Employment Tribunal Deadline

[donarebun]

Hi guys,

 

Thanks so very much for your response.

 

I'm truly grateful.

 

I will be honest with you guys becos you were honest and frank with me; I'm submitting the first draft ie the one with lots of religious statements.

 

Being religious is who I'm and I really can't hide it.

 

I hope you guys forgive me and continue to assist me as you have done.

[donarebun]

Hi everyone,

 

I wish to add a new claim to my existing claim.

 

I also wish to make a Pre-Action Disclosure citing Anglia Research Services Ltd -v- Finders Genealogists Ltd [2016] EWHC 297 (QB) as my precedence.

 

Please could any one advice on pitfalls and, most importantly, what tricks the other side might try to play and how to out manoeuvre them.

 

 

Regards

[steampowered]

Hello

 

Unfortunately Employment Tribunals operate under a different set of rules to the civil courts. I don't believe it is possible to ask for pre-action disclosure through the Employment Tribunal.

 

Even if this were a court case, you still couldn't ask for pre-action disclosure as you have already issued a claim.

 

I suspect you will have to wait until the normal employment tribunal disclosure stage, which comes after your claim has been accepted and a response issued by the respondent. The standard process of examining whether a claim can be accepted, the employer responding, a hearing being booked, disclosure taking place and finally a hearing taking place, does work so just follow it through.

[donarebun]

Hi Steampowered,

 

Did you check the case law I quoted?

 

It shows that Pre-action disclosure can be made after the proceedings has started.

 

Please check it, maybe I'm making a mistake.

 

 

 

NB

 

Anglia Research Services Ltd -v- Finders Genealogists Ltd [2016] EWHC 297

[BazzaS]

Hi Steampowered,

 

Did you check the case law I quoted?

 

It shows that Pre-action disclosure can be made after the proceedings has started.

 

Please check it, maybe I'm making a mistake.

 

 

 

NB

 

Anglia Research Services Ltd -v- Finders Genealogists Ltd [2016] EWHC 297

 

The case is available at : http://www.bailii.org/ew/cases/EWHC/QB/2016/297.html

 

I think SP had replied. I think the most relevant part of SP's reply (regarding the case you cite) was:

Unfortunately Employment Tribunals operate under a different set of rules to the civil courts. I don't believe it is possible to ask for pre-action disclosure through the Employment Tribunal.

 

Do you disagree with SP's reasoning?

[steampowered]

Did you check the case law I quoted?

 

It shows that Pre-action disclosure can be made after the proceedings has started.

 

Please check it, maybe I'm making a mistake.

I've briefly skimmed the case. It looks to me like pre-action disclosure was ordered in this instance because the disclosure sought related to a separate claim (i.e. not the claim which had actually been issued) ... hence the request was still technically pre-action disclosure.

 

The more important point to note is that the Employment Tribunals do not operate under the same rules as the courts. The courts have the power to order pre-action disclosure under the Civil Procedure Rules (although it is difficult to get pre-action disclosure, and you would often have to pay the cost of the other side dealing with the request). But the Employment Tribunals do not have this power.

 

What type of claim are you wanting to make, please? You will have more chance of getting the disclosure you want if that claim comes under the jurisdiction of the courts and pursue that separately, but you will have very little chance if the new claim comes only under Employment Tribunal jurisdiction.

[donarebun]

My present claim is Detriment suffered for making a Protected Disclosure.

 

The new claim I intend pursuing is Automatic Unfair Dismissal for making a Protected Disclosure.

 

I know the 3 months limit has past but since I STILL don't know the true reason for my dismissal I can't bring a claim.

 

Case Law I intend using for Reasonable Practicality is Marley Machines (UK) Limited v. Anderson [1996] ICR 78.

 

The Pre-Action Disclosure would reveal the true reason for the dismissal and I will then know if I have a case.

[steampowered]

My present claim is Detriment suffered for making a Protected Disclosure.

 

The new claim I intend pursuing is Automatic Unfair Dismissal for making a Protected Disclosure.

 

I know the 3 months limit has past but since I STILL don't know the true reason for my dismissal I can't bring a claim.

 

Case Law I intend using for Reasonable Practicality is Marley Machines (UK) Limited v. Anderson [1996] ICR 78.

 

The Pre-Action Disclosure would reveal the true reason for the dismissal and I will then know if I have a case.

 

Hello

 

Unfortunately a claim for automatic unfair dismissal is a claim which falls exclusively within the jurisdiction of the Employment Tribunals, and cannot be made in the courts.

 

The rules which govern the Employment Tribunals are the Employment Tribunal Rules of Procedure. Unfortunately these rules do not make any provision for pre-action disclosure. The Civil Procedure Rules do, but they only apply to the courts and not to the Employment Tribunals.

 

It seems to me that asking for some sort of disclosure in your current Employment Tribunal proceedings would be a better route. Although realistically I doubt you are going to get much disclosure until you get much closer to a full hearing (if you resolve the limitation issue and hence your claim is able to proceed).

 

If there is a document which the Tribunal genuinely needs to have in order to make a decision as to whether your claim is in time, then I guess in theory there may be grounds for the employer to be ordered to produce that document at this early stage. However I am struggling to think what that document that could actually be. There is unlikely to be a magic document labelled "reason for dismissal" ... you may have to invite the Tribunal to draw its own conclusions based on the circumstances of your case.

 

I agree that Marley Machines v Anderson is relevant for you, although I understand that case to be about the circumstances in which deadlines can be expected rather than a case about disclosure.

[donarebun]

Somehow I believe that the Employment Tribunal follows common law principles and procedures.

 

I will try and find out where.

 

I believe Pre -Action Disclosure is possible

[becky2585]

The main problem with what you're suggesting is that the ET will see that you're on a fishing expedition. You don't have proof that you were unfairly dismissed; only a hunch. It isn't enough at this stage. Disclosure could well prove exactly what you're thinking, but there is no provision for pre action disclosure in the ET rules, as SP says.

 

In the UK, the courts have to follow primary sources in the first instance (so legislation, such as the ET rules). Secondary sources such as case law are only binding in support of that legislation. So there won't be any case law supporting pre action disclosure in the ET because no statutory provision for that exists.

 

The only way around that would be a data subject access request, but even then they could refuse to comply by saying the request is disproportionate...

[donarebun]

Hi Everyone,

 

I just got this from the Tribunal Office.

 

I noticed that Rule 37 has been omitted; does that mean the Respondent's Application for Strike Out has been thrown out?

 

I tried to ask the Respondent but they are not responding.

 

What do you guys think?

 

I don't want to ask the Tribunal as clearly they are not too happy with the volume of correspondence.

[becky2585]

What did the previous order say? Impossible to comment without seeing the order of 6 June. Although I'd take that as a severe ticking off!

[donarebun]

What did the previous order say? Impossible to comment without seeing the order of 6 June. Although I'd take that as a severe ticking off!

 

Hi becky2585,

 

Attached is the Order of 6th which I have complied with.

 

Do you think it is a mistake for Rule 37 to be taken out.

 

Should I get clarification from the Tribunal Office even though they are pretty upset with the volume of correspondence.

 

Thanks

[becky2585]

It's a tad ambiguous isn't it.

 

 

Preliminary Hearings are now open hearings that can determine any issue. As it's been listed for a full day, I would imagine that the hearing has been listed to review your witness evidence, cross examine you upon it and then to determine whether the claim should be struck out. If it is permitted to proceed, Directions will be issued at the end of the PH. Just my educated guess, though.

[donarebun]

Hi becky2585,

 

I take it that you believe that the Application to Strike Out will still be held, even though the Letter excluded Rule 37 from the list of rules.

 

Do you advise that I contact the Tribunal as the Notice isn't really clear.

 

Remember they are not so happy with the volume of correspondence.

[becky2585]

I wouldn't contact them again. Because the ET now has the discretion to deal with any issue at all at a PH, I'd prepare for the strike out application and I would also take any dates of unavailability in case a hearing is listed. It's worth checking previous applications and orders as well to see if there are any other outstanding issues to be addressed. If you can agree an agenda in the standard format with the other side then that might help.

[donarebun]

Hi everyone,

 

Rule 60 of the Employment Tribunal Rules of Procedure 2013 states that;

 

60. Decisions made without a hearing shall be communicated in writing to the parties, identifying the Employment Judge who has made the decision.

 

I have just discovered that a Decision (without hearing) was verbally communicated to the other party without informing me until a week later.

 

Does that not amount to an Appearance of Bias?

[steampowered]

You are going to need to provide more details than that ... specifically what decision you are referring to and how it was communicated

[donarebun]

You are going to need to provide more details than that ... specifically what decision you are referring to and how it was communicated

 

So does it mean that this rule applies to certain decisions and for other decisions it doesn't apply?

[Emmzzi]

the basic principle of materiality will apply, yes

[donarebun]

the basic principle of materiality will apply, yes

 

ok

[donarebun]

You are going to need to provide more details than that ... specifically what decision you are referring to and how it was communicated

 

The decision to hear the Strike Out application was verbally communicated to the other party but the Tribunal Office waited a whole week to communicate that decision to me.

 

While you could argue that I wasn't prejudiced by the delay but I see bias in that the other party had been making a lot of calls to the Tribunal office.

 

She is a trained solicitor so she doesn't need to make so many calls to the Tribunal office!

[Emmzzi]

i think raising it will make you look pedantic and picky, and therefore not help.

[steampowered]

If you were informed in an orderly fashion of an upcoming hearing by a letter I think that should be adequate.

 

I suppose if one of the parties phones the Tribunal and asks about the point before the letter arrives that party may find out a bit earlier? Seems fine to me as long as both parties receive adequate notice of the hearing and thus noone is advantaged or disadvantaged as a result. Seems to comply with rule 60 providing that both parties receive written notice of the hearing.

[donarebun]

Hi everyone,

 

For the Preliminary Hearing the Employment Judge has refused to order the disclosure of documents.

 

I feel that this is wrong because in Qdos Consulting Ltd & Ors v Swanson UKEAT/0495/11/RN para 49 the Judge ruled that

 

“Such applications should rarely, if ever, involve oral evidence”.

 

Also in Arthur v London Eastern Railways Ltd ({2007} ICR 193) para 34 the Judge ruled that

 

“In my judgment, it is preferable to find the facts before attempting to apply the law. I do not think that this is a strike out situation in which assumptions have to be made as to the truth of the facts in order to decide whether there is a cause of action”.

 

Based on these two position it seems to me that the non-disclosure of documents is an error in law as the case will have to be decided by oral evidence only and assumptions will have to be made as to the truth of the facts.

 

If the Judge happens to believe me on that day, the other side will have grounds to appeal ie no evidence. And vice versa.

 

I don’t think that is in line with the Tribunal’s override objective of ensuring that the parties are on an equal footing.

 

What do you guys think?