, was the claimants dismissal fair having regard to the factors set out in s98(4) ERA 1996?

 

Question 7 asks, did the claimant contribute to his own dismissal

 

Question 8 asks, would the claimant have been dismissed in any event for some other substantial reason and/or capability and.or misconduct?

 

My question is am I required to make any form of response or amendment to the list of issues before the cmd on 15th November?

[lbruk]

No, you dont have to respond to the questions directly at the moment, i would look to answer the questions in your own mind, but simply say at the CMD that you have enough evidence to support claim xx and yy because of xx event, you dont want to give the respondent to much information before the actual tribunal at the moment, your statement will explain all. I am assuming that you have enough evidence/explanation on the questions above.

 

Basically what they have done is simply question what you have put in the ET1 or further communication, which is completely understandable as they wont admit liability! The CMD is simply to work out what your claim is and where it stands under the current law, nothing else, no evidence needs to be submitted, just reference to the law is enough.

[dj1971]

Thanks Ibruk,

 

The respondent is suggesting my claim for harassment should be thrown out as apparently I have not properly indicated how the events I am claiming as harassment are related to my disability and I don't understand this point.

 

For example:

 

One of the events I have complained about is when I sought clarification for something from my manager and he responded in an aggressive and intimidating manner in front of my colleagues thus creating an environment that was degrading, intimidating and humiliating for me.

 

But I cannot see how this would link to my disability.

 

Any comments suggestion or guidance welcome.

 

DJ

[Pusillanimous]

The list of issues is what they are going to cross examine you on at the hearing. It is their prerogative to include anything they like. You should send in your list of issues.

 

Re your manager's aggressive attitude: this was inappropriate for someone with your sensibilities and caused you to have an alarming panic attack in the park, which he ought to have known would happen.

[lbruk]

Just look up the equality act and see if your case is supported by it. If it does simply quote the passage to the judge, not the parts of the case that apply to you - so you need to do some homework under the equality act (attached) and the other parts of employment law that support your case.

 

employercode.pdf

[dj1971]

Thanks Ibruk,

 

I am still struggling with connecting the act of harassment to my disability of depression and or personality disorder.

 

Could it be that my manager acted in an aggressive and intimidating manner in front of my colleagues creating an environment that was degrading, humiliating and humiliating for me because he knew of my disability and the effect his behaviour would have on me?

 

DJ

[lbruk]

well harassment is defined as unwanted or unwelcome comments/actions that degrade the recipient, so any action that your manager shouted at you, said nasty things to you or said things to others about you is classed as harassment.

[dj1971]

Ibruk,

 

I get the meaning of harassment and have given several examples of it. But the respondents solicitor are trying to have this argument thrown out because I have not indicated how it is connected to my disability. It is the linking of the incidents to my disability I am struggling with.

 

DJ

[lbruk]

i think that you just need to link that you were harassed BECAUSE of your disability if you can. Having a go at someone whilst they have a known disability can easily be construed as harassment. So i would take a couple of events that happened after they knew of your disability, and take what they said, the way they said it and how you felt after they had said it to you. If you were distressed and upset after these events, then you were harassed.

[dj1971]

Excellent,

 

Thanks Ibruk, I understand now.

 

The second issue is with my claim for disability discrimination for failure to make reasonable adjustments.

 

In my ET1 claim form I identified the claim as being "The grounds of my claim for discrimination are that someone suffering from a non mental health condition would have had a risk assessment immediately with prompt adjustments being made. I suggest the reasonable adjustments that could have been made would have been (i) training for my line manager in how to manage someone with a mental health condition. The effect would have been him being able to recognise the symptoms of my condition sooner and take action to relieve these symptoms. (ii) provision of a buddy with whom I could meet on a regular basis to discuss work and the effect it was having on my condition."

 

At the cmd in September I identified the pcp as the respondents failure to carry out a risk assessment when they became aware of my condition despite several periods of sick leave due to my condition. The judge said this could not be a pcp. So I struggled to identify the pcp but finally came up with a policy requiring me to attend a separate meeting to identify what would be required in order for me to achieve a grade 4 performance grade at my next annual performance review. This put me at a disadvantage because I could not understand why there was a need to hold a separate meeting despite requesting clarification from the respondent. I identified the reasonable adjustment as to hold one meeting to hear my grievance and discuss my grade 4 guidelines.

 

However the respondent in their list of issues are saying the claim I have identified in my document and further particulars does not relate to the claim in my ET1 and therefore they consider the claim is no longer pleaded.

 

Am I not entitled to plead a different pcp in the document of better and further particulars as my previous pcp had been rejected by the judge?

 

Any comments advice appreciated.

 

DJ

[lbruk]

You can bring up any new things you want in a CMD, its up to the Judge if they accept them, for instance, i neglected to mention in my ET1 a claim of harassment, the judge accepted that there was enough evidence that this could be decided in the main hearing.

 

So have a think of what PCP applies to you, but to be honest you don't have to prove anything until the main hearing, the CMD is purely what you are claiming, and where it fits in the law. Nothing else. Everything else should be decided at the PHR or the Main Hearing.

 

You don't have to compare yourself to someone else, there is no comparators in Disability Discrimination.

[dj1971]

So does it not matter that I have given in the document of further and better particulars a different claim as to the one I gave in my ET1, or as the respondent has put it the claim in my further and better particulars is not related to the claim made in my et1?

 

DJ

[dj1971]

OK,

 

I have decided to go back to the original claim I made in the ET1 and withdraw the different claim submitted in my document of further and better particulars.

 

So the pcp would be the practice not to carry out a risk assessment following several periods of sick leave including one for a period of four weeks in February 2012. This put me at a disadvantage because the company failed to identify my managers style of management as a significant factor in my continued ill health. A reasonable adjustment would have been training for my manager in how to manage someone with a mental health condition.

 

This was what I was trying to claim in the original ET1 claim form, but does it fit?

 

DJ

[dmlferguson]

I'd urge you not to withdraw anything. You can successfully argue both points without losing any face. But I anticipate the judge will require many many reasons that you had to leave and many many reasons why you felt harassed. Every situation that contributed should be looked into in detail ready for your CDM just in case.

 

There is no need for you to withdraw anything as the judge will decide what to agree with at the end of the day.

[Pusillanimous]

Do not chop an change your claim, as it will weaken it. Go with the flow.