Constructive dismissal? - ** SETTLED **

[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

[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

[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

[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?

[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

[dj1971]

Thanks HB.

 

Had no idea when I started this process how stressful it would be, but we almost at the end now. Full merits hearing is scheduled for 26th April - 02nd May 2013, so lots to do in a short space of time.

 

DJ

[dj1971]

I want to get back to work once all this is over and done with, get back on track and on with the rest of my life.

 

But yes you are correct, until I find a new job I won't know what to do with myself.

 

DJ

[dj1971]

Thanks Pus,

 

Is a minor irritation.

 

Some fantastic news though. I was speaking to one of my former colleagues yesterday and have found an actual comparator for my direct disability discrimination claim.

 

This colleague does not have a disability and went on sick leave for two months. They were forced to go for a risk assessment to assess for reasonable adjustments before being allowed to return to work.

 

DJ

[dj1971]

Unfortunately they are not willing to be a witness and I would never try to pressure them.

 

The comparator is enough.

 

DJ

[dj1971]

Hi All,

 

A quick question please.

 

I have completed my witness statement and want to add a reference to certain documents in the bundle eg. It is my submission that by failing to follow the unplanned leave policy my manager did directly discriminate against me. I want to add a page reference here to the unplanned leave policy in the bundle, how should I present that?

 

DJ

[dj1971]

Bump!

 

Anyone able to offer any help?

 

DJ

[dj1971]

Hi All,

 

Just a quick update to say that I have reached a settlement agreement with the respondent.

 

Obviously I cannot disclose the amount or terms of the agreement, but they offered the figure I had always said right from the beginning if they offer this amount I will settle. The COT3 agreement was drawn up by ACAS.

 

Finally after twelve months the war is over and I can start to put this whole experience behind me and start moving forward with the rest of my life. Wife and I have booked a very nice holiday for ourselves in a couple of weeks time to celebrate and a bit of R&R.

 

A huge thank you to everyone who believed in me and supported me along the way. There is absolutely no way I could have come this far without use. I will continue to pop in from time to time and offer some experience where I can. This is a really important resource for people and I would love to be able to contribute and give something back.

 

Best Wishes

DJ

[dj1971]

Thanks Emmzzi,

 

IS such a huge relief and a big weight off my mind, I had become obsessed with this letting everything else fall by the wayside.

 

Big thank you to you

DJ

[dj1971]

Thanks Rightforme,

 

It was a long hard slog, but so worth it in the end.

 

Hope everything works out with your claim. It will get rough and at times you may even feel like giving up, but stick with it and use the forum here. I know I could never have got through it without the fantastic people on here.

 

Thanks to jackieandwayne also.

 

DJ

[dj1971]

Hi All,

 

I really thought this case was over and done with, but unfortunately the respondent has not paid the agreed settlement within the 21 days time frame as per the COT3.

 

What are my options now?

 

DJ

[dj1971]

Hi Billy,

 

Completely forgot to update the thread.

 

Yes I contacted the respondents solicitor and they sent payment by courier that evening.

 

Thanks

DJ

[dj1971]

Hi AGY,

 

Really glad that you are able to get something from my experience and that is the whole reason for this excellent site. By sharing our experience we are able to help others who find themselves in the same horrific position can learn so much more. I too had a lot of help from the members on here while I was going through my experience and without question I could never have got through the nightmare without the fellow members of this site as I did not have any legal representation until near the very end.

 

Yes they have the right to go through your email address as it is on their server and therefore belongs to them and you can bet your bottom dollar they will have gone through it with a fine tooth comb.

 

Unfortunately this is not how they found out though. It was through my own carelessness at the disclosure of bundle stage I included the emails in my bundle. Looking back now I was under so much stress as the respondent were trying every trick in the book to get me to drop the case, or have it thrown out of court.

 

I hope never to have to go through all of that again and would definitely tell anyone now going through it to have a solicitor go through the bundle if at all possible. Even if that is all you have them do, they are experienced and much more knowledgeable about what does and does not have to be disclosed.

[dj1971]

Thanks Billyboy,

 

I could not have done it without the unending support and guidance from fellow caggers like yourself.

 

I was over the moon about the outcome and although I did not get my day in court, this was the best possible outcome and the compensation was what I had said I would settle for at the very beginning.

 

Believe me I had a big bonfire in the garden a few days later and it felt so good destroy all the evidence.

 

Once again a big thank you. Without people like yourself this site would not be the raging success that it is.

 

 

Best Wishes

DJ

[dj1971]

Hi All,

 

Although this case has been settled through negotiations via ACAS back in April 2013 I have a question on which I would like to hear others experience and any suggestions that can be offered.

 

Part of the agreed settlement was that my former employer would provide upon request a reference to any prospective employer. The exact content of the reference was also agreed as part of the settlement agreement.

 

However I am having quite some difficulty in finding new emplyment, although I accept that is not unusual in the current economic climate. However I have registered with a couple of agencies and even been interviewed for a couple of positions, all good so far. The stumbling block seems to come when I am asked for references and of course put my previous employer, after that I hear nothing more. Get all sorts of excuses like we have no vacancies at the moment, or the employer has withdrawn the vacancy and decided not to recruit, or they have decided to recruit internally.

 

I have a very strong suspicion that my previous employer is giving a reference different to the one agreed in the settlement agreement and worse still I think she is giving it verbally over the telephone, so no trace of paperwork or anything.

 

Has anyone else had experience of this? Anyone have any suggestions on what I could do?

 

Is really getting me down that I still have not found a new job and if as I suspect the previous employer is not playing as agreed, this is completely unfair and surely voids the settlement agreement?

 

Appreciate any suggestions, help or advice anyone can offer.

 

 

Many thanks

DJ

[dj1971]

Anyone?

[dj1971]

Thanks Emmzi,

 

I do have a friend who is Financial Controller of a company and could write a reference request. My only concern is if it came back they have broken the agreement, would I have to reveal where I had obtained the reference from and would there be any consequences for my friend?

 

DJ

[dj1971]

I was afraid you were going to say that.

 

I did register with 3 different agencies who all asked for a reference from my previous employer and then heard nothing more from the agencies, no job offers and they will not respond to my communications. So I have sent a SAR to all 3.

 

It is a real shot it the dark that anything will show up on the SAR, but I am at a loss to know what else to do.

 

Thanks

DJ

[dj1971]

I know that they never reply when you submit an application for a position they have advertised, but this is different in that I have registered with them and they are not contacting me with any opportunities.

 

One of the agencies had actually contacted me and asked me to apply for a vacancy they were recruiting for. The agent really liked my cv and sent an application form which I completed and returned to them. He contacted me a couple of days later saying he was very impressed with my application and was confident he could get me an interview, we even met to go through my interview skills. Then nothing..........

 

I left it for a few days and then contacted him but he is not taking my calls or responding to my emails.

 

Am convinced my former employer is providing negative feedback on me and is therefore in breach of the settlement agreement. Will just have to wait for the SAR's to come back and see what they bring up.

 

DJ