Constructive dismissal? - ** SETTLED **

[dj1971]

Hi All,

 

Really amazes me how much time these solicitors have to waste.

 

I have received a number of letters today from the respondents solicitor in relation to the PHR on Wednesday.

 

First one says if the tribunal does not throw the case for failure to make reasonable adjustment & disability harassment, they will make an application for an order that I pay a deposit to allow the claim to continue as it has no reasonable prospects of success.

 

Second one says you have failed to submit a witness statement and therefore assume you will not be calling on any written or oral evidence. If you do call any evidence we will request an order for you to pay our clients costs in preparation for the PHR.

 

Third one says we accept the documents you have submitted to be added to the PHR bundle on the condition you accept the way we have renamed them.

 

Honestly the lengths these people will go to in order to try and intimidate the claimant just because s/he is not represented. But what they don't know yet is I am legally represented for the PHR. They are really annoyed that I requested their application to throw my claims out be dealt with at a PHR.

 

DJ

[dj1971]

I have discovered a forged document in the respondents bundle.

 

The document is a meeting organiser invitation to my grievance outcome hearing which has clearly been raised after the event and never sent. Should I bring this to the attention of the judge tomorrow?

 

DJ

[dj1971]

How so Pus, surely this is relevant to the credibility of the witness?

 

DJ

[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

[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

[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

[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

[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

[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

[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

[dj1971]

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

 

DJ

[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

[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

[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

[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

[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

[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

[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