Oral hearing at the EAT

[honeybee13]

morning all,

 

with regard to Emmzii and HB's recommendations I am going to concentrate on this thread and am now going to focus posting solely here.

 

I'm just off to the Employment Appeals Tribunal to watch a couple of 3(10) hearings.

 

Look forwards to posting the results of my findings later on.

 

Best wishes

 

BB

 

You're a star, thank you.

 

I hope you have a good day and find it useful.

 

HB

[Pusillanimous]

The Employment appeals tribunal will not allow a large bundle ...the bundle should only be about 30/35 pages max.

 

They will if you ask permission in advance, setting out your reasons.

[madari]

NO THEY WONT....now be told ...loll!!.....[no offence]

[honeybee13]

How was your day, BB?

 

HB

[billybobynumeroduo]

How was your day, BB?

 

HB

 

Hi HB.

 

yes the day was great thanks.

 

The Claimant had had her claim struck out due to a time issue and was trying to get the claim to be submitted for a full hearing. It was a racial discrimination case where the Respondent did not deny the racial abuse having taken place, however C cannot get claim in so C is now running a concurrent County Court claim, which seems fair enough.

 

In terms of legal argument there was a not much to aid my case but in terms of seeing a properly prepared skeleton and procedure of the court was very valuable.

 

All I have to do now is get my legal argument together which shouldn't be hard as the judge only cited 5 cases in his judgement:

Richmond Adult Community College v McDougall 2008 ICR 431

lgen Ltd v Wong and Others CA [2005] IRLR 258

Madarassy v Nomura International [2007] IRLR 246.-

Western Excavating (ECC) Ltd v Sharp

Lewis v Motorworld Garages Ltd 1986 ICR

 

I do believe the judge erred in the first procedural impropiety of the course of hearings as he allowed the respondent solicitor to hound me for best part of 30mins as to disability after having left the company. and at no point intervened. Correct me if I am wrong but Richmond states

it is not permissible to take into account matters which took place after the date of the alleged discrimination"

 

 

In addition to this I plan to raise the point that the Respondent has mislead the original tribunal, by not disclosing all the material facts/evidence of the case. Breach of the Civil procedure rules???

 

Then lastly I am seeking to introduce some new legal arguments along the lines of the employers having a duty of care and are responsible for not aggravating the mental health of their employees (I think Dj gave me the relevant caselaw for this...https://www.checkyourmood.com/content/baker-refractories-v-bishop)

 

then its preparing the bundle of authorities.

 

The chap representing the claimant yesterday was from FRU and very good indeed, he mentioned ELAAS are very good but again I will be meeting them on the day and they may not be there so I am making sure everything is in good order for the day.

 

Any advice most welcome.

 

 

Regards and thanks

 

 

BB

[billybobynumeroduo]

Bearing in mind this is a 3(10) hearing do i have to copy the Respondents in on any of the EAT arguments, bundles of evidence of any other correspondence?

 

Regards

 

BB

[billybobynumeroduo]

You have found a point of law, Billy boby! It is correct that an employer ought to be able to spot when an employee is behaving aberrantly. Excellent! This is what you need to argue. Do a brainstorm of examples of when they should have noticed and jot them down, no matter how trivial, for now.

 

Presumably there will be medical records of your distress at this time.

 

Hi Pusillanimous,

 

do you have any caselaw to back this up??

 

Regards

 

BB

[Pusillanimous]

No offence, Madari, but this is not opinion, it is fact. Section 6.3 of the EAT Practice Directions states, "No bundle containing more than 100 pages should be agreed or lodged without the permission of the Registrar or order of a judge which will not be granted without the provision of an essential reading list as soon as practicable thereafter."

 

It is obvious that some bundles will be weighy if the matter has been going on for a long time or there are many appellants/respondents.

[Pusillanimous]

Hi Pusillanimous,

 

do you have any caselaw to back this up??

 

Regards

 

BB

 

 

I am sure I gave you the case law. Perhaps it is on your other thread?

[Pusillanimous]

Hi HB.

 

 

All I have to do now is get my legal argument together which shouldn't be hard as the judge only cited 5 cases in his judgement:

Richmond Adult Community College v McDougall 2008 ICR 431

lgen Ltd v Wong and Others CA [2005] IRLR 258

Madarassy v Nomura International [2007] IRLR 246.-

Western Excavating (ECC) Ltd v Sharp

Lewis v Motorworld Garages Ltd 1986 ICR

 

I do believe the judge erred in the first procedural impropiety of the course of hearings as he allowed the respondent solicitor to hound me for best part of 30mins as to disability after having left the company. and at no point intervened. Correct me if I am wrong but Richmond states

it is not permissible to take into account matters which took place after the date of the alleged discrimination"

 

 

In addition to this I plan to raise the point that the Respondent has mislead the original tribunal, by not disclosing all the material facts/evidence of the case. Breach of the Civil procedure rules???

 

Then lastly I am seeking to introduce some new legal arguments along the lines of the employers having a duty of care and are responsible for not aggravating the mental health of their employees (I think Dj gave me the relevant caselaw for this...https://www.checkyourmood.com/content/baker-refractories-v-bishop)

 

then its preparing the bundle of authorities.

 

 

 

 

Regards and thanks

 

 

BB

 

 

Be sure the new legal points you are raising are in your Norice of Appeal. If not, apply to amend.

 

Ditto the hounding - you need to have mentioned it in your appeal as a procedural issue.

 

Re the other party not disclosing all evidence - if you were aware of this during the hearing, the question you will be asked is why you did not press the judge to order the important disclosure.

[billybobynumeroduo]

Hi all,

 

just a quick update to say that I have applied for a postponement/ time extension on my oral hearing 3(10)

 

I am putting all the paperwork together myself, unassisted and its getting tough.

 

I have already had one application refused so have issued another, I just need a bit more time to get everything together. Ps my hearing is mid February, so about a month's time.

 

Thanks to all who have given input, especially Pusillanimous, cheers for all your help.

 

Regards

 

BB

[Pusillanimous]

Billybobynumeroduo: Don't bank on the EAT giving you an extension. Not being prepared whuld not be deemed an adequate reason. As they see it, they are granting you the privilege of an appeal and will be very snooty about postponing it. I would get your 35 (?) page bundle in as soon as possible (they only want two or three copies, depending on the directions). Your skeleton argument does not need to be in until two weeks beforehand and the authorities seven days in advance (check this, though).

[billybobynumeroduo]

hi Pus,

 

thanks for your post,

 

yes I intend to get my bundle of papers in (approx 35 at the moment, could go up still) 2 weeks before the hearing date, as agreed with the case worker.

 

Additionally I will be submitting a amended EAT1 notice of appeal, this again will go in deadline of 2 weeks before the hearing.

The caseworker mentioned that this submission for amended EAT1 may have to be made on the day of the hearing. Not sure why this, but I will be submitting it Asap.

 

Kind regards

 

BB

[Pusillanimous]

It's a good idea to do this a few days before the deadline, in case something is missing or not in order. Then you have time to rectify whatever is the problem.

[Pusillanimous]

You and DJ1975 (and others) would find these tribunal statistics for 2011 -2012 of interest:

 

https://docs.google.com/viewer?a=v&q=cache:yNipcnSKxVUJ:www.justice.gov.uk/downloads/statistics/tribs-stats/employment-trib-stats-april-march-2011-12.pdf+&hl=en&gl=uk&pid=bl&srcid=ADGEESjxrbRdQZdUenBz4crvgWk4QqzBhLM8bIyrksS1hXE4oA-_vAX_N2k-ZsIOB8gPgANjLiT3Lirhu4WiHO7V2-e_LwFRqmqocnGRgRVbKgOYIHa_YJiiiMdRb-sg8otoKAB5Slu_&sig=AHIEtbSCmlKmsqNgt93W9GUiBvI4PUE2eg

[billybobynumeroduo]

Hi all,

 

just a quick question are the employment tribunals rules on disclosure governed by the civil procedure rules or as I'm guessing does this fall under the Employment Tribunals Regs 2004?

 

Kind Regards

 

BB

[billybobynumeroduo]

one more question,

 

how can I go about requesting the judge's notes from the original hearing to be obtained for the Oral 3 (10) hearing coming up.

If I make a specific request to the registrar this is not going to be seen as unreasonable?

 

Regards

 

BB

[Pusillanimous]

It is rare for the Judge's notes to be released, so I should concentrate on the matters at hand. They may well have already seen the jduge's notes in private.

[madari]

I would like to remind you with due respect that a 3 (10) oral hearing is basically a plea to be allowed to lodge an appeal on a `point of law`no more no less and this is all one should be concentrating on.

 

Reading between the lines you have already been denied an appeal during the `sift` process due to there being no `error of law`. [am i right?]

 

Good luck

[billybobynumeroduo]

I would like to remind you with due respect that a 3 (10) oral hearing is basically a plea to be allowed to lodge an appeal on a `point of law`no more no less and this is all one should be concentrating on.

 

Reading between the lines you have already been denied an appeal during the `sift` process due to there being no `error of law`. [am i right?]

 

Good luck

 

Hi Madari,

 

yes, you are absolutely right yes the case has been weeded out at the sift process. At this time the EAT1 was not properly constituted and missed out the point that there had been material non-disclosure.

 

The EAT 3(10) hearing is coming up in 2 weeks, not feeling particularly confident at all. Yes there has been material non-disclosure and I now have a couple of the important documents. I know there are other important docs that the Respondent is persisting to withold, however I am unlikely to get hold of these.

 

The Respondent response to the ICO letter is due tomorrow, what is the likelihood, that the Respondents comply?

 

Again, I am not confident of the outcome of the 3(10), however am intending to go along to the 3(10) to see what happens. Any harm in this?

[billybobynumeroduo]

Respondents are denying existence of certain documents, similar to their solicitor’s previous denial during ET proceedings of the a conversation that I now have in my possession which later came to light.

 

Seeing as Respondents are regulated by the FSA, I find it highly irregular that they, do not deny the conversations in question having taken place however they claim to have no minutes, no recordings, no transcripts or further details of any further action taken.

 

The non-disclosure also seems especially irregular with regards to senior managements conversations, as I recently discovered the chap in question is a digital communications expert and regularly does communication-consulting work for police, Criminal justice Division. I think this says it all really. A communications expert has not documented any of his conversation and no digital recordings exist. This seems highly unlikely.

 

A full disclosure has yet to be made, which has prejudiced my first hearing greatly. How can I ensure disclosure is made?

 

3. What are the possibilities of making a court order before the 3(10) hearing for discovery of all of respondent’s documentation?

What are the benefits and disadvantages of making an application?

I would assume costs could be an issue.

Again it is very shaky ground as I know, a full disclosure has not been made yet I don’t know what exactly is missing, I cant be specific because the Respondents have not shown their hand and anything which links to incriminating them has been covered up.

 

I am very concerned, there is a lot of information that is not available to me, however the Judge would have the key to requesting all the information so that all can potentially see Respondet’s real actions and agenda.

 

This is turning into a Witch hunt and does not fill me with much confidence at all. Any advice?

[billybobynumeroduo]

ICO have just called me up and they seem pretty useless in respect of getting a response from the respondent

 

The deadline falls tomorrow, however ICO cannot send me the R's response until tomorrow and the R's may not even provide a response and still the ICO will not let me know this until next week. With two weeks until the 3(10) it seems pretty hopeless.

 

Has anyone actually had any positive responses from the ICO or had them handle any DP issues well???

[madari]

Hi,

 

Relax and do not get worked up....cover ups are the order of the day with all organisations and the EAT are all too aware of this fact, your best bet id to argue this point at the appeal hearing.

 

I suggest you google:

`Burns - Barke procedure`...and use this as a driving tool for your case

 

Good luck.

[billybobynumeroduo]

Hi Madari,

 

many thanks for your post, I will look up Burns Barke procedure however I probably wont use it in the notice of Appeal.

I have been advised to keep the EAT1 argument as simple as possible so that the judge is not able to cross-examine me on the finer points of the law, which I wont be able to argue!

 

The problem I am aware of is that had the information been available at the original hearing would it have been enough to change the outcome? It certainly would have given my argument more weight but would it be enough!

[madari]

Why are you not being represented by counsel from Elaas ??