Employment Tribunal Hearing grounds of discrimination ( pregnancy )

[andydub64]

Hi,

I am currently representing my daughter on the McKenzie friend basis in her claim for unfair dismissal on the grounds of discrimination ( pregancy )

 

We have followed all the procedures through ACAS and we are currently taking her employer through the Employment Tribunal, which has taking about seven months to get to a Trial which has been listed for next week 4/5th February 2016, this was after a previous hearing.

 

Today i receive a letter from the Tribunal stating that the trial might be postponed on the grounds that despite knowing for a number of months that in any event, the trial would be considered by a panel rather than a single judge because it is a discrimination case, to use this as a reason, and so late in the day does not add up, they would have known months in advance that a panel would need to be assigned, so in using this has delayed even further.

 

The Tribunal are also aware that the Respondents are in abuse of process as they have failed to abide the previous order for them to provide a trial bundle, witness statements and further and better particulars in readiness for the trial next week?

 

Because of this we made an application for the Tribunal to make an unless order for this evidence to be giving as all of it is central to the claim and it had been previously ordered.

 

We have also written to the other side and in anticipating the Tribunal not making the unless order, which seems very reasonable, by stating that we would provide our own trial bundle and giving them seven days to object.

 

Since all of this has happened in the last couple of days, the Tribunal as it would appear are bending over backwards in allowing the previous orders be breached and ignored and they have also giving the Respondents more time to defend a claim that evidently cannot be defended because of the circumstances which led to my daughter being dismissed.

 

Whilst i am not legally qualified as to adjudge it would a appear that (a) she has been denied the right to a fair hearing because her opponents have abused orders which if followed would have allowed the trial to proceed and ( b) the Tribunal could have not only made the request for that evidence to be disclosed, in postponing the trial next week, giving those facts and the excuse of needing a panel, which would have been knowledge as soon as pleadings were made, i feel this is unequal and unfair as the Tribunal are not only allowing orders to be breached, they are also giving the Respondents more time to further breach the orders.

 

My daughter i feel has a very strong case and my theory is that because of the strength of her case, the opponents and the tribunal are doing everything in their power to keep this matter out of court.

 

It is hard enough and most times financially impossible for pregnant woman to establish unfair dismissal claims because they are pregnant, the Tribunal who should protect, if my experiences are anything to go on make it even more difficult by allowing employers the right to ignore orders and as in this case give further encouragement for this to happen again by postponing without reason or justification.

 

Any help would be greatly appreciated by this angry dad:mad2:

[honeybee13]

Hello and welcome to CAG.

 

I'll move you to the employment forum where you should get more advice, and leave you a link to follow from here.

 

My best, HB

[andydub64]

Thanks for that Honeybee13, really appreciated.

[BazzaS]

Bad behaviour by the respondent can only look poorly for them when it reaches tribunal.

Additionally, you might strike lucky with any future application being heard by a judge / adjudicator who decides "enough is enough"

 

In case it goes to Tribunal, "play with a straight bat".

The risk in matching their poor behaviour is in risking the advantage you have of complying with the Tribunal's directions.

 

So, galling as it may seem, keep behaving well, and apply for an unless order again the next time the respondent breaches directions.

(You are notifying the respondent of your intent to seek an unless order, in advance of the application, each time?)

 

You may 'strike lucky' before the hearing, but at least come the hearing you can only be seen to have behaved beyond reproach, and they badly. Even if the hearing then went against you, that would be grounds for you to apply for them not receiving costs if they tried to have you burdened ........

 

Are they legally represented?

If so, I don't know if there is any way to find out if the delay is from their legal representative or the respondent themselves.

Would highlighting to their representative that you would wish to apply for a wasted costs order be a good tactical move?

(If a tribunal found the representative, rather than the respondent, was failing to meet directions, the representative could be in line of fire to pay up ........

 

Are you already familiar with

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/429633/employment-tribunal-procedure-rules.pdf

[andydub64]

Good Evening BazzaS

 

Thank you for your response and you valued words of advice which is appreciated.

 

The Respondent is being legally represented, to date they have had three different people dealing with the case.

 

I have politely advised the latest representative in emails that they are not following previous orders but every time i attempt this, he is either on holiday, sick leave and not responding based on these excuses.

 

When he has replied he has not dealt with the procedure issues and complained because i have sent him four separate emails, this week he is away on a case until Friday? Seems to me as if he is avoiding the orders, and deliberately, and trying to buy time.

 

ACAS are fully aware of the situation and the conciliation officer is slightly confused on how representation is being made, i have informed both ACAS and the Tribunal that we are trying to keep any costs down by not instructing a qualified solicitor as i believe if my daughter was legally represented the matter would have been concluded some time ago.

 

I will now make an application for a wasted cost order and give notice that we will now be instructing legal representation as i feel any threat of costs could make them deal with the case in a more positive manner.

[BazzaS]

Good Evening BazzaS

 

Thank you for your response and you valued words of advice which is appreciated.

 

The Respondent is being legally represented, to date they have had three different people dealing with the case.

 

I have politely advised the latest representative in emails that they are not following previous orders but every time i attempt this, he is either on holiday, sick leave and not responding based on these excuses.

 

When he has replied he has not dealt with the procedure issues and complained because i have sent him four separate emails, this week he is away on a case until Friday? Seems to me as if he is avoiding the orders, and deliberately, and trying to buy time.

 

.

.

.

 

I will now make an application for a wasted cost order and give notice that we will now be instructing legal representation as i feel any threat of costs could make them deal with the case in a more positive manner.

 

Others may have a different view, but I think you need to warn the other side's representative you intend to apply for a wasted costs order before making the application.

 

Always give the other side notice. Firstly, it gives them a chance to remedy their bad behaviour without using the court's time on an application.

Secondly, when you then seek the application when they are still in breach, it shows the court how reasonable you are, how badly behaved they are (with you being a mere LiP and them being a professional, to top it all!), boosting your chances of a successful application)

 

I also wonder about the timing of the application ; I wouldn't suggest you actually make it until they loose, (as if they win you likely won't get the order, only limiting your costs liability on their bad behaviour).

If you get an offer to settle : you can use your notifying them of your intent to seek the order as part of your discussions on a settlement figure).

 

It is more of a tactical move, advising them of your intent, and to see if the delay is the representatives or their client's, to draw their attention to their non-compliance with directions, and to limit future non/compliance if it is by their legal representative.

 

The costs you will seek to recover are those ADDITIONAL costs based on their failure to:

a) meet the directions' deadlines, and

b) as a result of them not replying in good time

(These are the "improper behaviour" ; they may have been in holiday - did they not arrange cover? They may have been ill, if this was a brief illness there shouldn't have been a significant delay - if a more protracted illness they should have sought help to cover their work....)

 

If you didn't face ADDITIONAL costs : then you seek a costs order against the respondent, not a wasted costs order against their representative ....... Again, it would be worth warning them now of your intent and reasoning ("repeated unreasonable delays in meeting directions")

 

http://underwoods-solicitors.co.uk/docs/Wasted%20Costs.pdf

Is a useful note on "wasted costs"

In particular note the need to show it was the legal representative who was the cause of the improper behaviour, which is made more difficult if the respondent declines the solicitor permission to breach confidentiality / waive legal privilege.

 

That article also notes

 

(a) Threats

The threat of a wasted costs order should not be used as a means of intimidation. However, if one side considered that the conduct of the other was improper, unreasonable or negligent and likely to cause a waste of costs it was not objectionable to alert the other side to that view. There appears to be a fine line between ‘threatening’ and ‘alerting’.

So, tread warily!.

[andydub64]

Good Morning,

 

Again thank you for this advice,it gives me another line on which to place some reliance on.

 

Do you think the threat of a cost order and giving notice that these instructions will now be giving to proposed legal representation will add any weight behind the notice of intent?

 

Those representing the Respondent could be influenced and minded to act in a way because my daughter has not to date, been afforded the chance of legal representation.

 

Reading between the lines, my school of thought is that because secured legal representation is not in place, those representing the Respondent are motivated in believing this an advantage?

 

Maybe the double threat of legal representation and instructing any new representives will add pressure?.

[honeybee13]

Hello there.

 

I've just deleted a duplicate of your post above. If you can't see what you just posted, try hitting the Refresh button on your browser.

 

HB

[andydub64]

Thanks HB

[andydub64]

Good Morning

 

I have this morning received a trial bundle which evidently does not include the Claimants six page witness statement, details nor any answers to the further and better particulars that if giving by the Respondent could undermined their case.

 

Apart from being two weeks late of the directions for them to disclose an agreed bundle, it is clear that the bundle would be deemed a clear misrepresentation in the proceedings because the Respondents legal adviser has cherry picked parts of the claim that he would support his client, but any evidence which on the value would probably demonstrate my daughter was unfairly dismissed on discriminating factors have been left out.

 

Whilst it is not for me to adjudge, the Respondents legal representative seems minded and has the giving authority to disclose evidence that only he feels should be consider, in a nutshell he is deliberately concealing evidence that the Tribunal and my daughter have the right to consider and to rely upon.

 

It could well be the case that because i gave notice yesterday of my intentions to make an application for wasted costs that has prompted him to produce what in effect is a half completed trial bundle.

 

He is and in my opinion giving the Tribunal an engineered misrepresentation of the facts, which in a criminal court and if established would be a criminal offence, would this be the same under the Tribunal rules and procedures.

 

The cover letter signed also states " I enclose the completed and agreed bundle for your use and the Respondents witness statement.

 

Again the contents are not only misleading but fabricated but i have not agreed to this bundle, quite the reverse, why would i agree to a bundle that does not even include the Claimants statement, further evidence that i politely asked for in the further on better particulars and would also object before it was agreed the evidence, in part that has been disclosed by Respondents, which as i assume would have the right to object too, if that were to be the case and a valid point as to object to being included.

 

I am now going to email the Respondents legal adviser, thank him for his half filled trial bundle and give him notice that i will be relying on what is a clear misrepresentation of the evidence that the Tribunal ordered as i will now make the Tribunal know and now make application for a wasted cost order and on the grounds that directions and request for evidence have been abused, and when the order was eventually complied with the Claimants evidence was not disclosed.

[BazzaS]

Good Morning

 

I have this morning received a trial bundle which evidently does not include the Claimants six page witness statement, details nor any answers to the further and better particulars that if giving by the Respondent could undermined their case.

 

Apart from being two weeks late of the directions for them to disclose an agreed bundle, it is clear that the bundle would be deemed a clear misrepresentation in the proceedings because the Respondents legal adviser has cherry picked parts of the claim that he would support his client, but any evidence which on the value would probably demonstrate my daughter was unfairly dismissed on discriminating factors have been left out.

 

Whilst it is not for me to adjudge, the Respondents legal representative seems minded and has the giving authority to disclose evidence that only he feels should be consider, in a nutshell he is deliberately concealing evidence that the Tribunal and my daughter have the right to consider and to rely upon.

 

It could well be the case that because i gave notice yesterday of my intentions to make an application for wasted costs that has prompted him to produce what in effect is a half completed trial bundle.

 

He is and in my opinion giving the Tribunal an engineered misrepresentation of the facts, which in a criminal court and if established would be a criminal offence, would this be the same under the Tribunal rules and procedures.

 

The cover letter signed also states " I enclose the completed and agreed bundle for your use and the Respondents witness statement.

 

Again the contents are not only misleading but fabricated but i have not agreed to this bundle, quite the reverse, why would i agree to a bundle that does not even include the Claimants statement, further evidence that i politely asked for in the further on better particulars and would also object before it was agreed the evidence, in part that has been disclosed by Respondents, which as i assume would have the right to object too, if that were to be the case and a valid point as to object to being included.

 

I am now going to email the Respondents legal adviser, thank him for his half filled trial bundle and give him notice that i will be relying on what is a clear misrepresentation of the evidence that the Tribunal ordered as i will now make the Tribunal know and now make application for a wasted cost order and on the grounds that directions and request for evidence have been abused, and when the order was eventually complied with the Claimants evidence was not disclosed.

 

Was there a previous disclosure list?

Is there anything missing from it & did you previously note significant documents that you felt should be included that are missing!

 

(& by documents : this is widely construed by the courts as meaning pretty much any form of relevant information, including electronic as well as "hard copy", so emails, CCTV, records of relevant meetings between the claimant & respondent and so on)

 

By all means let the Respondent's solicitor know what you think is missing. Do so factually. It might feel good to say "Thankou for your half complete bundle", but when it comes to costs orders "I have recieved (on 29/1/16] your bundle for forwarding to the court : it appears to be missing the following documents we feel essential to the tribunal reaching a fair and just decision.

Please provide these as a matter of urgency as the agreed bundle is due for submission by [date] / (already overdue due to you not providing a bundle sooner) " gives a costs application more chance of success.

 

 

Let the Tribunal know too, it may be worth another unless application if the other side doesn't remedy their omissions and doesntexian why(such as claiming litigation privilege)

Who has been directed to submit the bundle? And when by?

Have you already provided them with your bundle contribution? And by the time directed??

Your aim is to show you have been compliant, and not contributed to any delay

[andydub64]

Hi BazzaS

 

Yes there are items that are missing witness statements, data that shows my daughter time keeping was not a reasonable excuse for dismissal, email communication requesting but never receiving material in order to attend greivence meeting.

 

They were directed to submit the trial basis and i did send and disclose the evidence that i felt was relevant to the case and within the period allowed after directions were made, they had to do this by the 14th January 2016, i also reminded them by email that the trial bundle and what they intended to rely on had not been produced, and i sent them the bundle contribution and within the time directed.

 

The trial is listed for next Thursday so giving the short period of time and the continued delays which are still going on, this is not how i would have liked to have been prepared, they just seem to be very obstructive in their motives and in particular to the procedures and directions that have been made.

[andydub64]

Hi,

 

Can someone please advice on the rights to seek an adjournment on the grounds o non-compliance of order and when the order was complied with, respondent, providing trial bundle, this was not agreed and evidence which we were to rely on has not been included.

 

In a nutshell the Respondents representative has cherry picked the evidence for the tribunal to consider, seems wrong and unequal, any advice welcomed.

[andydub64]

I have just received an email from the tribunal which reads: On the Tribunals own initiative and having considered representation made by the parties, Employment Judge is considering striking out the response because; the manner in which proceedings have been conducted by way on on behalf of the respondent has been scandalous, unreasonable or vexatious.

 

It further reads if you object to this proposal, you should give you reasons in writing or request a hearing.

 

I had previous requested an unless order against the Respondent on the grounds of non-compliance, and failing to agree a bundle which the respondents representatives had misrepresented as being agreed, which was not because the Claimant witness evidence and other material was not included.

 

With the trial taking place on Thursday could someone please advice what i should do.

[andydub64]

BazzaS

 

Update, followed your advice and asked the Court to consider an unless order

 

Received today email that the judge is considering striking out response on the grounds of being unreasonable, vexatious, scandalous.

 

Any further help would be greatly appreciated as the trial is due to proceed on Thursday this week.

[honeybee13]

Hello there.

 

I've merged your threads about this, please keep to one thread for your tribunal.

 

HB

[andydub64]

Sorry HB

 

Any advice would be appreciated, giving the timing of order and hearing.

[steampowered]

Hello

 

I see that you don't have much time until the trial.

 

The process of preparing bundles is not supposed to be controversial. The bundle is supposed to be a package of all the documents the tribunal might want to refer to. It is supposed to be a neutral package, hence why the two sides are supposed to agree it.

 

The first thing to do is to ask the other side's solicitors to include the evidence which has been omitted from the bundle. If they refuse to do that, then you should prepare your own bundle. That bundle should include everything the other side has put in there plus the documents which you believe have been omitted.

 

Ideally bring along enough copies of that to the tribunal (one for you, one for each member of the tribunal panel, one for the other side, one if any witnesses are giving evidence). If that's not possible, at least bring along a few printed copies of the evidence which you believe has been omitted. At the start of the tribunal proceedings, before anything else gets going, explain the situation to the judge - i.e. that the respondent has refused to include all relevant evidence in their bundle, that this could not be sorted out because they were so late, and request to use your bundle as the bundle for the trial (or that the evidence you have brought along is added to the bundle).

 

Forget about asking for further and better particulars. I doubt you are going to get any new documents out of the other side at this late stage.

 

You can consider asking for a preparation costs order at the trial itself. If the trial is tomorrow there isn't much point asking for that separately. You don't have much time but you may wish to print a copy of the tribunal rules of procedure which are available here: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/429633/employment-tribunal-procedure-rules.pdf.

 

Unfortunately you were barking up the wrong tree with regards to requesting a 'wasted costs' order. Wasted costs order are costs paid by the legal representatives of a party to the proceedings (i.e. by the firm of solicitors, not by the employer). See paragraph 80 of the rules I linked you to. Wasted costs orders are rare and are usually used where a solicitor has badly screwed something up and wasted everybody's time as a result. I don't think that applies here, you don't know whether the delay is the fault of the solicitors or the employer.

[andydub64]

The bundle was never agreed and it most certainly was not completed, as the Respondents representative has suggested.

 

In a nutshell the right to a fair hearing is being denied on (a) because directions to agree to the bundle were not complied with by the respondents on the date giving PTR, and when the bundle was giving two weeks later, this was not agreed and evidence that the Claimant said she wanted to rely upon was not included.

 

Their actions are therefore denying the Claimant under HRA 1998 article 6, the right to a fair hearing, as a result of non compliance and not disclosure.

 

Any help would be appreciated.

[steampowered]

You need to work out what you actually want to happen in practical terms, and what you actually want the Tribunal to do, in order to progress this.

 

Citing human rights will get you nowhere so I think you need to forget about that. The respondent is presumably not a public body and accordingly will not be subject to the provisions of the HRA/ECHR dealing with the right to a fair hearing in any event.

 

I should point out that it is customary for the bundle to be prepared by the employer but this is not necessarily always the case. The tribunal does not care who prepares the bundle; the Tribunal simply needs to be able to read the documents which you intend to rely on.

 

If the trial is tomorrow, there are realistically only three options available to you:

1) You bring your own bundle to the trial and ask the Tribunal, at the start of the hearing, to use that bundle.

2) You bring the additional missing documents to the trial and ask the Tribunal, at the start of the hearing, to refer to them alongside the Respondent's bundle.

3) You ask for the hearing to be adjourned and for new directions to be given - potentially accompanied by a preparation costs order on account the time you wasted turning up to the hearing. In order to convince the tribunal to delay the hearing, you would obviously need to convince the tribunal that there is a very good reason to delay and that the respondent's failure has genuinely prejudiced your daughter's ability to put forward her case.

 

If this is simply a case of documents missing from the bundle and the hearing is tomorrow, I would have thought the easiest way is to simply bring a few copies of those documents along to the hearing so that they can be added to the bundle?

[andydub64]

Thank you for your response, appreciated.

 

I would assume that the whole purpose of rules and direction are to ensure a fair hearing, and that would be for the Tribunal who have been notified as to consider, it is my understanding that every person has the right to a fair hearing, and is predominately based on that reason and not who the other party is.

 

I have not agreed to the Respondents bundle, there are parts of the bundle which would be subject to a further and better particulars if the bundle was disclosed and in accordance with the directions, which was not the case, so this has prejudiced my daughters case.

 

If we have a system in place where one party is allowed to just please themselves make it up as and when it suits them throw a half prepared trial bundle at the tribunal days before that hearing there serves no purpose in that system being there in the first place.

 

Would it being going to trial if i ignored orders, procedures and concealed material that undermined my daughters case, i very much doubt that.

 

The Tribunal were considering striking out the response yesterday, and the same representative has giving a sob story that again misrepresents the facts, and is further allowed any benefit of doubt, which again seems odd.

 

Pregnant woman, and not just because it is my own daughter should be protected, what you have here is a two bob lawyer pulling all the strings which from where i am sat beggars belief.

[steampowered]

I'm a bit confused by your reference to 'further and better particulars'. That is used at the case management stage in relation to the ET1/ET3. It is asked for if the nature of the case a party is making is unclear, and usually only in relation to claimants (since it is the claimant that is responsible for setting out the case he/she wants to make, the nature of the employer's case is usually pretty clear as denying the allegations). Further and better particulars is not a concept which is used to attack evidence or the bundle.

 

Is this issue really about failure to disclosure evidence, rather than a fight over what goes into the bundle? If so, what is it specifically that you want the employer to disclosure, and was that document covered by the case management order?

[BazzaS]

I have just received an email from the tribunal which reads: On the Tribunals own initiative and having considered representation made by the parties, Employment Judge is considering striking out the response because; the manner in which proceedings have been conducted by way on on behalf of the respondent has been scandalous, unreasonable or vexatious.

 

It further reads if you object to this proposal, you should give you reasons in writing or request a hearing.

 

I had previous requested an unless order against the Respondent on the grounds of non-compliance, and failing to agree a bundle which the respondents representatives had misrepresented as being agreed, which was not because the Claimant witness evidence and other material was not included.

 

With the trial taking place on Thursday could someone please advice what i should do.

 

This is good, though, surely?

 

"On the Tribunals own initiative and having considered representation made by the parties, Employment Judge is considering striking out the response because; the manner in which proceedings have been conducted by way on on behalf of the respondent has been scandalous, unreasonable or vexatious."

 

"behalf of the respondent" ; your daughter is the claimant / appellant. The employer is the respondent.

 

The court wants to strike out their response, because of the way they have behaved. They would then have no defence, and your side would "win by default"

 

Turn up at the hearing. If they turn up watch them squirm,

Only if they successfully persuade the court their case shouldn't be struck out do you not "win".

In that case your side can apply for the documents not provided by them to be admissible (if you have them), OR if you don't have them and they are essential to your case, a further unless order, which it seems likely the court/ tribunal will provide (it is either "the judge lottery", or the court's patience with them [while you have maintained the moral high ground] has become exhausted)

 

Either way : time for a costs application (interim costs if the case is adjourned / continued at a later date).

It is a "costs order" if you don't know if it was the respondent or their legal representative at fault : "wasted costs" if you can show it was their legal representative.

 

Don't ask for "wasted costs" if you can't show it was their legal reps fault : they might have been nagging their client but with no result...... & it would be a shame to do something when you have the upper hand that might annoy or upset the judge / panel!

[BazzaS]

 

The Tribunal were considering striking out the response yesterday, and the same representative has giving a sob story that again misrepresents the facts, and is further allowed any benefit of doubt, which again seems odd.

 

What was their sob story, can you show it is a misrepresentation, and has the Tribunal reached its decision on the strike out?

[andydub64]

Hi BazzaS

 

The email from the courts is an acknowledgement from the Judge as from the Respondent and has been allocated tomorrow.

 

In his plead their representative states that because i am not qualified i do not understand the tribunal procedures, which i find a bit rich giving the Tribunal under their own steam threatened warned as to strike out predominately on the basis that they themselves do not understand procedures, my daughters witness statement would show who does not understand the procedures.

 

Moaning about me sending emails stating that he was on holiday, off sick and working away from office, claiming he received our bundle and included everything, which was not the case, the witness statement from my daughter again failed to be mentioned, as were the letters from CAB and College. Admiting that i sent all the documents but two paragraphs down contradicts himself. by claiming i have not sent or identified those documents. He knows full well what he is trying to engineer and that is for the panel not to consider all of the evidence and to date he is being allowed to do this, he feels he has the right to ignore orders and give evidence that he wants considered, just hope the tribunal can see through him.