Constructive dismissal? - ** SETTLED **

[dj1971]

Bump!

 

Could really use some help her guys.

 

Also respondent has informed me today they will be submitting an application to amend their ET1 at the forthcoming CMD because had they known about the confidential documentation I would have been dismissed.

 

DJ

[Emmzzi]

I am probably struggling with us giving any better advice than a barrister who has all of your notes?

[dj1971]

Thanks Emmzzi,

 

Unfortunately my new barrister is instructed under the direct access scheme and is therefore very much restricted on what they can do. Basically they cannot do anything a solicitor would normally do.

 

DJ

[Emmzzi]

oh, sorry to hear that!

 

Well, whether sending stuff to home email is GMC depends on a) IT policy and b) evidence you had been briefed on IT policy.

[Pusillanimous]

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

 

Personally, I don't think you should have told them you've deleted it from your laptop as that's equivalent to admitting you did it. It is all a red herring, so avoid engaging with the other party about it any further. They have no grounds for getting a High Court Order. They will be laughed at.

[Pusillanimous]

Hi All,

 

Really could use some advice.

 

 

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

 

Under the new Equality Act, you do not need a comparator. I would suggest rereading the Act. Under indirect discrimination the comparator would be those without your condition (whether you are disadvantaged compared to them). This can be hypothetical.

[Pusillanimous]

I need some help please guys.

 

 

 

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

 

This is nonsense. Even if it were true, you could still technically succeed in your claim as it relates to something completely different. At worst, they could perhaps argue a reduction in your award. It depends how likely they can argue you were about to be sacked. I am sceptical that your emailing yourself something is automatically confidential. It has to fulfil confidentiality criteria.

[dj1971]

Thanks Emmzzi,

 

The respondent are relying on a confidentiality clause contained in my contract of employment. It basically says:

 

"For the purpose of this clause, confidential information means all information in any form or medium relating to past, present or future operations or affairs of ABC Ltd .......... The employee must not use, disclose or copy any confidential information relating to the company or any of it's customers, except in the proper performance of the employees duties."

 

I think they have me on this one, but fail to see how they suggest they would have known about me having sent a document to my personal address, if I had not been careless enough to disclose it to them in an email chain of documents.

 

They are applying to amend their ET3 anyway, so we will see what the judge says at the CMD.

 

DJ

[dj1971]

Thanks Pus,

 

Well obviously I did not give in to their threat by withdrawing my claims by 15th March, wonder if they really thought I would.

 

I did not have any choice but to admit I am guilty, because of a stupid mistake I actually sent them the email I had sent to myself with their documents. However we are not talking about classified information or anything of the kind, it basically was a list of outstanding balances owed to my former employer from one of their creditors. I had emailed it to myself just before I left as evidence of the extent of the work I had done to recover the outstanding balance in full.

 

They are still making a big song and dance about it and quite frankly I am inclined to agree with you Pus and not get drawn into any further communication with them on the issue. They have declared their intent to apply to amend their ET3 at the next CMD (which they have objected to saying it is not needed) and will let the judge make the decisions.

 

Have I understood you correctly Pus, that there is no need for a comparator in a direct disability discrimination case?

 

DJ

[steampowered]

I don't think the confidentiality clause helps them. The purpose of a confidentiality clause is to stop you disclosing things to third parties. It is not obvious to me why emailing documents to yourself is a breach of confidentiality. Emailing documents to yourself is not disclosing or copying the information. It could well be a breach of your employmer's IT policy if one exists, certainly my employer says you should not email documents to yourself as they cannot ensure the documents remain secure - but even if there is such a policy I very much doubt this would be GMC.

 

I would simply write back saying these are the only two documents you have, confirm they have been permanently deleted, state they have never been revealed to any third party (and briefly explain why they were sent to your personal email if appropriate) and deny there was a breach of the confidentiality clause. If they should have disclosed these documents already then mention it appears they have not complied with their disclosure obligations.

[dj1971]

Thanks steampowered,

 

I believe there is an IT policy but do not have access to a copy, maybe I should go back and ask them for a copy?

 

I realise they are really clutching at straws and this is not the most serious of cases as I did not disclose the documents to any third party and the documents would never have had any real value even if I had.

 

The next CMD has been listed for next Monday 25th at 10am to decide my application to amend the claim of failure to provide reasonable adjustments to one of direct disability discrimination. The respondent has indicated that they will be submitting an application to amend their ET3 at the CMD. Their amendments will be :

 

1) Had the respondent found out about my taking of their confidential information this would have lead to my summary dismissal and/or

 

2) I would have been summarily dismissed for failing to give an undertaking in reasonable terms which would have caused a breakdown in trust and confidence and/or

 

3) It would not be just and equitable for you to recover compensation for your wrong doing aggravated by your refusal to undertake a proper undertaking relating to documents. (referring to my refusal to sign an undertaking that I will give the respondent access to my laptop and personal email address, presumably to see if I have taken any other documents.)

 

DJ

[Pusillanimous]

However we are not talking about classified information or anything of the kind, it basically was a list of outstanding balances owed to my former employer from one of their creditors. I had emailed it to myself just before I left as evidence of the extent of the work I had done to recover the outstanding balance in full.

 

 

Have I understood you correctly Pus, that there is no need for a comparator in a direct disability discrimination case?

 

DJ

 

The creditor balances would count as confidential. Showing that you recovered balances outstanding is unlikely to prove anything, as that was what you were paid for.

 

I would focus on getting your ET1 straight because you don't have any control over whether they amend their ET3.

 

The comparator issue is something I read in case law somewhere. Perhaps a Disabilty Discrimination expert in the forum can comment on this.

[Pusillanimous]

I would simply write back saying these are the only two documents you have, confirm they have been permanently deleted, state they have never been revealed to any third party (and briefly explain why they were sent to your personal email if appropriate) and deny there was a breach of the confidentiality clause. If they should have disclosed these documents already then mention it appears they have not complied with their disclosure obligations.

 

Sound like good advice, given the circumstances! The confidentiality clause was breached so dj1971 may as well put his hand up to it. Ignorance is not an excuse, but it is a better plea than trying to wriggle out of it (think, Huhne and Pryce).

[dj1971]

A quick question please,

 

Can anyone clarify whether a comparator is needed for a direct disability discrimination claim please, I am getting conflicting stories.

 

 

DJ

[Pusillanimous]

Dj1975 sorry, it appears the situation with comparators is the same in the Equality Act 2010, as in the DDA before. However, there is no longer any need for comparators in respect of victimisation (in the legal sense of the word). Not sure you need a comparator for a reasonable adjustment claim.

 

I am sure I read somewhere that thribunals are less hung up on "comparators" than they were before.

[dj1971]

Ok, a comparator is needed in a claim of direct disability discrimination.

 

The respondent have doubled their offer to settle on a commercial basis due to increasing legal fees, but it is still not enough for me to settle and anyway I want to get them in court. There are so many inconsistencies in their evidence and they have even forged documents after the event.

 

Could really use some help though with the direct disability discrimination claim though, as that is the main topic for the cmd on Monday.

 

So their policy says manager is responsible for managing unplanned leave and should always be alert to signs special assistance may be necessary. One of the red flags for special assistance in the policy is any leave for a mental health condition. I had five separate periods of leave due to depression and anxiety, but my former manager never referred me for any special assistance.

 

My claim is that this was because of my mental health condition. The policy also identifies a further trigger of the possible need for special assistance as more than five separate periods of leave in a 12 month period.

 

So my comparator would be a male employee having been working in the companies finance team for eighteen months who does not have a mental health condition would have been referred to occupational health following the sixth period of annual leave within a twelve month period.

 

Have I got this right?

 

DJ

[Pusillanimous]

So my comparator would be a male employee having been working in the companies finance team for eighteen months who does not have a mental health condition would have been referred to occupational health following the sixth period of annual leave within a twelve month period.

 

Have I got this right?

 

DJ

 

By all accounts it is very important to get the comparator right. What you describe sounds more like indirect discrimination ( = a group not with your condition). This is only my opinion but you should try brainstorming to get to the crux of where the discrimnation lies. I would suggest perhaps, a direct discrimination comparator woud be some without a disability who would not have had to need leave connected to that disability. Or, that you should have been red-flagged but were not because of your condition.

 

It looks as though the policy you have stumbled across is key to the whole issue. They should have red-flagged as in their own policy, but did not. The onus will now be on them to prove they did not discriminate.

 

Don't get distracted by petty squabbles about what you e-mailed to yourself.

[dj1971]

Excellent,

 

Thanks Pus.

 

The document in question they did not disclose under normal procedure, I just happened to email them asking for a copy of their leave policy and they sent it through.

 

That is exactly my point, I should have been red flagged on five separate occasions and was not because my condition was depression and my former manager had said to me when I told him about my condition, "I know a lot of managers do not believe depression is a real illness, but I am not one of them" and then smiled at me.

 

This policy is key, they did not follow their own policy.

 

They have submitted their application to amend their grounds of resistance to be heard at the cmd on Monday next. Will see what the judge has to say then.

 

I don't see how you conclude my comparator of someone without depression would have been red flagged after six separate absences in a 12 month period is indirect discrimination though. Can you explain please?

 

DJ

[Pusillanimous]

Indirect discrimination is looking at people as a group; direct is against the person. Care needed because normally sick leave can be a capability issue. If you are off sick because of an underlying disability, you should not be subjected to sick leave warnings in the same way that a non-disabled person might be. For example, an epileptic might breach the sick leave limit because of his or her illness, which would not be fair compared to a person without any disability and that could give rise to more sick leave than their peers.

 

Are you sure that a person without depression at your last workplace would have been red-flagged for special assistance after six absences?

 

The thing to remember is that these policies are drawn up by lawyers. So, if there is a policy that says mental illness issues should be treated in a special way, then it is a clear indication of discrimination if this rule has been ignored. They need to have a good explanation for it. If you argue that nobody at all was red-flagged then you are not showing the reason as being your disability. You need to find out whether they red-flagged any other staff with depression in their history. If the red-flagging only applies to "mental illness" then it is irrelevant that a non-mentally ill person was not red-flagged either? Or were they?

 

So you need to argue that the driver of the discrimination is, that had you not had an underlying disability of mental illness you would not have needed to have six absences in the first place, for them to ignore their own risk assessment policy and cause you personal injury in so negligently doing. You do not need to ascribe motive, so try not to second guess what your boss's motive was, as you might shoot yourself in the foot, as he is bound to deny it and claim it was something else. You are not required to show ill will, just that the discrimination happened.

[dj1971]

Thanks Pus.

 

Yes the policy definitely says anyone with more than six absences in a twelve month period should be red flagged for special assistance.

 

So the fact that someone who did not have a mental illness but otherwise identical to my circumstances who hypothetically had more than six separate absences and was red flagged, that would show direct discrimination?

 

DJ

[Pusillanimous]

I would suggest you compose an interrogatory and apply to the tribunal to have the respondent answer your questions as to how others were treated, backed up by documentary proof (with the names redacted if necessary).

 

The way I see it, "special assistance" seems to be a euphemism for "disciplined"! However, I understand that your bosses mean "risk-assessed".

[dj1971]

Evening all,

 

I have the CMD to decide my application to amend the discrimination claim from failure to make reasonable adjustments, to one of direct disability discrimination. Am as confident as I can be with this and it will be the judge's decision tomorrow.

 

The respondent have also submitted an application to amend their grounds of resistance in relation to the discovery that I had forwarded two emails and a financial settlement agreement to my personal email address and that of my wife, roughly one month before I resigned and claimed constructive dismissal.

 

They are relying on a confidentiality clause in the contract of employment and say had they known at the time I would have been summarily dismissed for gross misconduct, but no where in the employment contract does the forwarding of "confidential information" amounts to gross misconduct.

 

I know Emmzzi you said it all depends on what is in the IT policy, which I have asked for a copy of but as yet have not received.

 

Can anyone offer some assistance with the respondents application to amend?

 

 

Thanks

DJ

 

PS. The respondent is controlling the full merits hearing bundle and being obstructive by rejecting every document or piece of evidence I ask to be included in the final bundle. They add new documents as and when they see fit, but have rejected every single document I have requested be added.

 

As we are in court tomorrow, what would be the proper way to deal with this?

[Pusillanimous]

What they are trying to do is to say that you engineered the "constructive dismissal". Not wise to argue that it is is not in your employment contract, as it will be implicit in your terms in respect of "fidelity" and "trust".

 

Regarding the bundle, you need to go along to it with an application for an order to disclose documents, and to also for them to agree the bundle with you.

 

Stay focused on the risk assessment.

[dj1971]

Thanks Pus,

 

A brief outline of events this morning at the PHR.

 

The judge granted my application to amend my claim if disability discrimination from failure to make reasonable adjustments, to one of direct disability discrimination.

 

He also granted the respondents application to amend their grounds of resistance with regards to the documents I disclosed to myself and my wife.

 

There is to be no changes to the bundle and anything I want included that is not I will have to put in a secondary bundle. So annoyed about this one as he has effectively condoned the respondents attempts to control the bundle.

 

I felt the judge was very biased in favour of the respondent, but nothing I can do about it now. Must remain focused on the direct disability discrimination claim and my former managers failure to send me for a risk assessment, which technically is out of time.

 

Onwards and upwards.

 

DJ

[honeybee13]

Hello there.

 

Thank you for the update and well done this morning. Staying focussed sounds like a good plan to me.

 

HB