Constructive dismissal? - ** SETTLED **

[dj1971]

Thanks dml,

 

Chronology of events attached.

 

Appreciate any advice/guidance you can offer.

 

DJ

[dj1971]

bump!

[billybobynumeroduo]

"Mid Staffordshire General Hospitals NHS Trust v Cambridge [2003]

 

Barber v Somerset Council House of Lords [2004]"

 

Hi there DJ,

 

thanks for the caselaw, I think I will try and implement these caselaw into my argument at the Oral hearing 3 (10)

 

I'm sorry about what has happened to you but I cant help noticing an uncanny similarity to my case, I was suffering with depression and I told the HR manager who said he would get back to me, drop everything and help me as soon as possible and nothing was done...similar to DML's post.

 

"If, for instance, you were dealing with a situation and spoke to a manager about it and he said "don't worry about it I'll sort it". Then you told him you were suffering with depression and would like to know the situation had been resolved, to ease your stress. If your employer then said "you deal with it its your job, I'm not here to do your dirty work". Then this type of attitude continued, that would be harrassment due to your disability."

 

I really would like to help you I have been to ET and lost miserably mainly through the company not complying with disclosure rules. If there is anything I can do to aid your cause please let me know!

You do seem to be really on the ball though, I know you have to be! Keep going mate I have a feeling you are going to be alright!

 

Best wishes

 

BB

[dj1971]

You welcome for the case law Billyboby,

 

Also have a look at Whiteson V Croydon Borough in the HIgh Court 2010, which found that An employer had a contractural duty of care to take all reasonable steps to protect the mental health and safety of it's employees. There might be some more useful case law examples in the following link:

 

https://www.checkyourmood.com/content/baker-refractories-v-bishop

 

Thank you for the words of encouragement. I am not confident I am going to succeed with the disability harassment claim, as I am struggling to link the harassment which clearly took place and my disability. Even so, I will continue the fight until the end and let the judge decide whether I have a case or not.

 

Even though the respondent are asking for the case of disability discrimination for reasons of failure to make reasonable adjustments thrown out due to unlikelihood of success according to the respondent, I am fairly confident I can win that one with some good case law examples and the fact they knew about my depression as far back as May 2011, even though they claim not to have had material knowledge of my disability at anytime during my employment, not sure how they hope to argue that one.

 

What I am certain of though, is far too many employers behave in a dispicable manner towards their employees and continue to do so because they believe they can get away with it, as not many employees want to go through the hassel of taking their employer to court. I know of at least 2 people who suffered at the hands of my former manager prior to me and were transferred to another department because of it. But I am determined to stand up to him and make them realise this behaviour is unacceptable and sometimes the employee does have the courage to see the matter through to the employment tribunal.

 

Win or lose, I will know that I have done everything I possibly can to stand up to the bully and expose him for what he is. A coward.

 

DJ

[dj1971]

I submitted the disability harassment document yesterday and also received a copy of the notes from the cmd on 15th November.

 

One of the orders states that on or before 9th January both parties must disclose a list of documents in their control that are relevant to the issues that the tribunal has to determine at the hearing. In the claimants' case, it includes all documents that are relevant to remedy.

 

What are documents relevant to remedy?

 

DJ

[Pusillanimous]

Probably means a schedule of loss by another name.

[billybobynumeroduo]

Hi there,

 

I just would like to clarify, DMLferg and DJ,

 

is a return to work interview the same as a 'risk assessment'?

 

Everytime I returned to work after an absence having been signed off the junior staff and the manger whom was harrasing me would conduct a return to work interview. This was by no means a formal risk assesment and I felt was very informal. Only lasting 5-10 mins.

 

Have the respondents covered themselves for lack of risk assessment by doing a 'return to work' interview on me?

 

Sorry to jump in on your thread DJ, just I am going through yours in full and picking out the many similarities the two cases shares

 

All the best

 

bb

[dj1971]

Hi BB,

 

I too had a brief return to work interview with my former manager following each period of sick leave.

 

However I don't believe the respondent can claim this as a risk assessment as there was no proper risk assessment done and anyway they are claiming they did not have constructive knowledge of my disability at any material time, therefore they cannot claim to have done any kind of risk assessment.

 

DJ

[dmlferguson]

Hi

 

Sorry but they can class this as a risk assessment. It does depend upon how many employees you have and what was stated during the return to work interview.

 

Less than 5 employees and a risk assessment doesn't have to be in writing. More than 5 and it doesn't have to be in a set form but does have to be written.

 

If you had your return to work interview and said "I still feel like my leg will fall off if I stand at the till all day" and they didn't then adjust your work accordingly, then this interview could never be argued as being a risk assessment. Purely because you showed a risk and they did not assess it. However if on your return to work you said that you were fine and there was nothing to assess then it is very easy for them to show this was a risk assessment.

 

Hope this helps.

[dj1971]

The company I worked for had 90+ employees.

 

When I returned to work following a period of one week sick leave signed off by my gp for depression in May 2011 I had a return to work interview with my former manager during which I told him about the difficulties I was still having with one of my former colleagues. The manager then wrote to HR and informed them of the issues and said he would deal with it, but unfortunately nothing was ever done.

 

The colleague had been appointed as the person responsible for training me when I started with my former employer, but he proved himself both unwilling and unable to train me. He would speak to me like I was something he had trodden on and belittle me at every opportunity. One day I lost my patience and shouted at him and I was pulled into the office and told off for it.

 

Next day I invited him for a coffee and apologised for shouting at him, I thought that was the end of the matter. But unfortunately nothing changed and he continued to sneer, pass snide comments and belittle me at every opportunity. Things got so bad I could not even go to ask him for help, he would just belittle and talk down to me.

 

A couple of weeks after returning from the weeks sick leave I went to speak with HR for advice. I told them I was afraid if the colleague continued to belittle and undermine me in front of my colleagues I might slap him. Only advice I got from HR was to inform me if I struck anyone I would be dismissed on the spot.

 

Even though they now knew I was suffering from depression, was having problems with this colleague and went to tell them I was concerned I might lose my temper, my former employer did nothing to help. So from this point on I just went out of my way to avoid this colleague as much as possible and bite my tongue really hard at his snide comments, sneering and belittling me at every opportunity.

 

With all of this going on and my manager going out of his way to pick faults in my work, criticise me at every opportunity, no wonder I eventually fell apart.

 

DJ

[dj1971]

Today I have been copied into an email from the respondent to the employment tribunal requesting that my claim for disability harassment be added to the list of issues to be considered at the PHR on 30th January.

 

The respondent alleges that the claim for disability has no reasonable prospect of success.

 

DJ

[dj1971]

Can anyone tell me if I have the right to see a health & safety risk assessment report carried out by the local environmental health at my previous employers?

 

DJ

[Pusillanimous]

Can anyone tell me if I have the right to see a health & safety risk assessment report carried out by the local environmental health at my previous employers?

 

DJ

 

I doubt it, as they are considered "highly confidential".

[dj1971]

Not even under the freedom of information act?

 

DJ

[billybobynumeroduo]

Hi DJ,

 

under the freedom of information act would you also be able to see if your employer had previously had legal proceedings brought against them for unfair dismissal or otherwise?

 

I am interested to find out what the purpose would be to serving a FOI request on an employer?

 

Kind Regards

 

BB

[steampowered]

Freedom of Information Act only applies to public bodies, not private employers. If you need information about you specifically you can do a SAR and if it is general information that is particularly important to your case you can ask the ET for disclosure. What you can't do is just ask for a bunch of general documents hoping that something bad will come out of it.

[billybobynumeroduo]

thanks for clarifying this steampowered,

 

I have made a subject access request already and received a response. I have been very specific in what I requested and the ex-employer is still withholding information, therefore I have written a letter of non-compliance and copied the ICO in on this.

[dj1971]

Thanks Guys,

 

I am going to try the freedom of information request to see if I can get a copy of the report from the most recent health & safety inspection carried out. May not get anything but won't cost me anything to ask.

 

I did speak to the local environmental health department after I was constructively dismissed and the officer told me it had indeed been a long time since an inspection had been carried out at my previous employers and agreed to make an inspection. May be totally coincidental, but the HR manager left very suddenly a few weeks later and went back to Australia. They had only been in the post 7 months which was very unusual. Wondered if it might have been something to do with the health & safety inspection.

 

I too have done a SAR on my previous employer and actually they have been very co-operative. They gave me all the documentation I requested and a few documents I had not even asked for such as the minutes from my former managers disciplinary hearing after I submitted a formal grievance against him.

 

DJ

[dj1971]

Hi All,

 

Hope everyone had an enjoyable xmas & new year break.

 

I have the PHR on 30th January at which the respondent has made an application to have the following claims thrown out:

 

1) Racial harassment due to claim being out of time

2) Disability related harassment due to no prospects of success

3) Disability discrimination for failure to make reasonable adjustments due to no prospects of success.

 

My documentary evidence must be submitted by 9th January so have started to prepare the attached document and would really appreciate some feedback/suggestions.

 

I have only covered Racial Harassment so far rather than writing one long document and expecting people to read it.

 

Thanks in advance

 

DJ

[stu007]

Hi dj

 

Hope you dont mind have converted your word doc to PDF as well if the Site Team wish to place it beside your word doc no probs.

 

hope you dont mind.

[billybobynumeroduo]

Good luck DJ and happy new year, I had a read and hope the judge will allow the claim in

 

Regards

 

BB

[Pusillanimous]

I would advice you mention your clinical depression as the just and equitable reason for extending the time limit. There is case law n this. I know one person who was able to argue being nine months out of time because of his mental health disability.

[dj1971]

Thanks everyone.

 

The second claim to be considered at the PHR is Failure to make reasonable adjustments and I have attached my argument on this one.

 

Appreciate any feedback, comments or suggestions.

 

DJ

[Pusillanimous]

Feedback: Careful not to assign motives to Mr Jones. A policeman would just write, "Mr Jones was grinning." Leave it there. Full stop. You might be wrong about what his thoughts towards you are. That is for the tribunal to infer. You need to state that your tremors and swearing is directly connected to your disabilty symptoms. Anti-social symptoms would not normally qualify as disabled. For example, pyromania, drug addiction and alcoholism are usually excluded from the Act.

 

Number your paragraphs.

[dj1971]

Got a question need some help with please.

 

Have a PHR on 30th January and both parties were instructed to disclose documents on which we intend to rely for the PHR.

 

I disclosed my documents and the respondent solicitor is saying they are not relevant to the hearing and therefore refuse to include them in the bundle.

 

Can they legally do this?

 

DJ