Sexual Assault in workplace

[t18con]

A fortnight ago, I was at Industrial Tribunal for a few days. It ended with the judge giving both parties until last Friday to submit their final submissions. I sent mine in late on the Thursday night, believing that was the end of the matter.

 

At 1655 on the Friday, I got an email from the Respondents with their submissions, and reminding me I hadn't supplied mine. I replied that I had submitted mine to the judge much earlier in the day. They stated I should have forwarded a copy to them.

 

I still have not sent them a copy, waiting for confirmation on Monday, from either Labour relations or the Tribunal office themselves, that I am required to give the Respondents a copy as well. I can't see how they require a copy at this stage, and believe they are bluffing.

 

Can anyone confirm correct procedure. I should say, I represented myself.

[BazzaS]

It would be usual to “file, & serve”

file copy to the court

serve a copy to the other party.

 

it depends on what the judge’s directions were though.

However, the days of Perry Mason / “ambush tactics” have gone : what do you have to gain by not serving them a copy?

[Emmzzi]

I agree with Bazza. Not giving them a copy just creates delays. What did your instructions from the court say?

 

I think you may also mean "Employment Tribunal" and "ACAS" instead of "Industrial Tribunal" and "Labour Relations"?  It may be that the processes have changed since these terms were in use.

Edited October 3, 2021 by Emmzzi

[t18con]

To be honest, I haven't got a thing in writing since court date. Judge again submissions in by 1st October, but nothing else was said. 

Thanks for reply guys. 

[BazzaS]

Again:

”what do you have to gain by not serving them a copy?”

 

(What you might have to lose is the judge disallowing your submission if you haven’t complied with their direction(s) ).

Edited October 3, 2021 by BazzaS

[t18con]

I started through an agency 6 months ago, paying PAYE, etc.

Payslips as you would expect, paying tax as you would expect, pension as you would expect.

 

Had a sexual harassment issue in work, inappropriate touching, raised it with HR, was told to pursue as a grievance.

Raised grievance, when told result of grievance I asked why their approach was different for a man complaining of inappropriate touching compared to a woman making same complaint. Got laughed at. Walked out.

 

Agency sent me small print stating I'm self employed and have no rights whatsoever.

 

Apart from police action, what are my options?

Have already told them I'm going to employment tribunal, and lodged initial paperwork. 

[Emmzzi]

It does depend on your employment status. What does your contract say? More detail will be helpful.

[t18con]

Before I begin, I should say this is Northern Ireland based, I know the rules are slightly different.

 

I lodged paperwork with Tribunal in February, not realising the rules had changed since I last had dealings with them.

 

I realised part way through the online form that I should have sought Early Conciliation BEFORE beginning the process. I had left it to the 3 month threshold before sitting down to do the paperwork, so completed the form, without the required early conciliation code required.

 

The paperwork was returned, due to the lack of early conciliation number , and re-submitted WITH the number in April, by now outside the 3 month window. The paperwork was accepted, albeit late.

 

The judge has stated, at a Webex today, that he will accept the earlier date, within the 3 month deadline, if I can argue that he was wrong to dismiss the first batch of paperwork.

 

He has pointed me towards Industrial Tribunals (96) Article 20 and 20A, and given me a fortnight to come up with an arguement.

 

He has said, as far as he is aware, there are 4 possible reasons, in law, why he would have been wrong in declining my ET1/IT1 without the early conciliation number. 

 

Can anyone help?

[whitelist]

This is the problem of doing a Paper ET1 application rather than online. The online process asks you for the conciliation number right at the beginning. If you do not have it, you will be re-directed to the Labour Relations Agency.

 

The 20 & 20 A question contained within The Industrial Tribunals (Northern Ireland) Order 1996. https://www.legislation.gov.uk/nisi/1996/1921/article/20A

 

Case Law answers your question with Pryce v Baxter and late submission of a conciliation number. Being an Employment Appeals Tribunal sets case law.

 

https://assets.publishing.service.gov.uk/media/6273d7be8fa8f52066009840/Miss_J_Pryce_v_Baxterstorey_Limited__2022__EAT_61.pdf

 

They did not consider late Early conciliation certificate to be a sufficient reason for Re-presentation of the claim.

 

Just like yourself, the claimant failed to submit a conciliation number with her paper ET1 Form.

 

Anyway, that is my assessment, but wait for further replies

 

 

 

 

Edited August 12, 2022 by whitelist
spacing

[t18con]

So what are the 4 instances when Early Conciliation is NOT required?

 

I've got 3

 

When the other side have contacted ACAS/LRA first

When someone else has similar complaint and already contacted ACAS

When you are looking money up front because you are in financial peril

 

That case law was a good read, by the way

[t18con]

Very quick summary, sexual assault in the workplace, employed through an  agency , so have paperwork submitted against BOTH the agency and the workplace.

 

The actions are at the "further information and discovery" stage. The agency had sent a request for further information a long time ago, requesting specifics on the discrimination, harassment. victimisation, etc. I listed them basically as I had done to the workplace.

 

Come discovery stage, and the agency asked exactly the same questions again.

 

I queried why the had put exactly the same questions forward when I had already answered them.

 

They stated I had detailed the discrimination, harassment, victimisation against me by the WORKPLACE, but had yet to list one bit of discrimination, harassment, victimisation done by them or anyone employed by them. I can list that they failed to investigate, but other than that, i don't have much.

 

 

Does the discrimination, etc. have do be done BY THEM, or their employees for them to be liable? Or is it suffice that they placed me in a workplace where I was discriminated against, harassed, victimised ?

 

I know they have a duty of care, but the judge was very quick to point out that "duty of care" type complaints belong in the High Court, not the Tribunal, so I'm reluctant to go down that route again.

Has anyone any pointers? Or what direction should I be going with my answers?

 

Many thanks in advance!

[dx100uk]

numerous threads merged for full history here.

 

dx

[t18con]

I'll not go through all the unnecessary details again, short version is I was working through an agency in a maintenance position on a "worker with contract" type contract. Had been there 7 months.

I have 4 named Respondents, including both the agency and the "hirer", the factory I was employed in.

The Respondents have been given a Preliminary Hearing, where time barring issues are being discussed. The factory where I worked are looking the Victimisation aspect of the case kicked out. The Agency are looking the entire case against them kicked out, as there was no one from agency involved in the incidents.

On the morning where I was given the results of my grievance hearing, my line manager stated he was giving an assurance "it wouldn't happen again", he asked was I happy with that outcome? I looked out of office, pointed out a young female worker, and asked why the case hadn't been handled in the same way as, say, she had made an identical complaint. He laughed at me and said "but you're not a 25 year old female". I told him I believed he'd made a discriminatory remark and was bringing the meeting to an end.

I left work, stating my head wasn't in the right place to be in work.

At 1100 that morning I received an email from the agency offering support

At 1137 I notified both parties of my intention  to bring the complaint outside, to Tribunal

The next email from the agency notified me I didn't have the right to grievance or appeal. I had the right to informal complaint, but not to grievance. They included a copy of the Terms of Assignment

The Terms of Assignment were indeed the terms I received at commencement of employment.

On 12 weeks of Employment I had received a pay rise, when I queried why I had received this I was told in writing that it was to comply with Agency Worker Regulations.

Also in Discovery I have received an email exchange between the Agency and the "Hirer", where the Agency were fighting strongly to receive details of a comparator contract and pay rate. They even state the ToA are no longer applicable due to AWR 

Am I quoting the AWR as the relevant legislation which should allow the complaint against the Agency to stand, or is there other Legislation I should be quoting from?

Just as a quick side question, the Hirer is seeking the Victimisation aspect to by kicked out. It's fairly obvious there is a Victimisation aspect, they have even stated in the ET3 that my assignment was cancelled on the day I left work "due to my head not being right". I also stated I was effectively constructively dismissed as "it won't happen again" isn't really an acceptable position to be left in after a sexual assault type scenario. I have also been stopped while out shopping with partner and verbally abused for bringing complaint by a former colleague. The hirer acknowledged this incident but said the person's views didn't represent those of the Hirer. 

So what does the Hirer hope to achieve in losing the Victimisation aspect, is it just less money to pay out, or am I missing something. The only other advantage is that it effectively shortens my 3 month deadline in that the "clock"starts ticking a few weeks sooner. Anything else?

 

Many thanks in advance

 

Edited July 30, 2023 by t18con

[unclebulgaria67]

Previous thread unlocked and new post added

[unclebulgaria67]

Agency worker regulations.  After 12 weeks in the same job:  The equal treatment entitlements relate to pay and other basic working conditions (annual  leave, rest breaks etc) and come into effect after an agency worker completes a 12 week  qualifying period in the same job with the same hirer. After completing the qualifying period,  pregnant agency workers will now be allowed to take paid time off for ante-natal appointments  during an assignment.

Think for this case, you should have asked for disclosure from the agency about their awareness of other sexual assaults that have happened at the factory previously.  The agency is your employer and they have a duty of care. So if the agency were aware of anything which might cause harm to their employees, then they should have taken appropriate safeguarding actions.

 

 

[whitelist]

Agency workers cannot claim constructive/unfair dismissal being a worker, not an employee.

You mention "worker with contract" type contract. 

Is it a fixed term temporary contract as an example, the hirer has guaranteed set hours and days over a specific time frame with a termination date the agency then placed you in that vacant position?.

Can you elaborate please for clarity?

Edited July 31, 2023 by whitelist

[t18con]

1 hour ago, whitelist said:

Agency workers cannot claim constructive/unfair dismissal being a worker, not an employee.

You mention "worker with contract" type contract. 

Is it a fixed term temporary contract as an example, the hirer has guaranteed set hours and days over a specific time frame with a termination date the agency then placed you in that vacant position?.

Can you elaborate please for clarity?

The judge asked was the "worker under contract" a fair representation. The initial contract stated 3 month+ as the time frame, it was supposed to be leading to a permanent position. This didn't happen during the 7 months I was there, but it was discussed regularly.

When the judge asked was "worker under contract" a fair representation, she could see me stalling as I didn't want to sink myself. She said it wasn't a trick question, that, as a worker under contract, i still had protection in Law, so I agreed it was a fair representation.

[t18con]

2 hours ago, unclebulgaria67 said:

 

Think for this case, you should have asked for disclosure from the agency about their awareness of other sexual assaults that have happened at the factory previously.  The agency is your employer and they have a duty of care. So if the agency were aware of anything which might cause harm to their employees, then they should have taken appropriate safeguarding actions.

 

 

They have and are arguing that the duty of care extends only to standard health and safety type , that they can check and control. Anything other than than goes to the "hirer". That's why they're trying to get the case against them kicked out.

[whitelist]

Just shooting from the hip, so take with a pinch of salt.

Do not think you can ask through disclosure about their awareness of other sexual assaults that have happened at the factory previously with employee/corporate confidentiality. You cannot use the courts for a phishing expedition to strengthen your case. If the information is already in the public domain, then that is another matter to your advantage.

 

Might be an idea to look at regulation 3 Management of Health and Safety at Work Regulations 1999 with risk assessments. Specifically, 3(1)(b)

https://www.legislation.gov.uk/uksi/1999/3242/regulation/3/made

 

Edited July 31, 2023 by whitelist

[t18con]

The judge has kicked the case out on a time point, in it's entirety.

My last day on site was 11th November, 2020. I have stated mental health issues and backed up with doctors notes and letter. Judge has said one trip to GP does not constitute an impairment in completing ET1, and if I was fit to start with new employer on 29th November, 2020, I was fit to complete ET1 from that date. 

So clock starts ticking 29th November.

I completed ET1 in 11th February 2021, without realising change to procedure ( early conciliation requirement) until i sat down to complete form. The ET1 was returned approx 6 weeks later due to lack of EC certs, Early Conciliation was sought immediately and fresh ET1 accepted 4th April, 2021. 5 days late.

I've argued the mental health point strongly at hearing, that Covid restrictions still in place in GP surgery, so had to phone reception at 830, explain reason for GP consultation. Wait by phone for ring back. Then have telephone consultation with GP.

I've argued that having started in new employment, in factory floor environment,  that it was impossible to have that sort of conversation with GP, that it's an extremely difficult conversation to have at best of times, never mind from work.

He has argued if I wasn't taking sick leave, missing days, keeping in contact with GP, etc. then there'd can't be a major issue.

Where do I go from here?

Does the clock stop ticking while LRA are in contact with Respondent, or is that where the month comes in?

[whitelist]

The ET1 claim with the three months' time limit with instigating a claim that starts from your last day of service, not from when your new job starts.

Without that Acas conciliation number, there can be no valid claim and the time limitation continues to tick down until you get that number.

 

Think the problem you have is that you did a paper ET1 by post, and not online.