Pre hearing review employment tribunal help?

[j832]

Hi All,

 

I am in Northern Ireland and I currently have a case against a previous employer for 3rd Party Harassment. I was working in a nightclub and was sexually assaulted (penetrated) by a customer, the last in a long line of harassment issues by customers, against not only myself, but also other staff members. In their ET3, the employer has defended their position by arguing that 'it took all reasonably practicable steps to prevent staff being harassed, and as such cannot be held liable', because of adequate security presence etc.... However, during the course of discovery, I have received security check sheets from the Respondent showing that security checks (conducted every 20 minutes according to their records), were missed for 1hour 20minutes, totalling 4 checks, on the night in question.

 

My Question is would I be worth my time to request a pre-hearing review to get this response, or at least this part of their defence struck out, and say that their claim has little or no prospect of success?

 

They have made the assertion that they had done everything they could, and cant be liable. However even their own evidence suggests that this is a blatant lie, and by the same logic they would then be liable. Is this something a pre hearing review would consider or would I just bring this up when they argue it at the hearing?

 

Below is a copy of the letter I have drafted to the tribunal, but I don't know if I should send it or they would consider it.

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'I, beingthe claimant in the above matter, would like at this time to requesta pre-hearing review to consider the veracity of the Respondent'sdefence of this tribunal claim. The main reason for doing so is thatI believe that the Respondent's claim has little or no chance ofsuccess and I believe it should be partly, or wholly struck out.

 

 

 

 

There area number of issues outlined below which I believe should beconsidered.

 

 

 

 

1. The Respondent has stated in their ET3 form that, 'Without prejudice to the foregoing even if accepted that the assault took place the Respondent does not accept that it has any liability in respect of this and further contends that it took all such reasonably practicable measures to prevent such an assault from occurring as evidenced by both the number of security personnel in place...'. However, during the course of discovery, it has come to the attention that on the nights of the main incidents, namely the 18th and 19th of January 2013 (incidents mentioned in the claimants ET1 form), security checks which the company claim are conducted every 20 minutes, and had always been done so before this weekend, ceased on the toilets in question at 1.40am while the club remained open until 3.00am, on both evenings, even though checks were still carried out on the other areas of the premises up until 3.00am. This point also raises another issue in the ET3 when the Respondent stated that 'It is denied that the toilets within the premises are not secure'. Clearly in their own written reports they have proven that the toilets were not secured on the nights in question by a member of security.
   

 

 

1. The Respondent has also argued in their ET3 form that, 'Without prejudice to the foregoing even if accepted that the assault took place the Respondent does not accept that it has any liability in respect of this and further contends that it took all such reasonably practicable measures to prevent such an assault from occurring as evidenced by..., procedures and risk assessments in place and adhered to...'. However, according to the Respondent themselves, on the 2 incidents involving xxx, incidents involving xxx and xxx, no incident report forms were filled in by security or management, and with regards to my incident on the 19th January 2013 (incident of sexual assault), the Respondent freely acknowledges that the Assault was reported to and investigated by xxx, Club Manager (even though no incident report or notes are said to exist). However, in the Door Supervisor Summary Job Description, Main Duties, point number 7, clearly states that 'all incidents that occur are fully documented using incident reports, on the same night that the incident occurs'. Therefore, the Respondent cannot argue release from Liability for its procedures in place, when the procedures have clearly been shown not to be adhered to at all times.
   

 

 

It is forthe reasons outlined above that the Claimant believes there may be aneed for a Pre-Hearing review, so as to get either this part of thedefence, or the defence by the Respondent in its entirety struck out,as the Respondent has little reasonable prospect of success in thedefence of this claim. The Respondent cannot argue that they cannotbe liable because they took all such reasonably practicable measuresto prevent this type of incident when it can be so easily proven thattheir reasonably practicable measures were not always adhered to assuggested within their own policies. By the same logic, as it can beso easily proven that the security presence and procedures wereinadequate or not adhered to, and therefore they did not take allreasonably practicable measures to protect staff, they are whollyliable, and the Claimant feels that this part of the defence cannotbe allowed to stand, in my opinion. '

 

Thanks

Edited July 5, 2013 by honeybee13
Names removed

[steampowered]

Hi,

 

 

 

I don't think it is worth making this application. My personal opinion is that it is unlikely to succeed for the following reasons:

• The point about whether the nightclub took adequate precautions is central to your case. That line of argument is very difficult to isolate from the case as a whole.
  
• The threshold for getting something struck out is very high. For these purposes you would need to show it has no reasonable chance of success. The fact that security checks were not carried out is very damaging evidence but I don't think it is enough to secure a strike-out... Respondent may argue that the record is not accurate or that, despite the failure to carry out checks, they neveretheless had adequate protections in place.
  
• Strike-outs of this nature are normally used for legal points (i.e. their argument can never be right as a matter of law) rather than legal points (e.g. Respondent did not take reasonable care on the facts). You are asking the Tribunal to accept that a document disclosed during discovery is accurate and correct. The Tribunal will not want to prejudge this without having a proper change to examine that piece of evidence at trial.
  
• Your letter is unclear. Asking for the whole Defence to be struck out is ambitious as I assume there are other arguments raised. If you want the Tribunal to strike-out particular parts of the Defence you need to be specific and refer to the numbered paragraphs which should be struck.
  

I think you might be better off waiting until trial. If the employer is represented it will may have to cough up legal fees as trial approaches so this is not necessarily a disadvantage to you. It sounds like you have discovered some very damaging evidence ... perhaps an opportunity to write to the other side pointing this out and making a high settlement offer?

[honeybee13]

Hello there.

 

I've removed names from your post. They won't make any difference to the advice offered and I don't think it's in your best interests to have them in there. Better to keep it confidential.

 

My best, HB