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    • Hi @BankFodder
      Sorry for only updating you now, but after your guidance with submitting the claim it was pretty straight forward and I didn't want to unnecessarily waste your time. Especially with this guide you wrote here, so many thanks for that
      So I issued the claim on day 15 and they requested more time to respond.
      They took until the last day to respond and denied the claim, unsurprisingly saying my contract was with Packlink and not with them.
       
      I opted for mediation, and it played out very similarly to other people's experiences.
       
      In the first call I outlined my case, and I referred to the Contracts (Rights of Third Parties) Act 1999 as the reason to why I do in fact have a contract with them. 
       
      In the second call the mediator came back with an offer of the full amount of the phone and postage £146.93, but not the court costs. I said I was not willing to accept this and the mediator came across as a bit irritated that I would not accept this and said I should be flexible. I insisted that the law was on my side and I was willing to take them to court. The mediator went back to Hermes with what I said.
       
      In the third call the mediator said that they would offer the full amount. However, he said that Hermes still thought that I should have taken the case against Packlink instead, and that they would try to recover the court costs themselves from Packlink.
       
      To be fair to them, if Packlink wasn't based in Spain I would've made the claim against them instead. But since they are overseas and the law lets me take action against Hermes directly, it's the best way of trying to recover the money.
       
      So this is a great win. Thank you so much for your help and all of the resources available on this site. It has helped me so much especially as someone who does not know anything about making money claims.
       
      Many thanks, stay safe and have a good Christmas!
       
       
        • Thanks
    • Hermes and mediation hints. https://www.consumeractiongroup.co.uk/topic/428981-hermes-and-mediation-hints/&do=findComment&comment=5080003
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    • Hermes lost parcel.. Read more at https://www.consumeractiongroup.co.uk/topic/422615-hermes-lost-parcel/
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Just 2 days now until the cmd and I am feeling a little nervous but also looking forward to finally have the dates for full hearing which I presume will be set on Thursday.

 

I did send an email to four of my former colleagues inviting them to be witnesses at the hearing but they have come back to me and said they are not willing to do this and may in fact decide to be witnesses for the respondent. Based on this I have decided not to force the issue by applying for court orders forcing them to attend as witnesses. They even went on to say in their response if I do obtain court orders for them to attend they will not meet with me before the hearing and will not provide a witnesses statement.

 

This amazes me as these particular individuals were always complaining to other people about my former line manager and slagging him off behind his back at every opportunity. Now I provide them with an opportunity to stand up to him and expose the way he has been behaving, but instead they want to side with him.

 

So now it looks like it will be myself and my support person throughout the grievance process as witnesses at the full hearing. On the plus side my support person is an independent HR consultant, so she is well rehearsed in HR policies and procedures.

 

One more question. I have not heard from the ACAS conciliator since the end of August when the respondent made an offer to settle for £2,000 just before the previous cmd. I thought the conciliator would continue working and liaising with both parties in an attempt to reach a settlement agreement without going to a full hearing, is this not correct?

 

DJ

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They do keep working, the respondent will try to settle again later on - mine got to about a week before and 5 times what they originally offered.

 

Its not unusual for witnesses to back out or to do what they have done.

 

remember if you go to the hearing, then you will have a chance to cross-examine them.

I am not a legal professional or adviser, I am however a Law Student and very well versed areas of Employment Law. Anything I write here is purely from my own experiences! If I help, then click the star to add to my reputation :)

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Thanks Ibruk,

 

So is it unusual that I have not heard anything from the ACAS conciliator since the end of August, should I be chasing him for an update?

 

Was no real surprise to me that my former colleagues refused to appear as witnesses and actually works better for me if they do appear for the respondent as you say, I will be able to cross examine them.

 

Have just received a draft list of amended issues and agenda for the cmd on Thursday from the respondent, will have a read of it and post again if I have any questions.

 

DJ

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Morning all,

 

I have had a read through the respondents draft list of issues and proposed directions.

 

In the draft list of issues under failure to make reasonable adjustments they are proposing to seek an order that I show cause why this claim should not be struck out on the basis that it has no reasonable prospect of success.

 

The pcp I identified was the respondents failure to carry out a risk assessment following several periods of sickness absence. This put me at a substantial disadvantage over my non disabled colleagues because the respondent thereby failed to identify my line managers style of management as a major contributory factor to my depression and periods of leave. The reasonable adjustment would have been for my manager to go on a training course on how to manage people with a mental health condition.

 

How do I convince the judge that this claim does have reasonable prospects of success?

 

DJ

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It's a clear enough point. He'll either find it reasonable or not. Just be yourself.

Never assume anyone on the internet is who they say they are. Only rely on advice from insured professionals you have paid for!

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They will always challenge you on everything - what you need to do is just explain to the judge and they will make up their own mind - dont worry about acas, just leave them alone, think mine went dark for like 3 months, i just got on with writing my statement, preparing witnesses and being awkward with the respondents solicitors by asking for clarification on every point :) You'll also get the threatening letter about costs, about counter suing - ignore them too!

I am not a legal professional or adviser, I am however a Law Student and very well versed areas of Employment Law. Anything I write here is purely from my own experiences! If I help, then click the star to add to my reputation :)

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Thanks everyone for your suggestions, guidance & support.

 

Is very daunting when you read a document which states this claim has no chance of success, even though it is just the respondents opinion.

 

They are also seeking an unless order with the victimisation claims stating I have not identified how they relate to my disability of depression and/or personality disorder.

 

Then because I did not bring it up at the cmd back in September, they are going for the "it is out of time" argument, even though it was clearly argued in the ET1.

 

I suspect they are going into this cmd trying to get as many of the claims as possible thrown out and then will come back at me with a much lower offer to settle. I really don't think they have any intention of going all the way to a full hearing, or that might be just wishful thinking.

 

DJ

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You sound very capable. Try to have confidence in yourself. I wish you all the luck in the world. I withdrew my case, but feel so pleased that there are people like you who don't give in to pressure and obstacles that are put in your way. Well done already on what you have achieved by being so determined! Please let us know how you get on.

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Morning all,

 

 

The pcp I identified was the respondents failure to carry out a risk assessment following several periods of sickness absence. This put me at a substantial disadvantage over my non disabled colleagues because the respondent thereby failed to identify my line managers style of management as a major contributory factor to my depression and periods of leave. The reasonable adjustment would have been for my manager to go on a training course on how to manage people with a mental health condition.

 

How do I convince the judge that this claim does have reasonable prospects of success?

 

DJ

 

I have found some case law for you which you could quote. It is not completely similar to your case, but does touch on the issue of management style. What you need to do is to be able to say confidently, "In case XXX vs YYY 2011, the EAT decreed that management style is classed as a PCP in terms of a reasonable adjustment thereto."

 

http://www.manches.com/news-publications/disability-discrimination-reasonable-adjustments

 

Take along copies of the entire judgment (if you can find it: try BAILII) for each of the employment judge and the Respondent. Highlight the relevant paragraphs with a couple of straight lines in the margin so you can point them straight to it.

 

Take some briefing notes as to what a PCP is, and also a copy of the Equality Act, for your own reference, in case you disagree with a decision about to be made.

Edited by Pusillanimous
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Thanks Pus, that is really helpful of you, much appreciated.

 

Off to the cmd now which starts at 3pm, then going to see Andrea Bocelli tonight, be great to have the opportunity to think about something else and something I enjoy.

 

Will update tomorrow.

 

DJ

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Hi all,

 

Just a very quick update.

 

Claim for victimisation was thrown out, I admit it was very weak anyway so no concerns there.

 

Claim for reasonable adjustments, judge offered me the opportunity to either have it listed for PHR or she deal with it there and then. I opted for the PHR, much to the disgust of the respondent solicitor who insisted if I am having a PHR, then they want one too for the racial harassment claim. (tantrums) So PHR will be 30th January to decide if claim for reasonable adjustments has any reasonable likelihood of success and if decided it does not, will be thrown out.

 

Technically the claim for racial harassment is out of time, will be decided at PHR if it is to be allowed.

 

Judge refused to make an unless or order, but did make an order instructing me to identify how the harassment claim was related to my disability. Have to provide that within two weeks.

 

Both parties must decide within one week whether they are willing to participate in judicial mediation.

 

Judge was very fair and consistant, taking the time to explain and make sure I understood everything that was going on or being said by the respondent.

 

A good day all things considered.

 

Was surprised that my former manager turned up at the cmd along with the new HR manager.

 

Off now to see Andrea Bocelli.

 

Thanks everyone for your kind messages of support and encouragement.

 

DJ

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Heheh, a judge being nice, is not usually a good sign ;) A PHR is not really good news as they can now throw out your case with hardly any of the evidence looked at, or a deposit asked for. Should it be struck out, the respondents might apply for costs.

 

I would recommend you try to find free representation or pro bono assistance for the PHR. After the recent changes, I am not sure if you able to get this via the CAB any longer.

 

Your work colleagues will have been ordered to do a witness statement against you (it can be a disciplinary offence if they refuse) so don't take it too personally. Your boss and HR will turn up, in order to report back, and is part of their duties.

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The PHR is only to decide two aspects of the case Pus.

 

1) Reasonable adjustments - the respondent allege this has no real prospect of success.

 

2) Racial harassment - technically it is out of time as was only 1 incident that happened on 18th March, I did not submit my ET1 until 28th June. So PHR is to decide whether the judge will allow it to be pleaded anyway.

 

The alternative to the PHR was that the judge make a ruling on it today with no evidence available, so I do not agree the PHR is not a good thing. My understanding is at the PHR I will be given the opportunity to put forward my case along with evidence and the judge will make a decision.

 

DJ

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Re the claim for disability harassment, I have been asked to demonstrate how it is linked to my disability of depression and/or personality disorder.

 

My take on it is my former manager spoke to me in a raised and aggressive tone of voice with the intention of violating my dignity and creating an intimidating, hostile and humiliating environment for me because he knew the symptoms of my depression include, physical tremors, shaky voice and panic attacks.

 

Appreciate any feedback/comments.

 

DJ

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Never actually spoke to my former manager directly about it, but the physical symptoms were glaringly obvious for everyone to see.

 

I did tell his manager and the HR representative during my appeal hearing, but they concluded he had done nothing wrong.

 

DJ

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If the respondents requested the PHR, then the victory is theirs? Have you had any part of your claim accepted as going forward to a full hearing? Problem is, "Pre Hearing Review" is really a euphemism for "strike out" hearing. Although you will need your full set of bundle, even if you come through it OK, you will then need to go through it all over again at a full hearing. On the plus side, as you are claiming discrimination, you will be able to present your discrimination evidence on the day.

 

Any Caggers here who triumphed at a PHR in a disability case? Words of hope needed!

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Pus,

 

It was I who requested the PHR not the respondent, they wanted the reasonable adjustments claim thrown out there and then.

 

Going straight through to a full hearing in April/May next year is the claim for constructive dismissal & disability harassment, although I do have to indicate how the harassment claim relates to my disability of depression/personality disorder.

 

As above this is I believe:

 

My former manager spoke to me in a raised and aggressive tone of voice in the full knowledge of the effect this would have on me as the symptoms of my depression/personality disorder were self evident (significant hand tremors, panic attacks & shakey voice)

 

DJ

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