Oral hearing at the EAT

[billybobynumeroduo]

Hi everyone,

 

back in March last year I had an ET hearing for constructive unfair dismissal

breach of contract

disability discrimination.

 

The case failed on grounds of no discrimination having taken place even though I was found to be disabled!

 

I then applied for review of judgement (not granted)

 

An appeal was submitted to the Employment Appeals tribunal, from a solicitor (not granted)

 

I now have 1 hour, oral hearing in front of the EAT judge (respondent not present) in London early next year (to persuade the judge to allow the appeal in)

 

I have been advised that I need prepare a bundle (much shorter than the previous ET bundle)

and

prepare a skeleton argument.

I have until mid December to get all the paperwork into the EAT.

 

I am not too sure as to the process and preparation of the case and am handling it myself.

I would be very grateful for any help from the more experienced Caggers.

 

Many thanks

 

Best wishes

 

BB

[Pusillanimous]

I would recommend you read the Practice Directions carefully. You should request ELAAS assistance if you are as yet unrepresented, as proper representation is considered impoartant at this level. However, you will not get to see them until the morning of your hearing and they might decline your case. Also, visit your local law centre or CAB and they might be able to connect you with a pro bono counsel.

 

You need to have a point of law to support your appeal. Once you have your point/s of law, you need to identify case law which supports it and this will underpin your skeleton argument. Did you get granted an oral hearing by default? What point of law are you depending on?

 

Start collating the paperwork early, as time flies in no time!

[billybobynumeroduo]

Hi Pusillanimous,

 

thanks for your post,

I have requested ELAAS assistance at the hearing. After having been let down by a (incompetent) barrister at the ET back in march I think I would be more happy presenting the case to the judge myself, and meeting someone on the day I dont know really how usefull this will be?

 

In response to your second point you have stumped me here, I am afraid to say.

 

Yes I applied 14 days after the appeal was not granted, so yes, the hearing is by default. I am not sure what point of law I am going on, more on the point that the judgement was perverse, as no reasonable tribunal would have come to a similar decision.

This is , as you know from my last post on DJ's thread, that the respondents wriggled out of having to deal with the discrimination and the judges did not address pertinent points from my witness statement.

 

Perversity is a point of appeal? I am sure it will not go down to well with the judge, however with regards to points of law and caselaw I am stumped I don't really know what I am looking for?

 

I will start drawing up bundle of evidence asap

 

many thanks for your input

 

best wishes

 

BB

[billybobynumeroduo]

Can anyone advise on the complaints process to the employment tribunal.

 

The complaint is not regarding the staff or service but more the judge's/ panels bias, and failure to extract the facts of the case, indeed not pay due care and attention to the bundle of evidence etc.

 

Many thanks

 

BB

[Emmzzi]

It might be easier to keep all your queries on one thread so people can follow more easily?

[billybobynumeroduo]

ok Emmzi,

 

Will do in future, you are right makes sense.

 

Best regards

 

BB

[Emmzzi]

here is an old thread in a similar vein which may or may not be helpful

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?365263-Suing-tribunals-service-which-court-the-claim-goes-to

[professional1964]

I don't think Employment Tribunals are fair. It's just my personal opinion, but I have watched a Tribunal case and felt the complainant had a good case, but the judge found in favour of the Respondent. In my eyes it was black and white that the Respondent's were lying as their stories didn't match, but still they found in their favour. Is it worth spending more time and effort complaining? I would seriously ask yourself this question.

[billybobynumeroduo]

Hi Prof,

 

yes, you are absolutely right, yet it does depend who the respondent is? Ie do they have the judge in their pockets???hmm

Probably very little will come of my complaint, however I do have an oral hearing early next year. My complaint could well help in proving the perversity of the decision. Not getting my hopes up or anything, however its worth a crack.

 

All the best

 

BB

[billybobynumeroduo]

Emmzzi,

 

many thanks for the link,

 

Regards

 

BB

[honeybee13]

Hello BB.

 

I agree with Emmzzi, multiple threads just lead to confusion and fragmented information and advice.

 

I've merged two of your threads from yesterday and today, please promise me you won't start another one tomorrow

 

My best, HB

[Pusillanimous]

I have requested ELAAS assistance at the hearing. After having been let down by a (incompetent) barrister at the ET back in march I think I would be more happy presenting the case to the judge myself, and meeting someone on the day I dont know really how usefull this will be?

 

In response to your second point you have stumped me here, I am afraid to say.

 

Yes I applied 14 days after the appeal was not granted, so yes, the hearing is by default. I am not sure what point of law I am going on, more on the point that the judgement was perverse, as no reasonable tribunal would have come to a similar decision.

This is , as you know from my last post on DJ's thread, that the respondents wriggled out of having to deal with the discrimination and the judges did not address pertinent points from my witness statement.

 

Perversity is a point of appeal? I am sure it will not go down to well with the judge, however with regards to points of law and caselaw I am stumped I don't really know what I am looking for?

 

I will start drawing up bundle of evidence asap

 

BB

 

BB, the EAT will not want any evidence. It can only look at the decision-making of the ET. If there is new evidence, which has since come to light, you can apply to put that forward, but you have to explain why you did not highlight it before. What the EAT will ask is whether it was within the range of reasonable responses for the ET to have come to their decision. If all of the evidence and facts were in front of them, then it cannot be looked at again (which is why it is so important to make sure you speak up at the ET hearing).

 

I would recommend you search a case similar to yours, which did suceed. Find out which grounds were given, and then that will be your point of law if your ET diverted from case precedent. Were adequate reasons given? Was the test of discrimination clearly identified in the written judgment.

 

I suggest you go through the judgment line by line and pick out anything you disagree with, in terms of reasoning.

 

You are right about ELAAS either party can either agree or disagree with the other.

 

However, it is not like an ET. You will be trembling in your shoes to have to address a senior judge in person, so you are probably better off getting the ELAAS person to present your case, unless you have nerves of steel.

 

They will give it their best shot, even if they disagree with you.

 

The EAT judges are much sharper, so if you do have a case, they will see it.

Edited October 23, 2012 by Pusillanimous

[Pusillanimous]

Can anyone advise on the complaints process to the employment tribunal.

 

The complaint is not regarding the staff or service but more the judge's/ panels bias, and failure to extract the facts of the case, indeed not pay due care and attention to the bundle of evidence etc.

 

Many thanks

 

BB

 

You need to write to the chief Employment Judge of the Regional Tribunal Office initially, to give them a chance to deal with it internally, before progressing it to the Judical Review bodies. However, they will not deal with your complaint until all the legal stuff is over. So for now, best concentrate on your forthcoming appeal.

Edited October 23, 2012 by Pusillanimous

[Pusillanimous]

here is an old thread in a similar vein which may or may not be helpful

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?365263-Suing-tribunals-service-which-court-the-claim-goes-to

 

Not a good example, as the OP appeared to be trolling.

[Emmzzi]

Not a good example, as the OP appeared to be trolling.

 

true but the explanations given of the remedies were ok. Can you find a better example? It's the one I could remember.

[billybobynumeroduo]

BB, the EAT will not want any evidence. It can only look at the decision-making of the ET. If there is new evidence, which has since come to light, you can apply to put that forward, but you have to explain why you did not highlight it before. What the EAT will ask is whether it was within the range of reasonable responses for the ET to have come to their decision. If all of the evidence and facts were in front of them, then it cannot be looked at again (which is why it is so important to make sure you speak up at the ET hearing).

 

I would recommend you search a case similar to yours, which did succeed. Find out which grounds were given, and then that will be your point of law if your ET diverted from case precedent. Were adequate reasons given? Was the test of discrimination clearly identified in the written judgment.

 

I suggest you go through the judgment line by line and pick out anything you disagree with, in terms of reasoning.

 

You are right about ELAAS either party can either agree or disagree with the other.

 

However, it is not like an ET. You will be trembling in your shoes to have to address a senior judge in person, so you are probably better off getting the ELAAS person to present your case, unless you have nerves of steel.

 

They will give it their best shot, even if they disagree with you.

 

The EAT judges are much sharper, so if you do have a case, they will see it.

 

Hi many thanks for your detailed response this is very helpful.

 

TO my understanding the judge at the EAT will not be concerned with the facts of my case (bullying/ harassment) but concerned with the judges' decision-making process to arrive at the judgment?

I am going on the fact that the judges took my statements as read and then failed to bring up certain points from the statement/ incorporate these points into the judgment or to even allow me to go through my witness statement. Indicating that my statement was not read properly and the judges did not ask any questions to clarify and obscure points within the statement.

I have been looking at cases regarding PRACTICE AND PROCEDURE – Procedural irregularity, such as Mehta v Child Support Agency [2010] UKEAT, can you advise if this is on the right track, as I am having trouble understanding the judgments in these cases.

I have to submit the bundle by mid Dec and want to get it sorted asap, so any help is greatly appreciated.

Lastlty could you elaborate on this “Was the test of discrimination clearly identified in the written judgment.” I am very interested in this because the harassment/discrimination was hardly touched upon in the hearing or the judgment the whole hearing focused on my disability and not on the discrimination which was the main crux. I suspect this was a sneaky ploy from the employer to avoid the discrimination charges!

Many thanks

Kind Regards

BB

[billybobynumeroduo]

Hello,

 

any comments? or all quiet on the western front.

 

Regards

 

BB

[billybobynumeroduo]

Does anybody have a contact number/ address for the ELAAS scheme?

 

regards

 

BB

[Pusillanimous]

Billybobynod The argument will be that it was your prerogative to raise the issues. You are better off finding points of law, as the tribunal judge will have a head start on you re procedure. They get lazy re law and substitute their own opinion, so tyr to find the holes in the reasoning of the judgment. Unless the EJ was drunk or fell asleep, the EAT will pull rank with the tribunal in resect of behaviour and procedure.

 

Re ELAAS you have to go through the EAT within seven days of their offering you the service. Did you miss it?

 

If so, I would recommend you ask your local law centre or CAB to refer you to a pro bono unit. Or ring up EAT to enquire what your options are.

[billybobynumeroduo]

Hi Pusillanimous,

 

many thanks for your response:

 

I am really having a hard time finding points of law.

So far I have looked at the judgment and have deduced that important parts of the judgment could be seen as inadequate or non-meek compliant. ie in the judgment the written reasons were that the respondents credible evidence was preferred over my own. But no reasons as to why the R's evidence was preferred.

 

The main crux of the appeal was when the employer reasonably could have known/ found out; about my disability. What is missing from the bundle of evidence was my medical consent, which was not submitted into the bundle of evidence by the employer.

 

I am advocating that the employer knew two months before the date found in the judgment, because i phoned up HR and reported my disability to the HR manager who did nothing and this is when their duty to make reasonable adjustments and look after my health arose not carry on with a performance review putting me at a disadvantage. The HR managers name was also on my medical consent form, which would have incriminated them further however this was left out by the respondents to obscure the true facts of the case. This however, is probably a finding of fact and I raised it in my appeal but it was dismissed by the judge at sift so I am stuck, as I believe it changes the interpretation of the law.

 

I am still not sure if the test of discrimination was applied properly and have extra evidence to submit which was not available at the time due to illness.

 

I have been looking at http://judgmental.org.uk/judgments/UKEAT for appeals that were allowed in but I feel like I am still unsure of what exactly I am looking for.... please help!

 

All the best BB

[becky2585]

in the judgment the written reasons were that the respondents credible evidence was preferred over my own. But no reasons as to why the R's evidence was preferred.

 

 

That is also a finding of fact.

[billybobynumeroduo]

Hi Becky,

 

Yes but the reasoning is not substantial enough, ie meek compliance

[Pusillanimous]

Billyboy, without knowing the specifics of your case, it is difficult to give my opinion. The tribunal will always give preference to the respondent, as the argument is, the onus is on the claimant to prove disability.

 

Was yours a reasonable adjustment issue? I take it the other side are claiming ignorance of the disability?

 

They are supposed to set out what test was used to determine whether you were discriminated against. This could be a comparator or hypothetical group. Was it a direct or indirect claim and how did the discrimination manifest itself?

[Pusillanimous]

You need to look at cases similar to yours and look out for references to accepted case precedent. Look these up and see how they apply to your case. You have identified disability cases, next, pick out references to case law that might apply to your case. Find out how the principles apply.

[billybobynumeroduo]

Billyboy, without knowing the specifics of your case, it is difficult to give my opinion. The tribunal will always give preference to the respondent, as the argument is, the onus is on the claimant to prove disability.

 

Was yours a reasonable adjustment issue? I take it the other side are claiming ignorance of the disability?

 

They are supposed to set out what test was used to determine whether you were discriminated against. This could be a comparator or hypothetical group. Was it a direct or indirect claim and how did the discrimination manifest itself?

 

Hi Pusillanimous,

 

I was claiming discrimination by reason of my disability. The death of my father which had a major desabilising effect on me.

 

I claimed discrimination arising from disability, harassment, and a failure to make reasonable adjustments. Also constructively and unfairly dismissed.

 

I think the easiest thing to do is include excerpts from the judgement for all to see: Sorry about the green this is just to highlight the judgement.

The judge would have to consider whether the Respondents knew or ought reasonably have known of the the disability.

 

The way in which the performance process put in place by R's, treated the Claimant unfavourably because of something arising in consequence of his disability. My performance had always been an issue starting from Jan 2010, prior to my father's death. And I had been on review which had stopped until the new line manager came in an re-applied the performance process, added to this the manager did not like me and conducted the Perf. process by publically scrutinising my work in front of other colleagues.

 

The Claimant told us that the Third Respondent would criticise his performance in front of his colleagues and that he felt humiliated. This was denied by the Third Respondent who told us that she would not publicly criticise the Claimant.This perf process put me at a substantial disadvantage in comparison to persons who are not disabled. which had the purpose or effect of creating a humiliating offensive environment for me.

 

the employer shall not without reasonable and proper cause conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee.

The series of events events caused me, the Claimant to resign;

 

On 20 October 2010, the Claimant was informed that he would receive a performance bonus. The Claimant's bonus was less in percentage terms than awarded to other member of staff whose performance was satisfactory. Please bear in mind my performance had never been an issue in nearly 3 years until the new line manager joined. I was singled out for a lesser bonus even though I received no written warnings in regards to my level of work.

 

with regards to the test of discrimination in the judgement it states:

 

Section 15 of the Equality Act 201 0 provides that a person (A) discriminates against a disabled person (B) if A treats B unfavourably because of something arising in consequence of B's disability and A cannot show that the treatment is a proportionate means of achieving a legitimate aim. However, this kind of discrimination will not be established if A shows that he did not know, and could not reasonably have been expected to know, that B had the disability.

 

The Claimant alleges that discrimination took place from about August 2010 onwards from when the Third Respondent became his line-manager and commenced what might be described as informal action concerning the Claimant's performance. On the balance of probabilities, at the date of the

alleged discriminatory acts, the Claimant's impairment was likely to last at least 12 months. In our judgment the Claimant was a disabled person at material times.

 

In our view. there was nothing in Dr XXX's letter of 11 October 2010, or anything the Claimant himself told the Respondents. that should have put them on notice that the Claimant might be disabled.

 

I believe that the judges made mistakes on points of law here because on the 14th of October I spoke with the company's head of HR and for the first time revealed the circumstances of my father's death. the Hr manager seemed very shocked and said that I should not have been at work for the last 6 months, due to my bereavement, she said she would also have to inform all the relevant members of staff and that I would have to sign a medical consent form for my GP to write a report re my condition. I think this shocking disclosure could well have put the company on alert that I may have been seriously impaired due to my bereavement. The funny think is the judges completely missed this point despite it being in my witness statement. The Respondents on the other hand did their best to cover this up and omitted all traces of HR managers name from the bundle.

 

It wasnt until 14th December when the R's received the dr's repor, in our judgment they knew, or could reasonably have been expected to have known. that the Claimant had a disability. The information in Dr 's second letter put the Respondents on notice that the Claimant's condition was more serious than they thought hitherto.

 

ok, so on the 14th of December the jI udgment is saying that the employer knew that I was disabled, this is not true, I informed the HR manager of my predicament two months prior to this date!!!

The Respondents cannot be responsible for any alleged acts of discrimination that took place before they knew, or could reasonably have been expected to know, that the Claimant was disabled.

 

After 14 December 2010, the Claimant was off sick. Regardless of the Respondents' intentions before they knew or could reasonably have been expected to know that the Claimant was disabled, the performance process was not progressed.

 

We do not accept that the Respondent allowed a bullying and harassing environment. The evidence simply does not support such a finding;

Edited November 8, 2012 by billybobynumeroduo