PHR Respondent wants to strike out claim on grounds that it is out of time

[becky2585]

One week before PHR and nerves have set in...Any advice!

 

Yep... Call your local ET and see if there are any PHRs listed in the next few days - sit in the public gallery and watch the whole process, it'll make you feel more comfortable.

[abeke22]

I have experienced it already and it was awful, this is the third one, the last one was adjourned as I took ill. It has given me time to recoup and reflect as the respondent had an unfair advantage in that they deliberately left out all my documents which made it difficult to defend my case. I have now sent my documents again to the respondent and the Tribunal and I hope I am in a better position to argue my case. However, I am still nervous....I have spent time going over the issues in dispute and I can argue 7 as being a continuous conduct but the rest are less straight forward.

[abeke22]

Hello there,

 

I need some help here. The PHR on Monday is going to deal with whether the first 10 issues are out of date. (I have attached all the issues)

 

I have been reviewing the evidence and on reflection 8 - 10 are clearly part of the redundancy process and in time. 6 and 7 are less clear but still relate to the redundancy. I think the Appraisals (1) and the failure to provide reasonable adjustments (4) continued till I left, would these be construed as a continuing act ... I am left with 2, 3, and 5 which even though I have argued the decision to get rid of me had been made once I became ill (they tried to get me retired on medical grounds twice at the age of 36) and this redundancy was just an opportune time and the redundancy process was a sham. I would like any opinions as to how to go forward with this. In the first 10 issues the perpetrator has been my line manager. (

Edited April 4, 2013 by abeke22
need to delete attachment

[Atlas01]

After reading your attachment and making no sense of it whatsoever (Im sorry it's very late so i'm putting this down to lack of sleep) I will say remove it and take those peoples names out of the document, with a little searching when i'm bright and breezy i could easily identify those people as you have given your employer type, names and also enough for me to focus on your actual work type, more so you can be identified by them on here with ease

[abeke22]

oops! I missed those!!! Will do

[abeke22]

How do I delete???

[abeke22]

I have removed the names I had missed, I apologize for not making sure I got every single one. The format I have used was suggested by the judge at the very first CMD and it outlines the issues I wish to pursue. Thank you

[abeke22]

I submitted a statement which I read at the PHR 2 weeks ago before it was adjourned, is it necessary to write anything that I can read to close/summarize my arguments?

[Pusillanimous]

Don't worry too much about opening and closing submissions for a PHR. I would recommend you look up cases similar to your own, on the Employment Appeals Tribunal judgments database, to get a feel for how to argue your case. Follow up quoted case law, because they are usually the legal standards. To do this, the case should be on the same webpage "search" facility, but if not, google it, or try BAILII webpage. If the case law fits, then use it. There is a "recent judgments" page and that will be up to date. Just prepare a brief bullet point list of things you need to mention (this is called a skeleton) with your issues listed in the opening paragraph.

 

Keep it as simple as possible, with no padding.

 

It is useful to give this to the tribunal and the other party at the hearing. Include relevant case law only. From what the other party say, the closing comments you make, should come to you naturally. Just jot down anything they say you disagree with (but do not interrupt them!) and explain why you disagree in response. Don't bother with theatricals. Don't cry, shout or faint, as it will merely irritate the judge. Focus on your issues. Get straight to the point and do not waffle, or people will stop listening.

[abeke22]

Thank you so much for this. I already started reading cases and as advised before I had read up on Owusu and Aziz v FDA and Hendricks. Could you possibly tell me the authority on extending time for out of time claims and reliance on advice/action of an advisor?

 

Also, am I able to request amendments to the issues that the respondent wants struck out?

 

Thank you for all your help

[Pusillanimous]

You can make an application to amend, but it needs to be within seven days (or was it ten?) of the hearing. Otherwise do it orally, in person, at the hearing, if too late. (Just get a blank sheet of paper and head it, application to amend, with case details and send it off to the tribunal, confirming you have sent a copy to the other party.

 

What you need to emphasise for time limit extension is any of the following that you made an application as promptly as possible (following on from CPR rules), you have a doctor's certificate to account for your slowness, it is in the public interest, it is just and equitable and most importantly, probably, is that the tribunal must take into account the prospect of success. Argue you have a very high prospect of success and thus it will be just and equitable to extend time, etc, in the public interest, as the other party have certainly broken the law.

 

I found this, not sure if it's relevant, but should give you an idea of how to argue it. This cites, that it was "not reasonable or practical" for the claimant to have known:

 

----------------

Time limits

 

Remploy Ltd v Brain UKEAT/0465/10/CEA

Where the Claimant had not put in a claim for unfair dismissal in time as she had no knowledge of the time limit and had taken informal advice from a solicitor that she should exhaust the internal appeal procedure first, it was open to the Employment Judge to conclude (having taken all other material factors into account) that it was not reasonably practicable for this particular Claimant to bring her claim within the three month period. For the full judgment, click here.

Source: http://www.gardencourtchambers.co.uk/bulletins/category/bulletin_detail.cfm?iBulletinID=589

[abeke22]

Thank you so much, I will read the case.

[abeke22]

Hi Pusillanimous, I get the gist of the case but I am afraid the facts don't match.

 

I knew what the time limits were and continued to push the union to act, but due to my worsening health I was too ill to act on my own when it became obvious that they were not going to.

[abeke22]

Thank you all for your help, I have done all I can do....will feed back to you all later today if I can manage it.

[abeke22]

********URGENT REQUEST********

Does any one know a good solicitor in Employment law in the East London area?? The judge advised me strongly to get a solicitor as more was complex....The judge was extremely helpful and it got to the point where he was spoon feeding me the answers to the questions. The PHR has been adjourned till 24th June

[Emmzzi]

We are not allowed to make reccomendations on the forum I am afraid.

[abeke22]

Oh ok

[honeybee13]

********URGENT REQUEST********

Does any one know a good solicitor in Employment law in the East London area?? The judge advised me strongly to get a solicitor as more was complex....The judge was extremely helpful and it got to the point where he was spoon feeding me the answers to the questions. The PHR has been adjourned till 24th June

 

Hello there.

 

The Law Society website has a Find a Solicitor function where you can tell it what speciality you're looking for and where you are. Then a list of relevant firms pops up.

 

Or you could try online directories, but I imagine the Law Society one would be more direct.

 

My best, HB

[abeke22]

Thank you Honeybee13, I have found a solicitor and I am awaiting a first appointment.

[honeybee13]

That's good news, I'm pleased for you. Please let us know how it goes.

 

HB

[Pusillanimous]

Careful with the solicitors as they usually earn their money from the corporations. In other words, you might be given a junior trainee who knows no more about the law than you do. The people who will win your case are the barristers, so you might want to go to one direct and do your own administration. For example, collate bundles and write your own letters. Try CAB and the law colleges, who often offer advocacy services, as vocational training for their students, if moral support is what you need.

[honeybee13]

Good points, Pusillanimous.

[steampowered]

Personally I would stick with using a solicitor. Going directly to a barrister is fine for straightforward cases, but as you said this is a complicated case involving unfair dismissal, and all of race, sex and disability discrimination (!), there is a lot of groundwork to do. Things like disclosure, schedules of loss, discrimination questionnaires, witness statements and so on will need to be dealt with before you get to trial. Many cases are won (and even more lost) outside the courtroom - if the evidence is not in place for the hearing a barrister would not have much to work with. Many employment solicitors are able to represent you at Tribunal if you do not want to employ a separate barrister.

 

There are organisations like the CAB or local law centres who should be able to give you some help for free.

[abeke22]

Where do I start??? I have now had 7 PHR's with the 8th coming up on Wednesday. For reasons better known to the judge he has decided to have a merit hearing to determine which of the allegations should be struck out and after 3 days of cross examination I thought I had done well until it was my turn to cross examine and I soon realized that the respondents had changed strategy and were now saying they did the stuff they did but it was for operational reasons and not because of discrimination. Once I worked that out a third into the questioning it became unbearable and I became quite ill and my carer had to ask the judge to halt proceedings. I found the case which I think they are relying on and it is one in which there was a shambolic redundancy process. My problem now is how I counter this most especially as the judge is making very negative noises and agreeing stuff with their barrister......Any ideas will help!

[Pusillanimous]

If they have changed their story, then you need to direct them to the documents in the bundle, for example their ET3, which shows they originally claimed something different. Ask them to direct you and the tribunal to where the documentary evidence is that it was for operational reasons (a bit of a cliché) and how operations have now improved and how come they never mentioned it before the hearing.

 

If they are relying on this other case, then look it up and pick out key differences from your case. Make sure you let the judge know your case is different in a major respect. Point out that each case should be judged on its own merits.