ET - Race and HSE Comparators

[Gazza01]

Evening All

 

I have a question for the more knowlegable people:

 

I have resigned and claimed constructive dissmissal - the reason has been onfirmed as the three individuals - including the racist one have been found guilty of the exact reason why I resigned so its case proved there methinks.

 

I also claim racism due to the use of "not your place", and "not in our culture", and no one for the past 4 years [before, during and after the Greivance, and its Appeal], has been able to explain its use. Now someone who is acting as a go between to their Solcitors [not even sure if person asking this is legally qualified...] are demanding that I give a "comparator" for my treatment, which has got me puzzled and scratching my head. As I do not know of anybody else who I can compare myself to - I didnt work in Hr or talk to anybody else there how can I supply what is being demanded?

 

I also due to health issues put in a disablity claim, same thing there.

 

Reason why I'm asking is that I have a PHR in a couple of days - the main 6 day hearing is due in a couple of months or so.

 

Can anybody give me a bit of insight here considerng the above?

 

Oh, forgot to mention I am doing this on my own, as apparently as solicitors thought the constructive was unprovable, they thought I would get less than the mminum amount so none were interested in taking this up.

 

Kind Regards

[Emmzzi]

How have they been found guilty? "Found guilty" by whom and how? Was it an internal grievance, if so when was it settled, what steps were to be put in place, and when did you leave? "Not in our culture" may be valid, depends on context. I think you'll need more than that to go on.

 

If you are claiming work had MADE you disabled then that is generally a claim against their insurance not an ET. Is that what you are saying?

 

Currently I am with the solicitors but that's probably because you haven't given us enough information to go on. Detail, please! It's always in the detail.

[becky2585]

Hi

 

OP, if you're going to self represent then I would recommend getting to know the ins and outs of the law of what you're claiming.

 

A comparator is required for many types of discrimination claim. In direct discrimination, you need to show that there is someone who is in substantially the same circumstances as you but who doesn't share the protected characteristic. Preferably someone who was treated better than you!

[Gazza01]

Hiya all thanks for responding.

 

I lay out a breif decription of the situation below:

 

Issue was Benchmarking of staff - ie a star chamber of managers brought together to evaluate a individuals annual report done by the line manager and countersigning officer [individuals direct managers]. Policy/Procedures used consisted of single sheet. Policy/Procedures not linked to general reporting process or anything else for that matter. When made aware of change from being annouynous, I contacted Union to verify had been run by them - it had not. Email explanation was gibberish. In Fact during walk around breif to staff after concerns registered, persons responsible for change stated did not need to contact union due to significant change they had implemented. Policy used here was out of date as changed significantly this year. no clear appeals process - nothing ever given to staff affected. Data refering to staff was last year annoumous - changed this year so managers know who it is thereby in my case allowing easy vicimisation, and by the same token easy rewarding of favourites.

 

Last year manager who at that time was countersigning officer who I had greviance against, unilatreraly downgraded report after last years benchmarking refused to downgrade it [after I received a deteriment not listed during disiplinary procedure so should have been dismissed]. Same thing happened again this year but this time via the benchmarking process thanks to the change. Of course after what happened last year I knew exactly what was going to happen this year after he and other senior managers ordered that change to the policy/procedures.

 

Individuals were unable when challenged to justify or explan actions in any form. New CEO found them guilty of Abuse of Power via internal grievance investigation - I had by that time left that employment - but the ongong annual report process was suspended by CEO for this investigation.

 

 

Collapsed due to work related stress. Last year I found out I suffered from a disability. no support ever given/offered by HR. Did put in complaint abut stress being put under qouting relevant HSE regulations - complaint dismissed out of hand by the old CEO who 'consulted' with HR Head the person who the complaint was against.

[Emmzzi]

So I think to summarise, you are claiming CD because the appraisal system was unfair to you reflected in

a) you receiving higher ratings when it was anonymised and based on data alone

b) you being the only person of a specific ethnicity

c) other ethnicity related slurs

 

This also placed stress on you to the point where you were unwell.

 

Is that a fair summary of events?

 

In addition, you advised your employer you had a disability and - what? Did you suggest adjustments you needed? Did they refer you to Occ Health?

[Gazza01]

>Hi

>

>So I think to summarise, you are claiming CD because the appraisal system was unfair to you reflected in

>

>a) you receiving higher ratings when it was anonymised and based on data alone

 

correct

 

>b) you being the only person of a specific ethnicity

 

only myself and someone else's report were outstanding at the time this occured. I and that person are Non-white. All other persons reports [some not even going through process, but said to have been] done in March this year - my report dragged out to June.

 

>c) other ethnicity related slurs

 

Other than the phrases used back at the beginning as I detail above no.

 

>This also placed stress on you to the point where you were unwell.

 

Collapse occured early last year, saw doctor after hospital visit and other visits and explained stress being put under at work.

 

>Is that a fair summary of events?

>

>In addition, you advised your employer you had a disability and - what? Did you suggest adjustments you needed? Did they refer you to Occ Health?

 

Had ATOS referral just before I left, due to another health issue in addition to one that put me in hospital ATOS said both would be classed as disability as conditions lasts longer than a year. employer was informed of other disablity when I started job [basically a broken neck limiting me on certain things I could do]. line manager had to sort out ATOS process and implement it, advising HR on what to do. Zero contact or anythiing from HR at all stages.

[Emmzzi]

I've got to be honest and say I think your racial discrimination case is weak. However your comparator is basically the other workers, and you would need the employer to disclose appraisal ratings for both years for staff - not with names but they could list ethnicity. A smart employer would then argue attitude or some other factor that brought your score down. I am not saying what happened to you didn't - I am saying proving it to reasonable probability is tough.

 

HR ultimately don't have the responsibility for implementing adjustments at work - they are there to advise your managers on how to stay legal, not look after you. (We are a hard hearted bunch.) What adjustments did Occ health suggest? What did you specifically ask for that was not granted? How did you describe to your employer how your neck injury affected you, and do you have evidence of any of the above?

 

An ET can't make a decision based on which side they think is lying. They need evidence. So far I think you are light on that.

[Gazza01]

Hiya

 

Emmzzi and thanks. I think you are right on the HSE part. Evidence wise I am struggling to fufil the directins so suspect it is going to be dropped. A bummer afer the way I've been treated but there you are.

 

With regards to the markings - it comes down as I understand it did the employer act in a reasonable manner with the polocies/procedures. Clearly in my case it is documeted that polocies and procedure were twisted and hearsay used to justify actions. Where I [and I suspect the Judge at the CMD knew this, which is why she had it listed for a full hearing] have issues is the fact that the detriments that were used against me are have been excluded from any grievance procedure since 2009. In addition the same excluded detriment used against me is itself isn't even listed anywhere on the paper work the issued against me, nor is it in the grievance procedure itself, it was excluded in 2009 after all - they were going for Gross Misconduct before the presiding chairs substanially watered down the recomended/listed detriments.

 

I hope the above makes things a bit more clear why the decision on the abuse of power is so important. i.e., I should never have got the determinents in the first place, hearsay was used, plus managers actually twisted/broke policies and procedures to impose the grievances against me. I have docuented proof of that. Two of the three individuals I talk about above were involved in that activty.

[Emmzzi]

Why are your union not supporting you? Is it the union solicitors who think they cannot prove the case?

[Gazza01]

Emmzzi

 

No, as no longer working, could not afford to stay in union and going by past experience [have been consulted on staffing matters for others] union has been no help to anyone - in fact has been helping employer in various [local reps are okay] areas to keep things quite, plus impossible to get legal representation/advice [someone I know is still waiting for advice a year and a half later!!! Both Union rep and a solicitor we know say have very strong case].

 

Did approach a local solicitor who was said to deal with such matters, not interested due to the apparent award that might be payable, did not believe could get constructive. Tried other avenue via Contact Law, same thing happened again so being forced to do this off my own back. That's when I found out there are only handful of solicitor willing to take on these cases across whole of UK, and will only go for one where they are sure you will win. I was sure, as I knew the benchamarking stuff was critical and said so, they weren't. I was homeless [resigning + flat mate ran out of money so we had to go our seperate ways] for a period now in accomodation so unable to claim on household insurance for a solicitor.

 

One amusing thing is the head person who's been protecting these people, said was available for full ET, [delay on the forwarding of the decision on abuse was also amusing, missed two dates they set themselves. Obviously they knew it was going to have a big impact on case], is suddenly not available for the 6 dayer. I wonder why.

[Emmzzi]

Because 6 days is a hell of a long time for a senior manager to be away from the business? Sometimes it will not be about you!

 

If you were a solicitor wpould you take on cases that would take up your time where you thought there was a good chance of losing? I know I wouldn't!

 

I think this has been a false economy leaving the union if they were preared to back you. I do not see a strong case, but if you have nothing to lose, then I wish you well.

[Gazza01]

Emmzzi

 

Thanks. And I fully understand where you are coming from. The ex-head person, she said okay was able to attend for four weeks, then a decision comes in against one she was protecing and suddenly she is no longer available. Hmmmm. Regarding the Union, had no choice, could not afford the subscription while I am on the dole. And I had nothing to lose, they were going to come again with more made up stuff - so why stay and get sacked, maybe by something which they might be able to use to sway a ET with or go at a time of my choosing. I chose the later.

 

Cheers everyone.

Edited September 26, 2012 by Gazza01
grammar/spelling