Advice Regarding Employment Tribunal Hearing Required Please

[Harr1]

Hello,

 

Sorry if this is the wrong place, but I'm new here and it's taken me 2 days to find out how to do this.

 

I have spent a while going through the treads on this website which relate to the ET. I wondered if there was anyone who could give me some pointers on what I should be doing in order to represent my son at his ET at the beginning of October.

 

 

Brief summary of case:

 

⦁ November 2011 son sent in a written qualifying protected disclosure about absence due to ill health, the state of his working environment, and the treatment he had been receiving from his new appointed line manager;

 

⦁ Guaranteed promotion by the PM, but was turned down because the PM said he lacked the ability to lead a team of people and because of his communication skills; although he had been carrying out the role of manager/team leader for at least 18 months;

 

⦁ Negative Treatment became a lot worse since handing in letter;

 

⦁ Being told a colleague could speak better English that my son;

 

⦁ Being told by a manager that a child could do my sons job with his eyes shut;

 

⦁ Being asked if my son was as stupid as he sounds;

 

⦁ That my son had no common sense;

 

⦁ A manager telling another co worker that he suspected my son of stealing;

 

⦁ The unlawful searching of my sons bag;

 

⦁ PM lying to OH in order to gain my sons medical records;

 

⦁ Two false allegations made against my son after he told the PM that he was going with a grievance and taking it to HO.

 

⦁ Being phoned at home and threatened with dismissal, relocation & further suspension if my son didn't drop the grievances;

 

⦁ Being subjected to a 5 hour meeting in which the Store manager repeatedly refused to listen to my son and his representative, regarding not wanting to drop 2 grievances;

 

My sons disabilities are Verbal dyspraxia and global cognitive dysfunction.

 

Sent in ET1 in Feb 2012.

 

Attended 3 CMD's.

 

Case began in August, but was delayed after 3 days (halfway through my sons being cross-examined), due to the ill health of one of the judges.

 

Case has been re-listed for the first week in October and it is expected to last 5 more days.

 

 

I suppose I'm really after some advice regarding how I deal with their solicitors, who, to be truthful, have been awful in regards to including information we want etc. To be honest it sounds as though they are acting the same way as most solicitors do in these cases. So I guess I'm just asking how to play them at their own game.

 

Right from the start the EJ has suggested that the respondent take up mediation, but they have declined all the way through. Even on the first day of the hearing the EJ allowed both parties a 30 minutes, in the hope that the other side would take up mediation, but again they declined. So we went onto the full hearing.

 

How do we go about proving points of law, which is all I keep reading about.

 

We are now happy with the bundle, although we have additional papers we are adding.

 

We can't afford to pay for a solicitor, we don't have legal cover on our home insurance, my sons income is too high to qualify for legal aid (by £30), so up to date we have had to do everything ourselves i.e. witness statements, gathering evidence, attending 3 CMD's, corresponding with their solicitors etc.

 

I really would appreciate any help or advice on how I go about representing my son at the ET.

 

Thank you in advance for any replies

Edited September 10, 2013 by Harr1

[honeybee13]

Hello and welcome to CAG.

 

You need the employment forum, so I'll move your thread there and leave a short term redirect from this forum for you to follow.

 

The guys should be along over the course of the day.

 

My best, HB

[Harr1]

Hello Honeybee13 and thank you very much :0)

[Grotesque]

That's a very long litany of grievances; can he can prove each one evidentially? In the meantime keep a record for the court of any procedural misdemeanours the respondants commit.

 

On the ET1 he will have indicated the reason for the submission (where the burden of proof lies depends on the nature of his claim), those details, and your preferred remedy? Remember full disclosure works both ways, if you are adding material to the bundle.

Edited September 10, 2013 by Grotesque

[Harr1]

Hello Grotesque,

 

Yes he is able to prove that he had mentioned all the issues in various meetings and letters that he had sent in. All of this has been included within the original bundle. We have sent additional papers that we want adding to the bundle to the ET, as their solicitors don't seem to be adding everything we have asked for.

 

I hope I've answered your questions correctly, although I doubt it some how. I'm not the sharpest tool in the box!

[Harr1]

He is claiming disability discrimination and harassment. He is still working for the company and has been for 7 years. All four of the managers involved in the ET claim have been relocated.

[Grotesque]

Even if they had all left, the company would still have to defend the claim.

Edited September 10, 2013 by Grotesque

[Harr1]

Yes they are. They haven't left the company, they have just been relocated to different stores.

[Harr1]

I wondered if somebody could answer this question for me please.

Due to the delay of the case we have been able to go through all the evidence that the other side are using with a fine tooth comb. In doing so we have noticed a few things that just don't add up. We have been told that we can only ask questions that have already been asked by the other side, is this true? If it is how can we bring up the problems/errors that we have noticed in a few of the documents?

[SweetLorraine]

....We have been told that we can only ask questions that have already been asked by the other side, is this true?....

 

Hi Harr1,

 

who told you that? And in relation to what? You should be allowed to shape your own case/claim, it should not be wholly dependant on the Respondent's parameters.

[Harr1]

Hello SweetLorraine,

 

The respondents solicitor told us that, when we told him that the date the PM said she had interviewed our son for a TL role, took place when he was off ill with IBS and depression. He said that we could only ask her that if he had mentioned it when questioning her. This doesn't seem fair.

[Grotesque]

Yessss... it's your claim, not theirs! That was curious advice to say the least.

 

On edit: Just seen H's reply. Bearing in mind WHO he works for-!

[SweetLorraine]

You can prepare your own cross-examination questions - a Respondent's legal reps will try to take liberties with unrepresented claimants. If there is a whopping error in a Respondent's witness statements of course they will not want it to be highlighted in the hearing.

 

Could I inject a note of caution - it doesn't help to be discussing too much with the other side's solicitors - it is an adverserial process - you are dealing with people who have no intention of being reasonable!

[Harr1]

Thank you SweetLorraine for your reply,

 

Yes I think we realized a little too late, regarding telling them about some of the things we had noticed.

On reflection we have obviously given them a heads up - which means they will be able to prepare their defense regarding the issue we have mentioned to them.

However, the facts are still the facts, regardless of how they try and defend their actions.

The first 3 days of the hearing went well, although our son is the only person so far to be questioned, so we haven't had o do any work yet. We feel the real work is going to be in the cross examination of the people named in the claim. We are just worried that we will do a really bad job at getting the important points across and how we relate this to areas of the law.

[SweetLorraine]

Hi Harr1,

 

once bitten, twice shy! I only know from bitter experience. I made the mistake of trying to be reasonable with the opposition beforehand - this was then twisted and used against me in front of the judge. Anything to wriggle away from the facts. Dirty tricks, deftly dealt without a flicker of remorse.

 

In terms of preparing cross examination the following website might help a little

 

http://etclaims.co.uk/tag/cross-examination/

 

The book mentioned on that website has a few useful sections on cross examination if you wanted to buy it, or loan it from your local library. Goggling can yield useful advice as well.

 

http://www.bailii.org/ can help you with finding case law to (possibly) help support your claim.

 

It would be useful if any other contributors have any tips on using the bailii website effectively - it can through up 100s of cases - I'm not sure how you sift through them to find the most effective to use at a hearing.

[Harr1]

Hello again SweetLorraine and thank you once again for your reply.

 

Sorry to hear about your negative experience, although "our" types of experiences don't seem too rare, which is a shame.

 

I hope you were successful in your case :0)

 

It seems the more helpful we were being, the more aggressive their solicitor became in his questioning our son. So we've now taken to only communicating with them via email.

 

I have to say the EJ appears to be fantastic and she has allowed every disclosure that we have asked for (although the respondents don't seem to be listening to everything!), and she has also agreed to 4 witness orders. She has so far (fingers crossed), been an absolute diamond in assisting us where she can obviously see we are unsure. She was the EJ at two of the CMD's and she said that she wanted to see our sons case through to the end, which we are very happy with, as she knows what the case entails.

Thank you very much for the links, I will be sure to take a look at them now, as I surf this site.

Once again many thanks for taking the time to respond.

[steampowered]

Legal aid is generally not available for ET cases, even if you meet the income thresholds.

 

It is difficult to comment without knowing the full facts. I just want to caution you against relying too much on small discrepancies. If you only noticed the discrepancies because of a significant delay it is not likely that they are central to your case. It is quite common for litigants-in-person to get fixated on one particular point and miss the big picture.

 

Make sure you have the "big picture" very clear in your mind and that this is clearly communicated to the Tribunal. The three key points are what claim you are making; what events that claim is based on; and the evidence supporting your version of contested events.

 

Based on the very brief details you have posted, it sounds to me like the key aspects of your case will be (1) proving that he has a disability within the meaning of the Equality Act 2010 and (2) proving that the negative treatment he suffered was a result of that disability. Another common trap that some litigants-in-person fall into is to focus only on slagging off the employer without properly linking the negative treatment to the disability.

[Harr1]

Hello Steampowered and thank you very much for your reply.

 

I completely understand and take on board, what you are saying in regards to not fixating on small discrepancies - however the dates are quite important in relation to some of the allegations that have been made.

 

Regarding proving disability within the meaning of the disability act. This was disputed by his employers. Although they had been aware of his disability since 2009. As a result he has had to undergo an MRI scan, and various assessments, which resulted in various medical report being written up. All of this information was passed on during the various CMD's, along with proof that he had SEN until the age of 18, which was just before he started working for this company.

 

To be truthful I thought that once the ET had this information, had looked over it and then given the go ahead for the claim, that they had accepted that he did have a disability which fell within the meaning of the disability act, am I wrong on this point? As we were told that if the ET didn't think he had a disability that fell within the meaning of the disability act, then he wouldn't have a case, therefore the case wouldn't go ahead.

 

Regarding point 2 of your post. Unfortunately although most of the comments are a case of his word against their word, we are hoping the documentation we have will prove most of his points i.e. witness statements, comments that have been made in meetings, how medical records were obtained, false allegations etc.

 

Reading the links that Sweet Lorraine has posted are proving to be very informative in regards to cross examining.

 

I just have to do as you have said steampowered and focus on the important stuff.

 

Thank you once again for taking the time to respond.

[Emmzzi]

You will indeed need to prove the disability and that the employer knew about it. Sounds like you have good evidence though.

[phaitun]

Good luck with the ET, sounds like you have a good Judge overseeing the matter. Solicitors for the other side are NOT to be trusted as already mentioned.

As long as you have disclosed everything to the other side, recorded all of your requests and the failures of the other side to play by the rules and try to make a point of getting what you need by asking for the required things the correct way the judge will be sympathetic

 

In relation to using bailii use the advanced search function and put the key word you want to use in the 'boolean' search box using " " this will limit the results to specifics.

 

From the hundreds of cases i have read it seems that medical evidence, and the actual effect of the ailment on the claimant is what is discussed/disputed. So for example if it takes your son longer to perform tasks that someone without his condition does then he may well fit the definition.

 

Another source of good examples and case law is the 'stammeringlaw' website, may be a few golden nuggets there regarding problems with verbal communication and other similar problems.

 

Well done to your son and yourself for fighting the bullies. Sounds like youve done a great job so far.

[Harr1]

Hello Emmzzi and thank you very much for your comment.

 

We hope we have enough evidence regarding our sons disability, otherwise we have no idea where to go next regarding how to prove it.

 

I have to say the respondents solicitors are not disputing that they knew about his disabilities, they are disputing that it meets the disability act. In the beginning they disputed the fact that they even knew he had a disability. But we have so much correspondence regarding the disclosure of my sons disabilities, that in the end they agreed they did know.

 

If the EJ didn't think our son met the criteria for the disability act, would she not have stopped the claim going ahead?

 

Thank you again for taking the time to respond.

[Harr1]

Hello Phaitun and thank you very much for taking the time to respond and for the good luck message.

 

Also thank you very much in regards to the way to use the bailii advanced search and,for the information regarding the stammeringlaw website. I will no doubt spend another day reading, reading reading!

 

There really is a wealth of information out there, as long as you know the sites to search.

 

Once again many thanks.

[Harr1]

I forgot to mention...

 

Last week we went to the CAB for a pre- arranged appointment. They referred our sons case to FRU. Yesterday we went to Fru and because our sons case had already started, they couldn't take it on. Does anyone know of any other associations such as Fru, who would be willing to take on a case that had been started?

 

Thank you n advance for any reply.

[steampowered]

Hi,

 

The statutory definition of a disability is a physical or mental impairment which has a substantial and long-term adverse effect on ability to carry out normal day-to-day activities. See http://www.legislation.gov.uk/ukpga/2010/15/section/6/prospective. There is guidance on how this test is to be applied here: http://www.bailii.org/uk/cases/UKEAT/1998/57_98_2110.html. There is a 60-page government pamptlet on the definition of disability here: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/85010/disability-definition.pdf.

 

It is important to appreciate that this is a restrictive test. Please understand the importance of the words 'day-to-day activities'. You will need to be able to point to the day-to-day activities which are affected by your son's condition. There is guidance on which kind of activities count in the pamphlet.

 

If the Tribunal believed your son's claim was completely hopeless it could have been struck-out at the CMC stage. The fact that your claim was not struck out should not be interpreted as a decision. The Tribunal has not yet decided whether your son has a disability or not under the s6 Equality Act 2010 definition. This issue will be decided at the hearing, based on the evidence you produce.

 

I'm quite surprised by what you are posting about FRU. As far as I'm aware FRU only takes on cases which have already started. It is actually a requirement to have a hearing date from the Tribunal before a case can be referred to FRU and FRU does not assist with cases which have not yet started. Generally FRU will only talk to the referral agency and will not talk to you directly until a volunteer takes on the case. It sounds like there may be a misunderstanding here.

[phaitun]

The ET will consider the medical condition, the effect on normal day to day things (answering the phone, talking to custmoers, colleagues, writing reports and similar things).

 

The case law suggests for an example that that a top concert pianist unable to play to the same level is not 'normal activity' however activities such as filling out an application form for a job, playing football for fun, recreational swimming, going to a function are all normal activities. There are loads of examples. It doesnt have to be that everyone does the activity just that it is considered to be a normal activity.

 

The adverse effect has to be substantial i.e more that 'minor or trivial' so IMO consideration will be given as to whether your son has to spend more time doing 'normal' activities, avoids certain situations. needs help in doing thins that are considered to be normal'. If there is easily evidenced situations such as this then this will help to prove the 'substantial adverse effect'

 

Also the disability or impairment has to have lasted or is likely to last more than 12 months. recurring ailments such as arthritis, asthma etc can all be covered.

 

good luck and happy reading. bulliesonline also has some great case law and is easily searchable using ctrl and f