Constructive dismissal? - ** SETTLED **

[dj1971]

Thanks Pus,

 

Hearing is at 10am and scheduled for 3 hours.

 

Am meeting my counsel at 9am.

 

Fingers crossed.

 

DJ

[dj1971]

Hi All,

 

A good result from the PHR today.

 

The claim for racial harassment against which the respondent had an application to strike out on the basis that it was technically out of time, the judge has allowed to proceed to the full merits hearing.

 

Same outcome with the claim for disability harassment.

 

With the claim for failure to make reasonable adjustments, my pcp was that the respondent had failed to carry out a risk assessment following several periods of disability related sick leave. It has materialised that the respondent did have a policy in place whereby a risk assessment should have been carried out. Therefore my counsel argued the claim should be pleaded as a direct discrimination claim and we have been given 7 days to clarify our position.

 

Judge also refused to issue a deposit order, so all in all a good result.

 

To be continued.....

 

DJ

[Pusillanimous]

Well done! Good news, indeed.

[dj1971]

In need of some help guys.

 

The deadline for submitting documents I will depend on at the full merits hearing was last Thursday.

 

I spoke to my solicitor on Wednesday and they insisted on sending the documents to the respondent, alleging it must come from them as they are representing me.

 

I received an email from the solicitor yesterday afternoon stating they had not been able to match the documents and therefore they had not been sent. They requested I send the documents I have to them and they will forward to the respondent.

 

I am so annoyed that they waited until yesterday afternoon to tell me they had not sent the documents, thereby preaching the court order to disclose by 7th. Can I hold them legally responsible if I am found to be in breach of the court order?

 

Secondly, should I now send the documents directly to the respondent straight away and explain the reason for the delay?

 

Many thanks

DJ

[Pusillanimous]

Don't worry, the tribunal are very flexible about this type of thing. You won't get hauled before the judge to explain yourself, or anything like that. One or two days late is no big problem. Just send an email copied to the judge apologising it will be slightly late due to circumstances beyond your control.

[dj1971]

Thanks Pus,

 

Respondent solicitor accepted it was an oversight and I got the documents sent to them yesterday.

 

I have been going through the documents and discovered they have not provided minutes or a record of most of the meeting during my grievance and appeal.

 

Is it compulsory that meetings held in relation to a formal grievance and appeal are recorded or minuted?

 

DJ

[dj1971]

Bump

 

Anyone able to advise if meetings need to be minuted when related to a formal grievance or appeal?

 

DJ

[Pusillanimous]

 

Is it compulsory that meetings held in relation to a formal grievance and appeal are recorded or minuted?

 

DJ

 

There is no statute that says this, and ACAS procedures, are no longer mandatory, so no, is the short answer. However, most firms would keep a record and documentation if only to cover their own backs! The tribunal might be surprised.

 

Always take your own notes whenever you go to a meeting and later send a copy to the other person, so that there is a record on file of your view of events. Did you not take any notes, yourself, or have a witness?

[dj1971]

Thanks Pus,

 

These are not meetings at which I was present. They were meetings between investigating manager and my former manager, hr manager etc.

 

DJ

[Pusillanimous]

I would recommend you write to the tribual advising that these notes are still missing and to request an application for another disclosure order, as they are vital to the hearing.

 

They will have to explain to the tribunal the reason for disobeying the order.

[dj1971]

I have had a response from the respondent solicitor confirming no record was taken of those meetings. Rather slap dash of them.

 

Have another matter I need some help with please.

 

At the PHR my counsel advised I should change my claim of failure to make reasonable adjustments to one of direct disability discrimination. I agreed and she presented it not as a new claim, but as a relabelling exercise and the judge ordered we make an application in writing within 1 week. This was done and the respondent wrote objecting to the amendment and applying for costs in defending the claim of failure to make reasonable adjustments.

 

Today I have received correspondence from the tribunal requesting that "claimant to provide a specific draft of the proposed amendment if such is available." I don't understand what I am being asked for, anyone care to explain please?

 

DJ

[Pusillanimous]

DJ1971 They are asking for a copy of your ET1 claim in its new form with the new wording. It might be worth asking your counsel if arguing in the alternative would be a good idea (i.e., submit both).

[dj1971]

Sorry Pus,

 

I don't understand what you mean by the ET1 claim in its new form with the new wording.

 

Unfortunately I am no longer represented, could not afford the huge costs past the PHR.

 

DJ

[Pusillanimous]

Redraft your original claim so that it includes the amendment. I would recomend arguing both, one in the alternative, and also indirect discrimination as a third option. As the other party have applied for costs because you are changing it, best leave it in. Or, if you feel you cannot adequately describe the RA needed (the risk assessment) then best to drop it, the earlier the better. Re the cost threat explain to the tribunal that you are an unrepresented claimant and did not know better until your counsel advised you .

[dj1971]

Thanks Pus,

 

So the judge is asking me to rewrite my ET1 to include the claim for direct disability discrimination?

 

The thing is my original et1 includes the claim for direct disability discrimination, but up until the PHR it had been labelled failure to make reasonable adjustments, thus counsels argument that this is simply a relabelling exercise and not a new claim.

 

DJ

[dj1971]

HI Guys,

 

Just a quick update.

 

I did respond to the judges' request by pointing out that the claim for direct discrimination was already pleaded in the original ET1. Have not received any further correspondence with regards to this.

 

I have completed the second draft of my witness statement but am a bit concerned that it is 37 pages long with 10,000 words. However I have been through it again and again and cannot see how I can cut anymore off it without leaving out key points.

 

Following extensive research I came to learn that it is possible for a member of the public to instruct a barrister directly without the need for having involvement from a solicitor, thereby greatly reducing costs. It is important to say though that not every case is suitable for the "direct access" scheme and also that not all barristers are able to accept instructions through the scheme.

 

Anyway I contacted quite a few chambers and have secured a barrister who has reviewed my case and agreed to provide direct access representation. The amount of savings in legal costs is very substantial and I am very much more at ease now having secured representation for both preparation of the case and at the full merits hearing.

 

A quick question, does anyone know if the respondents witnesses are allowed into the court room before they give their evidence? I know they cannot in a criminal case, but wondered if the same applies at an employment tribunal?

 

Many thanks

DJ

[dj1971]

Bump!

 

Anyone able to answer the question about witnesses ?

 

DJ

[Callaghanclown]

Yes they can be there for the whole thing. Anyone can attend.

[dj1971]

Surely that is unfair, as they could amend their evidence according to how I present mine, assuming the claimant goes first.

 

DJ

[Callaghanclown]

The respondents witness statements will already have been submitted and can not be changed. As long as you ask questions, referring to the written submissions, they will not be able to change their story. If they do, ask them the question "why does your witness statement say x when you have just said y"

[dj1971]

I need some help please guys.

 

On 3rd March I sent some documents to the respondents solicitor requesting that they be added to the final bundle, due for release tomorrow. Unfortunately I did not realise that two of the documents had not been disclosed by the respondent and in fact the only reason I had them was I had forwarded them to myself while I was still employed by the respondent.

 

They have picked up on this and are treating it as a breach of confidentiality and asked me to sign an undertaking to disclose all confidential documents I had sent to myself (there were only these two) to permanently delete those documents from my computer, email etc and to grant with reasonable notice access to my laptop and personal email address so the respondent can ensure all confidential documents have been permanently deleted.

 

I did disclose the two documents and confirmed they had been permanently deleted, but refused to grant them access to my laptop or personal email. The respondent has come back to me threatening to get a high court order to disclose the laptop and email if I do not sign the undertaking to grant them access.

 

They are also claiming that sending the documents to myself amounts to breach of confidentiality, the implied term of faithful and loyal service, the implied term of trust and confidence and that my claims will not succeed because they would have sacked me anyway for gross misconduct. The respondents solicitor then goes on to request that I withdraw all claims against their client by Friday 15th March or else they will pursue me for their costs.

 

I realise their threat of costs means little, but have I completely blown the case?

 

DJ

[Pusillanimous]

DJ This is just another standard tactic. It is very important that you do not sign the undertaking. Send them a short letter denying any wrongdoing, and then forget about it. Otherwise, once you start engaging with them, there will be no end to it, so don't even start.

[dj1971]

Thanks Pus,

 

I have no intention of signing their undertaking. It is an absurd request to ask me to allow them access to my laptop and personal email.

 

So something along the lines of further to your letter dated 12th March I have already permanently deleted from my possession all document referred to and have no intention of granting your client access to either my laptop or personal email. Neither shall I be withdrawing any of my claims against your client.

 

I have also received a letter from the ET today informing me of a CMD that has been listed for next Wednesday to decide whether or not to allow my amendment of claim from failure to make reasonable adjustments to direct disability discrimination which has me confused a bit. You may remember the counsel representing me at the PHR (who is no longer representing me) decided my claim should be amended and the judge ordered that an application be submitted in writing.

 

This was done and then the judge asked for a copy of the redrafted ET1 and I responded to the judge that it was not necessary to redraft the ET1 because the claim for direct disability discrimination was already pleaded in my original ET1. Respondent replied by letter stating that the amended claim was out of time and now the judge has listed the amendment of claim for a CMD next week.

 

Of course the respondent have submitted a response to the CMD listing, claiming that there is no need to hold a further CMD as the application to amend should be decided on the written evidence.

 

DJ

[dj1971]

Bump!

 

Is the paragraph above an adequate response?

 

Also is the sending of "confidential" documents to my personal email address just before I resigned and claimed constructive dismissal really not grounds for gross misconduct and therefore dismissal?

 

Respondent has requested a response by 4pm today, any feedback/advice really appreciated.

 

DJ

[dj1971]

Hi All,

 

Really could use some advice.

 

One of the claims that I had originally submitted was one of failure to make reasonable adjustments. My argument was that the respondent did not have any policy in place that after x number of sickness absences the staff member would be sent for a risk assessment/occupational health assessment.

 

The just before the PHR in January the respondent disclosed among their documents such a policy that says any absence for "mental illness" should be referred for additional support. So my barrister submitted an application to amend the claim to one of direct disability discrimination.

 

Have now got a new barrister and what I am struggling to explain to them is the comparator. I do get that this can be a hypothetical comparator and should in all considerations be not materially different from me with the exception of my mental health condition.

 

My question is, where the direct discrimination has occurred from the respondents breach of their own policy, is a comparator really necessary?

 

Any advice/suggestions gratefully received.

 

DJ