Employment Tribunal Deadline

[steampowered]

You are going to need to provide a lot more details - such as what your case is about, what the hearing was about and what documents you were requesting - if you want to receive sensible input.

 

In any event it is probably a bit academic now as the Tribunal has made its decision. It is very difficult to appeal case management orders.

 

The quote from Qdos v Swanson is not relevant. This is talking about how there is no oral evidence given for a strike-out. There isn't usually any documentary evidence given either - strike-outs are very short hearings designed to get rid of obviously rubbish cases, they don't look at evidence. In a strike-out the tribunal (or court) assumes everything the claimant is saying is true and then strikes-out the case if the claimant would not win the even if he proves everything he is alleging.

[donarebun]

You are going to need to provide a lot more details - such as what your case is about, what the hearing was about and what documents you were requesting - if you want to receive sensible input.

 

In any event it is probably a bit academic now as the Tribunal has made its decision. It is very difficult to appeal case management orders.

 

The quote from Qdos v Swanson is not relevant. This is talking about how there is no oral evidence given for a strike-out. There isn't usually any documentary evidence given either - strike-outs are very short hearings designed to get rid of obviously rubbish cases, they don't look at evidence. In a strike-out the tribunal (or court) assumes everything the claimant is saying is true and then strikes-out the case if the claimant would not win the even if he proves everything he is alleging.

 

Hi steampowered,

 

My apologies if I misunderstood you here;

 

Are you saying that the rule is that assumptions HAS to be made in strike-out hearings?

 

So that means the Judge in Arthur v London Eastern Railway was wrong.

 

Except I didn't understand you I believe your position is contrary to the two case law above.

[donarebun]

For clarity sake let me state my case again.

 

I made a protected disclosure.

 

I suffered detriments and my employment was terminated.

 

I had very little evidence so I didn't pursue it (Relevant case law in support Chagger v Abbey National 2009 para 92)

 

I was not getting good reference from my previous employer so I made a SAR

 

I discovered that malicious statements had been placed on my file (most prominent one was that I was found sleeping while in actual fact on that day I was on a training course 50 miles away)

 

I now had evidence to support my claim of victimisation and discrimination

 

I brought a claim to the Employment Tribunal for

 

1) Continuous Discrimination ie failure to provide reference citing Woodward v Abbey National

 

2) Previous victimisation as I now have the evidence (Cambridge and Peterborough Foundation NHS Trust v Crouchman).

 

A Preliminary Hearing has been scheduled for Jan 2017.

 

I need the evidence to prove my case.

[steampowered]

OK, and what was the decision in the preliminary hearing which you object to?

 

What documents are you asking to be disclosed - it sounds like you already have the documents you need from your SAR?

[Laura Thyme]

For clarity sake let me state my case again.

 

I made a protected disclosure.

 

I suffered detriments and my employment was terminated.

 

I had very little evidence so I didn't pursue it (Relevant case law in support Chagger v Abbey National 2009 para 92)

 

I was not getting good reference from my previous employer so I made a SAR

 

I discovered that malicious statements had been placed on my file (most prominent one was that I was found sleeping while in actual fact on that day I was on a training course 50 miles away)

What's contained in your HR file and what's given out as references to potential employers requesting them can be very different things. If you want to know what references have been given out, you need to SAR the recipient. Recipients are not exempt from having to supply copies of references supplied to them in confidence, but senders (previous employers) are not required by the ICO to provide you with copies of confidential references given out.

 

If you have had a job offer revoked as a result of a negative reference which is not based on fact (such as what you mention above about being found asleep when you were actually away), you could have a case to sue for negligent misrepresentation. This is separate from any unfair dismissal case, even when most unfair dismissal settlements end up including an agreed reference to be provided as part of the settlement.

[donarebun]

If you have had a job offer revoked as a result of a negative reference which is not based on fact (such as what you mention above about being found asleep when you were actually away), you could have a case to sue for negligent misrepresentation. This is separate from any unfair dismissal case, even when most unfair dismissal settlements end up including an agreed reference to be provided as part of the settlement.

 

I believe Negligent Misrepresentation is under contract law not employment law.

 

I have never heard of such a case before an employment tribunal.

 

My case is already in the employment tribunal

[donarebun]

OK, and what was the decision in the preliminary hearing which you object to?

 

What documents are you asking to be disclosed - it sounds like you already have the documents you need from your SAR?

 

I'm objecting to the decision not to order disclosure of document

 

Most of the document I received, as a result of my SAR, are redacted so I can't prove who said what.

[Laura Thyme]

I believe Negligent Misrepresentation is under contract law not employment law.

 

I have never heard of such a case before an employment tribunal.

 

My case is already in the employment tribunal

I did say it was a separate case for damages incurred as a result of a bad reference, and it would be in tort rather than contract, especially if you haven't got an agreement with your ex-employer to provide an agreed reference. Without it there is no contract but there's still a duty of care.

[Laura Thyme]

I'm objecting to the decision not to order disclosure of document

 

Most of the document I received, as a result of my SAR, are redacted so I can't prove who said what.

That's usually the case. When I sent a SAR to ex-employers years ago, I got a whole box with reams of paper, but most of it was useless as it was just routine HR files and discussions about shifts, holidays, etc. Six years working for the company and there wasn't a single email or any other communication where they had something to say about me, and some pages had more black marker than visible text.

[donarebun]

I believe "failing to follow the binding decision of a superior tribunal" is an error of law.

 

Although I have not yet heard it used in the Employment Tribunal

[donarebun]

Hi everyone,

 

If I make an Application (eg Application to Amend Claim Form) is it not my responsibility to put forward my case?

 

Also if the other side has put in an application (eg Application to Strike Out) is it not their responsibility to put forward their case?

[steampowered]

If I make an Application (eg Application to Amend claim formicon) is it not my responsibility to put forward my case?

Not really. The purpose of the claim form is to set out what the Tribunal is supposed to decide. The other side / Tribunal aren't making a decision on whether your case is good or not by accepting the amendment. They are simply accepting whether or not it is an issue that the Tribunal ought to decide at trial.

 

Also if the other side has put in an application (eg Application to Strike Out) is it not their responsibility to put forward their case?

No, they are the ones asking for your case to be struck out, so you would expect them to rubbish it.

 

If they are the Defendant they don't have to put forward anything. They would just have to show that your claim is so weak so as to not justify a trial.

[Noah1]

If your case is strong although they aplied to strike it out, the Tribunal won't allow it. I know of someone whose case was suppose to be striped twice, they selfrepresented and won.

[donarebun]

If your case is strong although they aplied to strike it out, the Tribunal won't allow it. I know of someone whose case was suppose to be striped twice, they selfrepresented and won.

 

Thanks

[donarebun]

Error of Law: Failure to take into account all relevant consideration.

 

A Preliminary Hearing to hear issue of Strike Out under Rule 37 of the Employment Tribunal Rules of Procedure has been fixed for the 6th of January 2017.

 

The Employment Judge has refused to order the disclosure of documents.

 

This is an error of Law as the Employment Judge failed to take into account the ruling made in Qdos Consulting Ltd & Ors v Swanson UKEAT/0495/11/RN para 49 that strike out application should, rarely, if ever, involve oral evidence.

 

This position is also emphasized in Arthur v London Eastern Railways Ltd ({2007} ICR 193) para 34 the Judge ruled that; “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”.

 

By refusing to order the disclosure of document prior to the Preliminary Hearing the Employment Judge clearly failed to take into account the ruling by a superior court in which he/she is bound.

 

There are lot of factual disputes in this claim and only a full disclosure would allow the Judge make a ruling that is not open to appeals and counter appeals.

[donarebun]

Error of Law: Failure to take into account all relevant consideration.

 

A Preliminary Hearing to hear issue of Strike Out under Rule 37 of the Employment Tribunal Rules of Procedure has been fixed for the 6th of January 2017.

 

The Employment Judge has refused to order the disclosure of documents.

 

This is an error of Law as the Employment Judge failed to take into account the ruling made in Qdos Consulting Ltd & Ors v Swanson UKEAT/0495/11/RN para 49 that strike out application should, rarely, if ever, involve oral evidence.

 

This position is also emphasized in Arthur v London Eastern Railways Ltd ({2007} ICR 193) para 34 the Judge ruled that; “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”.

 

By refusing to order the disclosure of document prior to the Preliminary Hearing the Employment Judge clearly failed to take into account the ruling by a superior court in which he/she is bound.

 

There are lot of factual disputes in this claim and only a full disclosure would allow the Judge make a ruling that is not open to appeals and counter appeals.

 

 

Please guys your view on the above arguments, any errors, pitfalls etc

 

Thanks

[donarebun]

Dear All,

 

Just a short question;

 

When I made the Subject Access Request, I requested for a particular email.

 

The Respondents’ Secretary claimed that she couldn’t find the email but now the email has been found.

 

The Respondents are now claiming that they didn’t need to disclose the email as I didn’t have a right to the email in the first place.

 

Even if (and that’s a big if) I didn’t have right to the email but didn’t they lose their privilege by lying?

 

Your thought please and any case law in support would be appreciated.

 

Please note that I said it is a big if, that means I don’t accept that I didn’t have rights to the email under the DPA1998

 

 

Thanks once again.

 

 

 

Hi Guys,

 

Just to inform you I have found a relevant case law for this situation,

 

it is Nagarajan v London Regional Transport [2000] 1 AC 502, 510-512,

 

There the Judge ruled that the act does not in itself need to be discriminatory but the motive behind the act.

 

So here failure to provide that particular email (in particular the false statement regarding its existence) is clearly an issue that needs to be looked at.

 

Why did she lie? What was her motive?

 

Thanks a lot guys.

 

At this stage I would like to say Law is a beautiful thing with its twist and turns

[steampowered]

Please guys your view on the above arguments, any errors, pitfalls etc

 

Thanks

 

Where are you going with this? Are you proposing to appeal the Tribunal's preliminary decision in relation to the disclosure of documents?

 

If you are appealing a preliminary decision and a final hearing is coming up, my opinion on the matter is that appealing the case management orders is a waste of time (it is extremely difficult to appeal case management orders) and you would be better off using your time to prepare for the final hearing.

 

I also don't really understand what document(s) you are asking for.

[donarebun]

Where are you going with this? Are you proposing to appeal the Tribunal's preliminary decision in relation to the disclosure of documents?

 

If you are appealing a preliminary decision and a final hearing is coming up, my opinion on the matter is that appealing the case management orders is a waste of time (it is extremely difficult to appeal case management orders) and you would be better off using your time to prepare for the final hearing.

 

I also don't really understand what document(s) you are asking for.

 

 

 

 

Hi steampowered,

 

There is a Strike Out Application Hearing!

 

If they succeed there wouldn't be any Full Hearing!

 

The relevant case law (Qdos Consulting Ltd & Ors v Swanson) demands that Strike Out application must involve the examination of documents.

 

Also two case laws (Anyanwu v South Bank and Ezsias v North Glamorgan NHS Trust) rules that it is rare that Strike Out Application should take place in discriminatory cases.

 

Yet the Judge in my claim has agreed for a Strike Out Application to be held.

 

If he/she has made an error now then what stops he/she from making an error later in the Strike Out Hearing?

 

It was an error of Law for he/she to fail to take into consideration the ruling made in Qdos Consulting Ltd v Swanson.

 

All errors of Law are subject to appeals even if it was one made as part of a case management order.

 

Judges are bound by the decisions made by higher courts?

 

Yes I might have asked for a lot of documents but it is because the Respondents are denying everything I said.

[steampowered]

Hi,

 

Its possible I am being a bit dense but I'm afraid I don't understand. Was your claim struck out? Or are you trying to prepare for an upcoming strike out hearing and trying to come up with reasons why your case should not be struck out?

 

It would be very helpful if you could give us a very clear explanation of the stage you are at in this case. You need to tell us what hearings have happened so far, what the Tribunal decided and what is happening next.

[donarebun]

Hi,

 

Its possible I am being a bit dense but I'm afraid I don't understand. Was your claim struck out? Or are you trying to prepare for an upcoming strike out hearing and trying to come up with reasons why your case should not be struck out?

 

It would be very helpful if you could give us a very clear explanation of the stage you are at in this case. You need to tell us what hearings have happened so far, what the Tribunal decided and what is happening next.

 

 

 

I don't think you are dense, you have given intelligent answers in the past and asked pertinent questions.

 

I have a Preliminary Hearing to hear a Strike Out Application in January 2017.

 

There are a lot of disputed facts so the Strike Out Application shouldn't have been fixed in the first place.

 

I have requested documents at various times to prove my points but the Judge refused to order them.

 

Without those documents it would be their word against mine and we all know that the Judge would be forced to listen to them.

 

I will give you two examples ,

 

they claim I was found sleeping on a day I was on a training course 50 miles away, how do I prove I was on that course without the attendance sheet etc.

 

they claim I have an argument with a particular contractor, I was in charge of monitoring the contractor and I know he wasn't on site that particular week. How do I prove that without the attendance sheet.

 

I can go on and on but it all points to one fact; I (and they also) need documents to prove our points.

[steampowered]

There are a lot of disputed facts so the Strike Out Application shouldn't have been fixed in the first place.

 

It is not usual for the Employment Tribunal to look at any background documents at all at the strike-out hearing. This is because the Tribunal does not decide on issues of fact at a strike-out hearing. Decisions about disputed matters of fact are decided at the main hearing, if you get that far.

 

A strike-out hearing will usually proceed on the basis that all the facts/complaints alleged by the claimant are true. In other words the Tribunal assumes that you will be able to prove at trial all the facts you have alleged in your ET1.

 

Your claim would then get struck-out if the Tribunal concludes that your claim is not legally sound and would therefore still fail, even if you manage to prove all the facts alleged in your ET1.

 

What is the basis of the strike-out application?

[donarebun]

 

A strike-out hearing will usually proceed on the basis that all the facts/complaints alleged by the claimant are true. In other words the Tribunal assumes that you will be able to prove at trial all the facts you have alleged in your ET1.

 

 

 

 

 

I'm really curious because this is the second time you are saying this; ie Assumption being made at the Preliminary Hearing.

 

This is clearly contrary to the ruling made in Arthur v London Eastern Railways Ltd ({2007} ICR 193) para 34

 

“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”.

 

So I really wonder why you keep saying it

[Emmzzi]

I think you are over complicating matters

 

"You can apply to ask the court to strike out your opponent's claim if you consider it is "vexatious" (mischief making), "scurrilous" (insulting), or "ill-founded" (wrong). This will mean the claim will not proceed.

 

Or you may apply to strike out your opponent's defence if it consists only of a bare denial with no facts, or if the facts could not possibly amount to a defence."

 

(source: http://www.compactlaw.co.uk/free-legal-information/small-claims-court/striking-out-a-claim-or-a-defence.html. I like it as it is a nice clean summary.)

 

If everything you say in your claim is true, could your claim be considered vexatious, scurrilous, or ill founded? (typically not based in law/ out of time etc)

 

If not, you are fine!

[steampowered]

I'm really curious because this is the second time you are saying this; ie Assumption being made at the Preliminary Hearing.

 

This is clearly contrary to the ruling made in Arthur v London Eastern Railways Ltd ({2007} ICR 193) para 34

 

“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”.

 

So I really wonder why you keep saying it

 

I think you are misreading the quote.

 

The quote says that in a strike out situation assumptions have to be made to the truth of the facts in order to decide whether there is a cause of action.

 

The decision in Arthur v London Eastern Railways Ltd essentially says that, in that case, there were matters of fact which needed to be decided. As there were matters of fact in issue, the EAT ordered that the case should proceed to a full Tribunal hearing rather than being dealt with as the strike out stage.