Jump to content
dondada

Could failure to respond to email a failure to act?

Recommended Posts

Hi everyone,

 

 

Could a persistent failure to respond to two emails and a phone call be seen as a failure to act?

 

Background

 

Person A took a company B to Tribunal on age discrimination grounds

 

Person A asked his agency C for relevant documents

 

Agency C failed to respond despite two emails and a phone call

 

Person A now makes allegation of victimization against the agency C

 

Agency C is now claiming that person A had the document that is why they didn't respond

 

Person A didn't have the said document!

 

However, my question would be: why didn't the agency respond to the first mail and say: "mate, you have these documents so we are not providing them"?

 

I believe agency had a duty to respond to the email even if they truly believed that person A had the document

 

In which case, I see that as a failure to act hence a victimization claim

 

Please your views and any relevant case law

 

Thanks

Share this post


Link to post
Share on other sites

is employment agency party to the action? If not then they cnat be forced to hand over documents without an order but getting that order should be straightforward

Share this post


Link to post
Share on other sites
Hi everyone,

 

 

Could a persistent failure to respond to two emails and a phone call be seen as a failure to act?

 

Background

 

Person A took a company B to Tribunal on age discrimination grounds

 

Person A asked his agency C for relevant documents

 

Agency C failed to respond despite two emails and a phone call

 

Person A now makes allegation of victimization against the agency C

 

Agency C is now claiming that person A had the document that is why they didn't respond

 

Person A didn't have the said document!

 

However, my question would be: why didn't the agency respond to the first mail and say: "mate, you have these documents so we are not providing them"?

 

I believe agency had a duty to respond to the email even if they truly believed that person A had the document

 

In which case, I see that as a failure to act hence a victimization claim

 

Please your views and any relevant case law

 

Thanks

 

Victimisation

 

(1)A person (A) victimises another person (B) if A subjects B to a detriment because—

(a)B does a protected act, or

(b)A believes that B has done, or may do, a protected act.

 

(2)Each of the following is a protected act—

(a)bringing proceedings under this Act;

(b)giving evidence or information in connection with proceedings under this Act;

©doing any other thing for the purposes of or in connection with this Act;

(d)making an allegation (whether or not express) that A or another person has contravened this Act.

 

(3)Giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith.

 

(4)This section applies only where the person subjected to a detriment is an individual.

 

(5)The reference to contravening this Act includes a reference to committing a breach of an equality clause or rule.

 

 

I assume that the above is what you're hoping will apply?

 

Has A suffered a detriment as a result of C's failure?

Share this post


Link to post
Share on other sites
I assume that the above is what you're hoping will apply?

 

Has A suffered a detriment as a result of C's failure?

 

 

Yes this is what I'm hoping would apply

 

The mere fact that Party A has to go through the inconvenience and stress of getting a Court Order is a detriment (in my view)

 

Thanks a lot

Share this post


Link to post
Share on other sites

What documents are being requested?

 

I'm not so sure that having to make an application for third party disclosure is a detriment. It's just part of the process.

Share this post


Link to post
Share on other sites
What documents are being requested?

 

I'm not so sure that having to make an application for third party disclosure is a detriment. It's just part of the process.

 

 

Party A asked agency C for "all" documents

 

While "all" document isn't specific but party A expected something

 

Agency C should have written back to ask party A what exactly he (party A) wanted

 

I personally would have expected agency C to have treated it as a DSAR and sent A's personal data

 

In any event, I see the silence as victimization

Share this post


Link to post
Share on other sites

Ok, hope the Court agrees with you.

 

I wish your friend luck with their claim.

Share this post


Link to post
Share on other sites

The silence is unlikely to be considered "victimisation" by a Court for a number of reasons (It is not clear whether you would ask the Tribunal to make such a finding or the County Court).

 

However you can invite the company to provide the documents sought within seven days or you will make an application to the Tribunal for a Third Party order...

Share this post


Link to post
Share on other sites
The silence is unlikely to be considered "victimisation" by a Court for a number of reasons (It is not clear whether you would ask the Tribunal to make such a finding or the County Court)....

 

 

Just curious

 

Please, what is the "number of reasons"?

 

You didn't state them

 

It is a Tribunal case though

 

 

Thanks

Share this post


Link to post
Share on other sites

Mainly because you have a legal process and a party is not required absent specific matters i.e. an SAR to provide documents. A court order however is the correct course of action to obtain documents. Therefore a court will not uphold such a claim against a Third Party in this way.

 

Then a simpler position, the third party is just that... It is therefore not a party to the original victimisation.

 

Of course the OP can lodge a County Court claim notwithstanding what i have said above, but a reasonable lawyer defending will get the claim dismissed with costs.

Edited by JasJules

Share this post


Link to post
Share on other sites

Ok thanks for this

 

However, I disagree with you that the 3rd party is not required to provide the document

 

I believe they should have but the point isn't relevant now

 

The case is that the Worker was ignored

 

The Agency didn't respond to his emails and phone calls to say "hey mate, we can't give you this for x or y reasons"

 

The silence is the issue

Edited by dx100uk
quote

Share this post


Link to post
Share on other sites

I agree that the 3P "Could" have provided the documents upon request - depending on exactly what those documents were. We do not know if they are "relevant" in any event, though that would be a separate issue before the Court...

 

However the bottom line is if you want documents from a Third Party, you ask, if they refuse, you seek a 3P order. They exist in the CPR and Tribunal for a reason..... Thus such a matter would not found a claim of victimisation..

Share this post


Link to post
Share on other sites

That is my point exactly

 

What is the reason for the refusal?

 

Is it because they believe the Worker had the document?

 

or

 

Is it because they didn't want to get involved in an ongoing case?

 

My position is that the failure to give reasons at the right time is evidence of an ulterior motive

 

It is only during the cross-examination of the person that can be revealed

 

Cross-examination of witnesses always reveal their mental processing

 

Thank for this as the other side might try and say something similar

Edited by dx100uk
quote

Share this post


Link to post
Share on other sites

I suspect this matter will be dismissed/ ignored by a judge as an act of discrim but I will be very interested to see the outcome.

Share this post


Link to post
Share on other sites

Good news!

 

The other side has settled

 

So we would never find out if a failure to respond to emails was a detriment

 

Although during the Preliminary Hearing, the judge said it seems weak but he refused to make a deposit order

 

The other side just settled

 

Anyway, in Deer v University of Oxford 2015, paragraph 48, the Judge ruled that having a sense of injustice is enough to justify a victimization claim

 

That gives a very wide definition of victimization

 

Anyway, it wasn't tested

 

I advised him to take the amount offered as it would save him a lot of stress

 

He didn't expect so much anyway

Share this post


Link to post
Share on other sites

I used the case law AB v Ministry of Justice [2014] EWHC 1847 (QB) in agreeing with the settlement sum

 

In that case, someone made a SAR and the MOJ delayed in responding

 

£2,250 was awarded

 

Although this case wasn't SAR, but he felt the same distress

 

I believe he would have agreed to much less :lol:

Share this post


Link to post
Share on other sites

A pity I would have liked to have a decision from the Court but the best outcome for your client is to get a settlement.

Share this post


Link to post
Share on other sites

Isn't it a condition of most settlements that you do not discuss it at all afterwards? And certainly not the amount.


Never assume anyone on the internet is who they say they are. Only rely on advice from insured professionals you have paid for!

Share this post


Link to post
Share on other sites
Please fill in your quit date here

Create an account or sign in to comment

You need to be a member in order to leave a comment

Create an account

Sign up for a new account in our community. It's easy!

Register a new account

Sign in

Already have an account? Sign in here.

Sign In Now

  • Recently Browsing   0 Caggers

    No registered users viewing this page.


  • Have we helped you ...?




  • Tweets

  • Posts

    • well what they send before was well below the required stuff. defence is not due till/by 4pm may 3rd.   so incomplete / failure of previous CCA request simply needs to be added to our std holding /no paperwork defence re the way to search here detailed in post 33.   something like   Particulars of Claim  (1)The Defendant entered into a consumer crediticon Act 1974 regulated agreement with Vanquis under account reference xxxxxxxxxx  (2)The Defendant failed to maintain the required payments and a default notice was served and not complied with.  (3) The Agreement was later assigned to the Claimant on 30/09/2014 and notice was given to the Defendant.  (4)Despite repeated requests for payment, the sum of £1,597.56 remains due and outstanding.  And the Claimant claims   (a)The said sum of £1,597.56   (b) interest pursuant to s69 County Courts Act 1984 at the rate of 8% per annum   from the date of assignment to the date of issue,accruing at a daily rate of £0.350,  but limited to one year,being £127.80 (costs) then signed by Lowell Solicitors Limited.  #####Defence###### The Defendant contends that the particulars of claim are vague and generic in nature.  The Defendant accordingly sets out its case below and relies on CPR r 16.5 (3) in relation to any particular allegation to which a specific response has not been made.    2. Paragraph 1 is noted. I have in the past had an agreement with [insert original creditor]  but do not recognise this specific account number or recollect any outstanding debt and have therefore requested clarification by way of a CPR 31.14 and section 78 request..    3. Paragraph 2 is denied I have not been served with a Default Notice pursuant to the consumer credit Act 1974.    4. Paragraph 3 is denied. I am unaware of any legal assignment or Notice of Assignment pursuant to the Law and Property Act 1925 Section 136(1)    5. On receipt of the claim form, the Defendant sent a request by way of a section 78 pursuant to the Consumer Credit Act 1974, for a copy of the agreement, the Claimant has yet to comply and remains in default of said request.  The claimant has since complied and disclosed various documents however unable to comply with disclosing a valid full copy of the executed agreement on which their claim relies upon.    6. A further request made via CPR 31.14 to the claimants solicitor, requesting disclosure of documents on which the Claimant is basing their claim. The claimant has not complied, but has stated a general extension of time to retrieve the documents, to date nothing has been received.    7. It is therefore not accepted with regards to the Defendant owing any monies to the Claimant and the Claimant is put to strict proof to:  a) show how the Defendant has entered into an agreement and;  b) show how the Defendant has reached the amount claimed for and;  c) show the nature of the breach and evidence by way of a Default Notice pursuant to sec 88 CCA1974  d) show how the Claimant has the legal right, either under statute or equity to issue a claim    8. As per Civil Procedure 16.5 it is expected that the claimants prove the allegation that the money is owed    9. On the alternative, as the Claimant is an assignee of a debt, it is denied that the Claimant has the right to lay a claim due to contraventions of section 136 of the Law of Property Act and section 82A of the Consumer Credit Act 1974    10. By reasons of the facts and matters set out above, it is denied that the Claimant is entitled to the relief claimed or any relief.    
    • I can’t help but think that we’re massively over complicating things here, pick up the phone and ask to speak with the PM. Explain the issue and ask them to sort it out. I could solve 99.999999% of problems within an hour or so provided someone actually told me what the problem was. By the time I was receiving letters spanning several pages and having to dig through notes and speak to people to get their accounts of what happened it could take weeks to gather the info and get replies from everyone. Just pick up the phone at lunchtime on Tuesday, ask for the PM and if they’re unavailable ask when they can be contacted and speak to them so they have an opportunity to resolve what is probably a very simple issue rather than trawling out weeks of waiting. 
    • it would not take much for the present owner of the CO to get that changed to their name. as far as I am aware, if the property is sold, then it will need paying.   whos the owner now or more correctly, whose been sending letters and what do they say? bet DLC is in the mix...
    • This was the result of a CCJ   The house is jointly owned, but the loan was in both names (at the insistence of Black Horse).   The house is also a shared ownership property, so we own half of it and a housing association owns the other half.
  • Our picks

    • This is a bit of a lengthy one but I’ll summerise best as possible.
       
      THIS IS HOW THE PHONECALL WENT 
       
      I was contacted by future comms by phone, they stated that they could beat any phone contract I have , (I am a limited company but just myself that needs a business phone and I am the only worker) 
      I told future comms my deal, £110 per month with a phone and a virtual landline, they confirmed that they could beat that, £90 per month with a phone , virtual landline  they also confirmed they would pay Vodafone (previous provider) the termination fee. As I am in business, naturally I was open to making a deal. So we proceeded. 
      Future comms then revealed that the contract would be with PLAN.COM and the airtime would be provided by 02, I instantly told them that this would break the deal as I have poor 02 signal in the house where I live as my partner is on 02 and constantly complaining about bad signal
      the salesman assured me he would send a signal booster box out with the phone so I would have perfect signal.
      so far so good.....
      i then explained this is the only mobile phone I use for business and pleasure, so therefore I didn’t want any disconnection time in the slightest between the switchover from Vodafone to 02
      the salesman then confirmed that the existing phone would only be disconnected once the new phone was switched on.
      so far so good....
      • 14 replies
    • A shocking story of domestic and economic abuse compounded by @BarclaysUKHelp ‏ bank complicity – coming soon @A_Gentle_Woman. Read more at https://www.consumeractiongroup.co.uk/topic/415737-a-shocking-story-of-domestic-and-economic-abuse-compounded-by-barclaysukhelp-%E2%80%8F-bank-complicity-%E2%80%93-coming-soon-a_gentle_woman/
      • 0 replies
    • The FSA has announced large fines against DB UK Bank Limited (trading as DB Mortgages) - DeutscheBank and also against Redstone for their unfair treatment of their customers.
      Please see the links below for summaries and full details from the FSA website.
      It is now completely clear that any arrears charges which exceed actual administrative costs are unfair and therefore unlawful.
      Furthemore, irresponsible lending practices are also unfair and unlawful.
      Additionally there are other unfair practices including unarranged counsellor visits - even if they have been attempted.
      You are entitled to refuse counsellor visits and not incur any charges.
      Any charges for counsellor visits must not seek to make profits. The cost of the visits must be passed on to you at cost price.
      We are hearing stories of people being charged for counsellor visits for which there is no evidence that they were even attempted.
      It is clear that some mortgage lenders are trying to cheat you out of your money.
      You should ascertain how much has been taken from you and claim it back. The chances of winning are better than 90%. It is highly likely that the lender will attempt to avoid court action and offer you back your money.
      However, you should ensure that you receive a proper rate of interest and this means that you should be seeking at least restitutionary damages - which would be much higher than the statutory 8%.
      Furthermore, you should assess whether the paying of demands for unlawful excessive charges has also out you further into arrears and if this has caused you further penalties in terms of extra interest or any other prejudice. This should be claimed as well.
      If excessive unlawful charges have resulted in your credit file being affected, then you should take this into account also when working out exactly what you want by way of remedy from the lender.
      You should consult others on these forums when considering any offer.
      You must not make any complaint through the Ombudsman. your time will be wasted, you will wait up to 2 yrs and there will be a minimal 8% award of interest and no account will be taken of any other damage you have suffered.
      You must make your complaint through the County Court for a rapid and effective remedy.

      http://www.fsa.gov.uk/pages/Library/Communication/PR/2010/120.shtml
      http://www.fsa.gov.uk/pubs/final/redstone.pdf
      http://www.fsa.gov.uk/pubs/final/db_uk.pdf
       
      http://www.fsa.gov.uk/pages/consumerinformation/firmnews/2011/db_mortgages.shtml
      Do you have a mortage arears claim to make? Then post your story on the forum here
      • 0 replies
    • 30 Day Right To Reject - Vehicle Casualty Report. Read more at https://www.consumeractiongroup.co.uk/topic/415585-30-day-right-to-reject-vehicle-casualty-report/
      • 57 replies
×
×
  • Create New...