Employment Tribunal - Disputed Disclosure and Trial Bundle

[Su0906]

I am really hoping someone can advise me here on the procedures for dealing with the following. I am the claimant and the respondent is disputing the majority of correspondence under S111 of Employment Rights Act. However, the Respondent does refer to this correspondence all the way through their particulars of response and is fundamental to my claim. I understand that S111 is not applicable in discrimination cases. My question is how do I go about getting this included in the trial bundle. I presume I make an application to the Judge to rule on this. I want the correspondence included as it clearly shows that the Respondent is lying in their particulars of response and is crucial to my case.

[SabreSheep]

S111

 

(1)A complaint may be presented to an [F1employment tribunal] against an employer by any person that he was unfairly dismissed by the employer.

(2)[F2Subject to the following provisions of this section]F2, an [F1employment tribunal] shall not consider a complaint under this section unless it is presented to the tribunal—

(a)before the end of the period of three months beginning with the effective date of termination, or

(b)within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.

(3)Where a dismissal is with notice, an [F1employment tribunal] shall consider a complaint under this section if it is presented after the notice is given but before the effective date of termination.

(4)In relation to a complaint which is presented as mentioned in subsection (3), the provisions of this Act, so far as they relate to unfair dismissal, have effect as if—

(a)references to a complaint by a person that he was unfairly dismissed by his employer included references to a complaint by a person that his employer has given him notice in such circumstances that he will be unfairly dismissed when the notice expires,

(b)references to reinstatement included references to the withdrawal of the notice by the employer,

©references to the effective date of termination included references to the date which would be the effective date of termination on the expiry of the notice, and

(d)references to an employee ceasing to be employed included references to an employee having been given notice of dismissal.

[F3(5)Where the dismissal is alleged to be unfair by virtue of section 104F (blacklists),

(a)subsection (2)(b) does not apply, and

(b)an employment tribunal may consider a complaint that is otherwise out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.F3]

 

 

 

 

OK please can we have some background so people can help you.

What is the disputed correspondence

 

What grounds are they refusing you to submit them?

[Su0906]

Hi,

 

Background

 

My claim is indirection sex discrimination and constructive dismissal. My employer requested I change my hours from part time to full time for the needs of the business. I advised I could not do this due to my child care commitments. Verbally my employer suggested a settlement agreement and proceeded to advertise my job. The settlement agreement was never forthcoming so I instructed a solicitor to protect my employment position, the majority of the WP letter from my solicitor deals with concerns of the way I was being treated with one final para suggesting a settlement. The numerous responses from my employer were not marked "WP" and did not deal with any suggestions as to how to resolve the situation but merely were aggressive and full of denials.

 

The Respondent is ascertaining within their defence that I never requested a job share which is why it was not considered. The correspondence between my solicitor and my employer clearly shows this is not the case as job sharing was requested on numerous times and ignored by the Respondent. I , on the advice of my solicitor at the time, also converted the majority of the text from my solicitors letter (excluding the one para about settlement) into a formal grievance from myself to my employer which the Respondent is also not agreeing to be included.

 

The Respondent's grounds for reefusal are that the correspondence falls under pre termination negotiations under S111 but I would disagree with this as I was trying to keep my job and nowhere does the respondent refer or discuss my termination from the company so my view is that this correspondence was dealing with internal grievances that I wished to get resolved. I would also say that the employer has behaved improperly within the correspondence as it is intimidating and aggressive with absolutely no suggestion of resolving anything at all.

 

Ironically, the Respondent refers to the above correspondence all the way through their particulars of response as a defence that they were dealing with the concerns under WP discussions but now do not want this correspondence included despite the fact they themselves are using them as their defence!

 

Hope this helps.

[SabreSheep]

Thanks that should help others.

 

Will flag this to the site team for you.

[SabreSheep]

FROM CAB

 

https://www.citizensadvice.org.uk/work/problems-at-work/employment-tribunals/preparing-an-employment-tribunal-case/#h-what-s-a-bundle-

 

What's a bundle?

 

A bundle is the file of documents that the tribunal will need to look at during the hearing. These documents are the evidence in your case. Usually your employer will produce the bundle, partly because they should have all the documents that need to be in it. If you have a case management discussion, you may want to ask for an order for your employer to produce the bundle.

You usually need to agree with your employer what documents should be put in the bundle. There can be disagreements about this. If so, two bundles may be produced – one by you and one by your employer. But tribunals don’t like this because it can make following the evidence difficult, so try to agree documents with your employer if you can.

 

If you have a representative, they will produce the bundle if they need to. If you don't have a representative and you need to produce the bundle, you should include in it all the documents that are important to your case, and that you want to refer to at the hearing. There is a standard way that the bundle should be put together.

 

If you don't have a representative helping you, there may be an organisation which can give you advice on what should be in the bundle.

For details of organisations that might be able to help, see What help can I get with a problem at work.

 

If you're producing the bundle, you need six copies - one for each member of the tribunal panel, one for the employer, one for you and one for the witnesses."

 

As long as either you or the employer refer to the items you want to include and they dont then I'm guessing it is upto them to argue they are inadmissible

[steampowered]

You mean to refer to section 111A of the Act, not s111. See http://www.legislation.gov.uk/ukpga/2013/24/section/14/enacted.

 

The commonly accepted interpretation of s111A is that it does not apply to discrimination claims. See the ACAS guidance on this at http://www.acas.org.uk/media/pdf/j/8/Acas-Code-of-Practice-on-Settlement-Agreements.pdf. I find it very difficult to see how the employer could possibly on 111A in circumstances where you are alleging discrimination.

 

I do not think that your grievance can sensibly be categorised as 'pre-termination negotiations', and therefore should not be covered by s111A in any event.

 

I would suggest putting this to the employer in writing. If they still refuse to include the correspondence in the bundle, you should suggest that an 'agreed bundle' and a 'disputed bundle' are prepared. The disputed bundle would contain the disputed correspondence. You would draw the tribunal's attention to that at the beginning of the hearing and ask them to decide on admissibility.