Could failure to respond to email a failure to act?

[dondada]

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

[honeybee13]

Hi DD. Why do you say alleged failure to act is victimisation please?

 

 

And are you person A?

 

 

HB

[ericsbrother]

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

[Ganymede]

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?

[dondada]

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

[Ganymede]

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.

[dondada]

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

[Ganymede]

Ok, hope the Court agrees with you.

 

I wish your friend luck with their claim.

[JasJules]

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...

[dondada]

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

[JasJules]

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 August 29, 2018 by JasJules

[dondada]

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 August 31, 2018 by dx100uk
quote

[JasJules]

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..

[dondada]

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 August 31, 2018 by dx100uk
quote

[JasJules]

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.

[dondada]

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

[dondada]

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

[JasJules]

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.

[Emmzzi]

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