Tribunal advice needed - complex question

[smokejumper]

Ive seen it , while checking case histories, where one side has been "debarred"

[steampowered]

My experience is that, sadly, people regularly get away with failing to comply with Tribunal orders for the disclosure of documents. The same is also true of the court system although the courts are now tightening up.

 

It is not uncommon to see people debarred from producing evidence due to failure to comply with orders, but I would say this is the exception not the norm and is generally reserved for serious or repeat offenders. I personally would not get too excited about this kind of stuff unless it genuinely makes a significant difference to the case.

 

I have never heard of anyone getting a criminal conviction or a fine for this kind of stuff, although I guess it has probably happened to someone somewhere. It is my understanding that issue of fines is not in the jurisdiction of the Employment Tribunal.

[smokejumper]

Just got a letter from the tribunal and it states," that parties who bring tribunal claims are under a duty to progress them".

 

I have been late in complying with the judges orders.

 

So it seems they aren't too bothered about time scales they have set.

[steampowered]

The point to remember is that the Tribunal does not employ someone to sit there and monitor all the cases that are going on. Accordingly noone would notice that something has been filed late unless one of the parties writes in to tell the Tribunal about it requesting some sort of order. Otherwise the judge wouldn't find out until the hearing (and might not even notice if everything is sorted by then).

 

That said, I would always advise being very careful to comply with the time scales even if the other side does not. It shows disrespect to the Tribunal. If it is obvious that you have not complied with court orders, especially if that failure is serious or repeated, it will wind-up the judge. It also adds to the risk of being ordered to pay costs - generally this kind of thing would not be enough by itself to justify a costs order, but if other aspects of your case are misconceived or unreasonable it all adds to the general picture.

 

With disclosure of witness statements, what I suggest is sending the Respondent's representatives an email on the deadline or the day before stating that you are ready to exchange witness statements, and asking if they are ready too. Don't send them your statement until they have confirmed that they are ready to exchange. If they aren't ready to exchange and there is delay, you will then have the email to prove whose fault it was if you need to.

[RCW]

okay next instalment - I received a note today from the other party's solicitors - they now have the case management order and are preparing a bundle. They have advised they will not include two of my documents in the evidence bundle. One is a signed affidavit (on public record) written by the respondent some weeks ago in relation to a case in the high court and the second is a proposed compromise agreement which they have refused on grounds it was "without prejudice".

 

Does the Respondent have authority to refuse evidence?

 

Both docs are central to my case, the first includes the respondent stating on public record that I was made redundant (which is central to the EDT, and thus central to the jurisdiction matter of the PHR). It discredits the respondent and will hopefully support a motion for estopping the respondent from denying I was made redundant.

 

The second document was originally issued without prejudice. I intend to submit this as evidence "of any other wrongdoing" as outlined in the third last paragraph here: http://www.wisewouldmahony.com.au/index.php?id=308 Apparently "without prejudice" is not valid in all circumstances. In the document (a proposed compromise agreement) the respondent refers to the dismissal "by reason of redundancy". This fundamentally supports my point that (a) the respondent is lying on record in the tribunal, or (b) they were prepared to lie in the document, either way it demonstrates they are prepared to retro-alter the dismissal reasons to suit their needs - which is wrongdoing.

 

Can I force the inclusion of these docs in the evidence bundle?

 

Is it likely the Without Prejudice evidence will be accepted?

[Pusillanimous]

You can apply for a Preliminary Hearing to discuss these matters. Best get a lawyer to draft the request. Mark it Interlocutary Application.

[RCW]

Thanks but this is already in relation to a preliminary hearing scheduled for Oct 28th. Are there different types of preliminary hearing? Is it likely a further pre hearing would be granted?

[RCW]

One more thing...

 

The respondent's solicitors have asked me to send them documents relating to my new employment (such as my offer letter and new contract) which they intend to use against me.

 

Am I obliged to provide this? Surely not...

 

Excerpt from correspondence:

 

 

"Additional documents required

Please forward to me for inclusion in the bundle any documents relating to the date you started work at [new company] – for example, your offer letter and contract of employment.

 

I hope to have the paginated bundle, including my client’s documents, to you tomorrow so that you have it over the weekend to refer to in your witness statements. Therefore, please send me your [new company] documents as soon as possible."

[Emmzzi]

you expect them to provide documents you can use against them, don't you?

 

Good for the goose, etc

[RCW]

Well... no - I hadn't requested any docs from the respondent. Any examples of what I should be asking for?

[steampowered]

I don't want to comment on the affidavit without knowing what it says or how it relates to your case.

 

You can't include the compromise agreement. You cannot use evidence of settlement negotiations as evidence - it is covered by 'without prejudice' privilege. It is also not relevant to your case. Anything post-dismissal is not relevant to the issue of liability. Your claim is based on the dismissal, it is not based on whether or not the employer is a nice company.

 

Regarding their request for your contract/offer letter, what have you been ordered to disclose? In any event, if you don't disclose something here this would work against you. Part of an award for unfair dismissal would include an award for lost wages. This award will not cover any period after you had found a new similarly paid job. If you don't provide evidence of when you started a new job you can expect that the Tribunal will resolve any doubt against you and that any financial award made in your favour will be deducted accordingly.

[mariefab]

Steampowered is right, you can't use anything related to the compromise agreement.

 

You might be able to use the 'affidavit'.

It depends on several things, starting with, what exactly do you mean by 'on public record'?

 

As for the documents they've requested relating to your start date:

What's the date on your offer letter?

If the date is before 28th February; it's to your advantage to show that you procured new employment before their alleged breach.

Although it'll probably show a start date in April, send it anyway.

But take half a dozen copies of it with you to the hearing in case they don't include it in the bundle.

 

Unless you have another document from your new employer confirming your start date, you'll need to send a copy of the first page of your contract.

[Pusillanimous]

Thanks but this is already in relation to a preliminary hearing scheduled for Oct 28th. Are there different types of preliminary hearing? Is it likely a further pre hearing would be granted?

 

 

Apply for the issue to be included within 7 days of the hearing and make it clear you have copied it to the other party.

 

A 'Without Prejudice' document can only qualify for the label it if is a genuine WP *only*. I believe you are arguing the WP is an abuse of process to veil dishonest or unacceptable behaviour by the other side? There is case law on this, but you need to persuade the tribunal the WP doc was not a genuine WP. For example, intimidation.

 

PS If as steampowered states it is post-dismissaL, don't waste your time with it.

[RCW]

apologies for the radio silence... PHR on Monday!

 

Interestingly the Respondent contacted me on Friday (prior to Monday's submission deadline) asking to settle out of court and pay everything owed etc... we met for a coffee, discussed the proposal and I agreed to settle. I followed up by email confirming happy to settle etc. They then made no further communication and have not settled. I was a little suspicious on Friday and spent the weekend preparing final docs for Monday just in case... hoping I wouldn't need them. I asked on Monday and had a "just waiting for confirmation" response and I've heard nothing since.

 

Bizarre.

 

Anyway the hearing is on For Monday. I have the Sworn Affidavit back in the evidence bundle which is great as it demonstrates a case of the respondent lying to the Tribunal. The "Without Prejudice" doc is out for now. This case is also becoming incredibly complex, it won't help to go into all the details but as a brief snippet:

 

The Chief Exec who made me Redundant has subsequently resigned and has provided a witness statement in support of my case. Upon discovering this on Mon, the respondent has applied to "Join" said ex CEO (and former founder/shareholder) to the Respondent in the Hearing. I'm not even sure how this would work but technically it means that he would be testifying against himself in some manner... yeah really

[Pusillanimous]

If it is not a company limited by liablity (i.e., Ltd or LLP) then the individual members do become liable. Sounds like a very interesting case!

[RCW]

Haha... you'd think. Well it is actually a Ltd company. The Respondent has claimed that the ex-CEO was working as a disqualified Director therefore cannot claim any limitation of liability, apparently under these rare circumstances he becomes personally, jointly and severally liable for the debts of the company over the duration of his directorship (which includes the date of my dismissal but not the date of the Tribunal). Application remains to be accepted/declined.

 

Personally I would welcome a supporting witness on the opposing bench... I think.

Edited October 24, 2013 by RCW

[steampowered]

That sounds very odd. I can't imagine the Tribunal would want to sort out arguments about whether the company itself and its former Director should be jointly and severally liable for the claim.

[Pusillanimous]

The Respondent has claimed that the ex-CEO was working as a disqualified Director therefore cannot claim any limitation of liability, apparently under these rare circumstances he becomes personally, jointly and severably liable for the debts of the company over the duration of his directorship (which includes the date of my dismissal but not the date of the Tribunal). Application remains to be accepted/declined.

 

Personally I would welcome a supporting witness on the opposing bench... I think.

 

RCW It is a criminal offence for a disqualified director to breach the disqualification. Subject to imprisonment. Whilst it might not be the tribunal's jurisdiction to rule on his legitimacy, you might do well to distance yourself from this character. Use his witness statement by all means but make clear you view him as a hostile witness.

[Pusillanimous]

That sounds very odd. I can't imagine the Tribunal would want to sort out arguments about whether the company itself and its former Director should be jointly and severally liable for the claim.

 

They do have to do this quite a lot as it is important the correct parties are identified as to liability issues. If a party has applied to have this amended the tribunal are obliged to make a ruling on it.

[steampowered]

They do have to do this quite a lot as it is important the correct parties are identified as to liability issues. If a party has applied to have this amended the tribunal are obliged to make a ruling on it.

 

I would have thought that the ET would only resolve the employment claim, with any follow-on claim by the company against its former director for a contribution towards the ET award being dealt with by the company suing its former director in couty court?

 

I could be wrong though.

[smokejumper]

Is it possible that there is a hidden agenda here, as the the company seems very clever and clued up on how to dodge this payment.

[RCW]

Is it possible that there is a hidden agenda here, as the the company seems very clever and clued up on how to dodge this payment.

 

Hi Smokejumper - yes they have hired a team of solicitors that have far outweighed the cost of the claim. The not so hidden agenda is in response to their finding out the ex-director has issued a statement supporting my case. They are presumably of the opinion that if he is joined in liability to the Respondent he will be unlikely to continue to support my case.

[Pusillanimous]

RCW/ steampowered: It does seem unusual that a company would want to air its potential illegal activities in a court of law! However the OP need not concern himself about correct identity of respondent as the tribunal will sort all of that out, as long as the claimant's intention is clear.

[smokejumper]

I wish you all the best, sorry I can't help any more than that.

 

These solicitors are very clever it is almost like a game of chess.

 

One thought though, if your new witness has already provided a statement, then I don't see how he can get round that if he doesn't continue to support you.

 

Hopefully he has already done enough damage.

[RCW]

Yeah it's like a really long, drawn out game of angry chess. When you don't know the rules and you've gambled your life savings on the outcome. Then your opponent hires a Grand Master and blackmails your castle.

 

No match for the consumer action group though!

 

Even if I lose it's been a valuable experience. I've learnt a phenomenal amount about legal process and Employment Law which over the course of my lifetime will be of more value than the money I'm claiming today. Stressful but priceless. But enough loser talk for now... let's wait for the PHR outcome first!