Employment Tribunal Advice Possible On Strike Out

[NoOne2U]

Hi

 

Res = Respondents

 

Case = DDA 1995 not the Equality Act 2010 as my case was before 2010.

 

To keep this short initially I have an ongoing ET case for over 3 years and the Respondents have dragged things with a Medical Expert, which has caused delays.

 

Since this particular Judge was involved around 2 and half years ago, they have seemed to be biased to everything the Respondents say and do.

 

The Res have claimed they sent me forms which clearly I never got and didn't make sense if they did, they also didn't make it clear to previous Medical experts, that they were not representing me, and the Medical Experts ( 2 in total) thought their Solicitor was mine, due to wording of the joint instruction. This stopped the case progressing for 2 years and watch time I asked questions and asked for Res to explain things, the Judge ignored what I had to say and also my questions on , if they had sent me forms, how could they have if they claimed they sent me the forms to fill say 2nd August , then sent a reminder to me say 5th August to say, we have not had the forms sent to us. I did try argue at a CMD once to say, I don't believe they had sent me the forms, but the Judge basically said, I don;t believe a Professional person wouldn't have sent them, and I can argue till i am blue in the face.

 

The Res have now been claiming that, they can not get a fair hearing as Staff have left/ memory of events would have gone to me not actively pursuing the case?

 

I have tried to goto the Regional Judge but they said nothing to look into, yet they not even read through my file to see where I have been trying to chase matters, and since I have Disability's and am on heavy medication, I am not up and about a lot. This is also something else they claiming, is to say, I not fit to do the Hearing.

 

It looks like again, this Judge will hear the Res case of having my case stuck out and I am at a loss.

 

Anyone give me some input on this?

 

Thanks

[becky2585]

A few points here -

 

Firstly, the Judge isn't biased towards the Respondent. In terms of the forms, he has correctly applied the law - they're deemed to be received unless you can prove otherwise - which you can't. So no unfairness there.

 

Secondly - it was a joint instruction - so I presume you would have been given the opportunity to approve the instruction before it went to the expert? If so, no argument there either.

 

I suspect there's a lot more to it than this - not agreeing instructions does not cause a two year delay!

 

Anyway, the tribunal will now have to weigh up the prejudice against the Respondent by allowing the case to proceed without them now having the chance to adequately defend themselves, compared to the prejudice against you by throwing the case out. You say you're still heavily medicated etc so it doesn't sound like the case will be heard anytime soon, so the Respondent does have a chance of succeeding in such an application. The Tribunal has an overriding objective to dispose of cases quickly and efficiently to consider as well.

 

Have a look at this case - Riley v The Crown Prosecution Service UKEAT/0043/12 for an example.

 

That is to strike out under Rule 18(7)(f), an inability to hold a fair hearing (which is rare). If they're arguing the case has not been actively pursued under Rule 18(7)(d), you can more easily argue against that, but an "inordinate and inexcusable delay" also falls under this rule.

[NoOne2U]

Hi

 

You have misunderstood my post?

 

At no point did I receive the forms and they claimed they sent 3 lots to me.

You tell me, if you sent someone forms to sign, don't you normally allow 7-10 days before you send them a reminder?

Alll I received were reminders around 3-4 days after then claimed to have sent me forms to fill?

 

I ask for copies of the covering letter which is always sent with any forms, but they failed to provide me with this, and the Judge ignored me.

 

2nd Point

Yes it was a Joint Instruction, but the Judge instructed the Respondents to draw it up and my part was only to sign it. Which I did after I wasn't being listened to as , I didn't agree with some points of it.

 

I also asked that I be sent copies of all material which the Medical Expert would be receiving, yet I was once again ignored.

I even asked for what copy of the "Guidance about matters to be taken into account in determining whether a person is a disabled person" as the Respondents referred to the Equality Act 2010, but again I was ignored.

 

As for your other comment, as a Solicitor put to me, The Courts are obliged to help a case be brought, if it has Merits which mine does, also they could bring the Hearing to a Local Court nearer to me and have the options of Video responses and allow 2-3 hours at time, then a break if I needed. I may be able to manage 2 or 3 hours upto half a day, which would increase how many days needed, but that shouldn't be a reason to Strike the Case Out?

 

I will try find what they are arguing under, but one is as I stated, members of Staff have left so they can't get a fair trial, but doesn't that work for me also, as I asked for information and also, they had already interviewed staff and wouldn't let me talk to them.

[NoOne2U]

This is what is claimed

 

In the circumstances the Respondent requests a pre-hearing review is held to consider the Respondent's application that the claim be struck out on the grounds that it has no reasonable prospect of success under rule 18 (7) (b), that the claim has not been actively pursued under rule 18 (7) (d) and that it is no longer possible to have a fair hearing in these proceedings under rule 18 (7) (t).

In the alternative that the Tribunal considers requiring the Claimant to a pay deposit, under rule 20 in order to continue with proceedings.

[becky2585]

At no point did I receive the forms and they claimed they sent 3 lots to me.

You tell me, if you sent someone forms to sign, don't you normally allow 7-10 days before you send them a reminder?

Alll I received were reminders around 3-4 days after then claimed to have sent me forms to fill?

 

Personally no, in my job I'd be sending out reminders frequently to ensure I met the Tribunal deadlines! You received the reminders - therefore, if the Respondent claims to have sent the originals to the same address, regardless of whether they can prove they did or not, legally they are deemed to have been posted and received by the recipient.

 

I ask for copies of the covering letter which is always sent with any forms, but they failed to provide me with this, and the Judge ignored me.

 

Then the correct way to deal with this is to apply for an order for specific disclosure of those letters from the Tribunal.

 

I2nd Point

Yes it was a Joint Instruction, but the Judge instructed the Respondents to draw it up and my part was only to sign it. Which I did after I wasn't being listened to as , I didn't agree with some points of it.

 

I also asked that I be sent copies of all material which the Medical Expert would be receiving, yet I was once again ignored.

I even asked for what copy of the "Guidance about matters to be taken into account in determining whether a person is a disabled person" as the Respondents referred to the Equality Act 2010, but again I was ignored.

 

If you didn't agree with elements of it, that was your chance to amend it. By signing it, you've legally indicated your agreement. The guidance you are referring to can be downloaded from the Internet - I don't think it's the Respondents responsibility to provide you with this, although I would have done just to be polite!

 

As for your other comment, as a Solicitor put to me, The Courts are obliged to help a case be brought, if it has Merits which mine does, also they could bring the Hearing to a Local Court nearer to me and have the options of Video responses and allow 2-3 hours at time, then a break if I needed. I may be able to manage 2 or 3 hours upto half a day, which would increase how many days needed, but that shouldn't be a reason to Strike the Case Out?

 

No, that is not a reason for striking the case out. But if you cannot attend a hearing, and did not return the forms, then arguably it's not being actively pursued. The Tribunal won't list the hearing for several half days - it would be highly inefficient. You would have to be there for full days - but there are always regular adjournments throughout the case.

[becky2585]

This is what is claimed

 

In the circumstances the Respondent requests a pre-hearing review is held to consider the Respondent's application that the claim be struck out on the grounds that it has no reasonable prospect of success under rule 18 (7) (b), that the claim has not been actively pursued under rule 18 (7) (d) and that it is no longer possible to have a fair hearing in these proceedings under rule 18 (7) (t).

In the alternative that the Tribunal considers requiring the Claimant to a pay deposit, under rule 20 in order to continue with proceedings.

 

Rule 18(7)(t) doesn't exist, so I guess they're applying under the rule I mentioned before.

 

A deposit order under Rule 20 can only be made under an 18(7)(b) application, not under the other grounds they cite, as they are for strike out only.

 

I would suggest getting legal advice here - it sounds like it's a complex case for a lay person to deal with!

Edited December 30, 2012 by becky2585

[NoOne2U]

]Personally no, in my job I'd be sending out reminders frequently to ensure I met the Tribunal deadlines! You received the reminders - therefore, if the Respondent claims to have sent the originals to the same address, regardless of whether they can prove they did or not, legally they are deemed to have been posted and received by the recipient.

 

Why would they need to Prove it? You still not understood that they are the Respondents and I am the Claimant?

When the Judge automactically agrree's to everything the Res are saying then how is this not being Biased?

 

Then the correct way to deal with this is to apply for an order for specific disclosure of those letters from the Tribunal.

 

I have tried manytimes to get my Data and other item's, even mentioning it at CMD's, but again they are ignored.

So again, how is this not Biased?

 

If you didn't agree with elements of it, that was your chance to amend it. By signing it, you've legally indicated your agreement. The guidance you are referring to can be downloaded from the Internet - I don't think it's the Respondents responsibility to provide you with this, although I would have done just to be polite!

 

 

 

No, that is not a reason for striking the case out. But if you cannot attend a hearing, and did not return the forms, then arguably it's not being actively pursued. The Tribunal won't list the hearing for several half days - it would be highly inefficient. You would have to be there for full days - but there are always regular adjournments throughout the case

 

Again I already explained, at CMD's I disagreed with parts of the Joint Instruction, but again ignored by the Judge.

All the Judge said was for me to sign the papers which I ended up doing.

This also included me having no choice, but to sign my Medical Records over, which the ICO have said, all that should have been signed over were, only the relevant parts to the case, and not my whole records.

So I ask again, how is this not being Biased and at most, not receiving a Fair Trial?

 

No, that is not a reason for striking the case out. But if you cannot attend a hearing, and did not return the forms, then arguably it's not being actively pursued. The Tribunal won't list the hearing for several half days - it would be highly inefficient. You would have to be there for full days - but there are always regular adjournments throughout the case.

 

Again you have not listened, I clearly said I was asked to sign the Joint Instruction so I ended up doing it.

 

The delay has been for nearly 2 years, which I already explained and you have skipped these matters?

 

I clearly stated that the previous Medical Experts, thought that the Res Solicitors were mine, and upto the point I was suppose to go to the appointment, they stated that, they do not take Instructions from a person who is not represented.

 

So they canceled the Joint Instruction.

 

When we found another Medical Expert, they said they are just a General Rheumatologist but can comment on the main Medical Condition and in general on the others.

 

I later had a conversation with them as they initially put that my Medical Conditions do not fall within the meaning of the DDA 1995, yet when I asked which Guidance they used, they said the one which was sent to them.

 

This was why I asked for a copy as it clearly states, you can not use any Corrective measures e.g Medication, treatment amongst other things.

 

Also that you can not ignore minor conditions which affect someone.

 

So they later redone the report, but did state to me, that their report wouldn't hold up in Court as they are not a Expert in those fields, and I would need an Expert in each.

 

Their report would be the same value as any other GP/Consultant and can be argued out of Court anyway.

 

At the last CMD , I expressed that I wasn't happy with the delays the Res and the Medical Expert have been taking, and I want to instruct my own Medical Report.

 

Again, all the Judge did was, tell the Res to write to the Medical Expert and ask when the report would be finished .

 

The Medical Expert has not answered all the Points put to them.

 

These are just some of the issues where there is clear Biased, and I have expressed that i do not agree on some matters, but I have been forced to sign things I wasn;t happy doing.

 

You have made wrongful comments against me, rather than understanding that a person with Disability's is at a Disadvantage when it comes to ET Cases, and does not have the same fairness as the Res and their Solicitors.

 

If at most, it can be argued that a person like me is not getting a fair trial under the ECHR ( Human Rights) .

Article 14 with Article 6 and 8.

 

You have missed the whole point of my post, as I wanted to know, when a case be Struck out, as there is a high possibility my case will be struck out, because this one Judge who has been dealing with it.

 

How can the delays be put on me when all i have done is asked clarification on matters and parts of the case I don't agree with.

I have read somewhere that, if a person like me who is unfamiliar with the Court process, the Judge should be explaining matters in depth so I understand what I am or are being Instructed to do.

[Emmzzi]

I think you are being a little harsh on Becky.

 

If you are making a claim due to disability it is up to you and no one else to prove you have that disability - so you find the medical experts and you pay for the medical experts - and you don't take 2 years to do it! It is your job to know the law, or hire someone who knows it to help you - not the judge's to explain it.

 

I know this will not be what you want to hear, but you do need to be more active in helping yourself here and stop waiting for other people to do what you believe they should.

 

As Becky suggests this is a complex sounding case. I always recommend advice from a qualified professional who is insured to deal with you and that you pay, as then you have recourse if they get it wrong! I too suggest you find a specialist solicitor quickly.

[NoOne2U]

I think you are being a little harsh on Becky.

 

If you are making a claim due to disability it is up to you and no one else to prove you have that disability - so you find the medical experts and you pay for the medical experts - and you don't take 2 years to do it! It is your job to know the law, or hire someone who knows it to help you - not the judge's to explain it.

 

I know this will not be what you want to hear, but you do need to be more active in helping yourself here and stop waiting for other people to do what you believe they should.

 

As Becky suggests this is a complex sounding case. I always recommend advice from a qualified professional who is insured to deal with you and that you pay, as then you have recourse if they get it wrong! I too suggest you find a specialist solicitor quickly.

 

Sorry but I am not being Harsh, I asked a question without going to the In's and Out's of the case.

 

FYI = I have already proven Disability under the Act from 2007 and the Medical Expert has indicated as far back as around 2003 if not longer.

 

I just needed to know the Rules on a Strike out Rules?

 

Maybe it is how you deal with matters on this forum, but I came here because I have already tried Solicitors, but they all want up front fee's of over 15k and for them to do the Case.

 

I tried finding AdHoc Solicitors who would give advised as and when needed, but none do that in my area.

 

I have also learnt that i could apply for Legal Aid, but again, for me to do this, I needed to find an Employment Solicitor who would do Legal Application, but none will do it in my area.

 

I fail to see how my post is any different to anyone else's here?

 

You also fail to understand that 2 years can go quick when you are :-

 

1st = Trying to Locate Medical Experts in your area

2nd = Once you find some ( we found around 8 ) , you then contact them and see if they can do the Joint Instruction.

3rd = Most take upto 3 months or more to do a proper response back.

4th = Once you find one who is interested, you supply them with details and they then write back, which again can take months when they have their Clinics etc to do also.

 

As explained previously, we had found 1 but upto the point which was nearly a year, they wrote back and said, they do not take Instructions from someone who is not represented, as they thought the Res Solicitor was mine.

 

When we found a few other's they said they no longer do Private Instructions.

 

This left only 1 which was instructed, but again with their own Clinics in Hospitals and Private Clinics, it takes months to correspond back and forth.

 

Maybe things work quicker in your area, but not where I am and I was limited on how far I could travel.

 

It's easy for you to say, go pay someone, but when you have no money because, hence reason of the ET case in the first place, I became very ill after due to the stress of the matters and then having to deal with the ET case myself.

 

You seem to make a Judgement that, everyone can just go out and pay for Legal Employment Solicitors, which I have already tried, as explained above.

 

Please can someone re-read my question and respond to the Rules around a Strike Out?

 

Thanks

[Emmzzi]

You have had an answer to that - you would need to show you are actively persuing the claim. Non persual is a valid reason for a strike out. So far you have a list of reasons why nothing has happened. That'll wash for a few months.. but over a few months... not so much.

 

If you genuinely believe you have a case get a no-win no-fee solicitor off the telly onto it. They will get you a medical report in weeks, not months.

 

If you cannot get a no win no fee to take the case I would query whether you have a decent chance of success.

[Emmzzi]

the rules...

http://www.legislation.gov.uk/uksi/2004/1861/schedule/1/made

 

(7) Subject to paragraph (6), a chairman or tribunal may make a judgment or order: —

(a)as to the entitlement of any party to bring or contest particular proceedings;

(b)striking out or amending all or part of any claim or response on the grounds that it is scandalous, or vexatious or has no reasonable prospect of success;

©striking out any claim or response (or part of one) on the grounds that the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious;

(d)striking out a claim which has not been actively pursued;

(e)striking out a claim or response (or part of one) for non-compliance with an order or practice direction;

(f)striking out a claim where the chairman or tribunal considers that it is no longer possible to have a fair Hearing in those proceedings;

(g)making a restricted reporting order (subject to rule 50).

[Emmzzi]

PPS I know you did not ask this but do you have a

- social worker/ case worker

- is there an organisation for your condition?

 

sounds like you need advocacy help. I am not sure who they "we" you refer to earlier is

 

also check house insurance for legal cover

[NoOne2U]

the rules...

http://www.legislation.gov.uk/uksi/2004/1861/schedule/1/made

 

(7) Subject to paragraph (6), a chairman or tribunal may make a judgment or order: —

(a)as to the entitlement of any party to bring or contest particular proceedings;

(b)striking out or amending all or part of any claim or response on the grounds that it is scandalous, or vexatious or has no reasonable prospect of success;

©striking out any claim or response (or part of one) on the grounds that the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious;

(d)striking out a claim which has not been actively pursued;

(e)striking out a claim or response (or part of one) for non-compliance with an order or practice direction;

(f)striking out a claim where the chairman or tribunal considers that it is no longer possible to have a fair Hearing in those proceedings;

(g)making a restricted reporting order (subject to rule 50).

 

I understand this part and it is why I went to the Regional Judge, as the Res were taking their time responding to me and then blaming me for not responding to my postal issues with me.

 

None of this covers the grounds of them claiming, not able to get a fair trial because Staff have left the Company and Memory of events are fading.

 

Surely, if they took statements/Interview people at the time, then how does this apply.

Also, just because Staff have left, can they not be summoned to an ET Court?

 

As for No Win, No Fee, well you give me the names of these, as I have yet to find one who takes of Disability Discrimination Employment Law.

[Emmzzi]

as Becky explained that'd be point f) and is unlikely to happen - more likely is non active persuance.

 

I wish you luck.

 

Please remember everyone who posts here does so on their own time for no recompense because (usually) they like helping people. I personally don't cope well when people are abrupt/ argue with me - I hope someone more robust will be along to help you tomorrow.

[NoOne2U]

PPS I know you did not ask this but do you have a

- social worker/ case worker

- is there an organisation for your condition?

 

sounds like you need advocacy help. I am not sure who they "we" you refer to earlier is

 

also check house insurance for legal cover

 

Hi

 

Sorry if I sound abrupt, but when you have upto 8 Meds you are on, you get a little frustrated as you can;t concentrate long enough, and it takes me a long time to write to responses here or anywhere else.

 

It is common that the Meds I am on, causes Disability's further by impacting how you communicate, and it can come across that I am agreesive or otherwise, which on a good day, I will never come across as that.

 

I only wanted answers to the Strike Rules and since the case is long, it will take me too long explaining things, when I have written letters back and forth, and then when the Res do, they go and write to the ET to say, i am not pursuing the case.

 

Not sure what you meant by Social Worker/ Case Worker?

 

I have already explored al Legal avenues, like Insurance Cover and so on, but I am out of luck on it all, and since the impact of me being injured at work due to them not making Reasonable Adjustments, I ended up being on long term sick and then they dismissed me. This meant I was financially impacted.

 

Once again, I am sorry if I come across aggressive, but there is no intention of being like that, and it's just the frustration of repeating things, when I have done all I can, and the issues around the case are complex on how the case has been managed also, by the Judge.

[becky2585]

I don't mind people arguing - what I do mind is being told I've missed the point when in fact, you have completely misunderstood the law and are ploughing on like a bulldozer regardless. I also dislike people being rude when I'm trying to help them see what the actual situation is, not the rose tinted specs version.

 

I'm done.

[NoOne2U]

del

Edited January 1, 2013 by NoOne2U

[Emmzzi]

The strike out rules have now been covered twice. As to what to do about them I presume you have a letter from the court with date by which you must respond. So respond.

 

a) do you have any evidence that says you have been persuing medical review or better yet can you get it done before the hearing? Evidence - letters, not moaning. Send them that.

 

b) if you say the witnesses are all "callable" do you have written confirmation they are willing to attend? Send them that.

[NoOne2U]

Del

Edited January 1, 2013 by NoOne2U

[Emmzzi]

a) then send copies of that

b) you are the one who said it'd be easy to call witnesses so clause f) does not apply - so it's up to you to prove it

[steampowered]

Don't rely on the judge or other side to do things for you. If you haven't received forms, you need to ask for them. If data is being withheld, you need to write a letter formally asking for it and make an application to the ET if it won't be provided. Two years sounds like a horrendously long time for an ET case to be dragging on, I think you need to be trying to move things forward fast if you want to keep going.

[NoOne2U]

Del

Edited January 1, 2013 by NoOne2U

[NoOne2U]

Del

Edited January 1, 2013 by NoOne2U

[Emmzzi]

Oh dear.