employment advice please (re ET)(32 Posts)
Can anyone help advise me. Logged an ET claim (disability discrimination) which was accepted and received employers response.
I expected next step would be a court date but I have to take part in s preliminary hearing (by phone)
Can anyone advise what to expect? By going to this first does it reflect on what they consider my prospect of success is?
No, it is to make sure all details are fully completed and forms are correct etc. they will ask if there are any dates either side can't do and you will be given a court date. They won't rule or give any hints as to any outcome
If it is a preliminary hearing then you do need to do a bit of preparation, as do the other side.
You'll need to agree the documents that will be submitted to the tribunal hearing, you can request documents from the other side and they can request docs from you.
You'll also need to confirm the names and availability of any witnesses.
You may also have to set out your case, in terms of disability law there is a particular quirk that the employer can only either victimise you OR harass you, you can't claim that a single incident was both victimisation and harassment.
If you are nit clear on that sort of detail of the law (and who is) the judge will usually be helpful in directing you and explaining what you need to do. Judges are usually super fair and helpful to the claimant especially if you don't have a solicitor. They are helpful in terms of getting the case right, not in terms of supporting you and being your friend though.
Always address the Judge as "sir" or "madam". And say "thank you sir/madam" a lot.
Thanks for the advice. We don't have a solicitor but did have an initial consultation with one who helped plus studied a module of employment law which helped with the basics plus sister is a lawyer (though not in employment)
Will make sure I print my work calendar, my only concern with that is things change very frequently at work and the dates for this phone call took a long time to be confirmed. Guess I'll just have to try to keep as clear as I can as ask for leave as soon as dates are agreed
I have set out what claim is for, advised of a potential settlement (as went to appeal and acas conciliation before et) and requested docs from them.
Felt so certain of everything til it goes further then the questioning makes you doubt yourself.
Can't call any witnesses as is a small office of 6 and the rest still work there
Just make sure that you can give "dates to avoid" such as "I'm on holiday for a week in August". You will be expected to attend the agreed date as it will be agreed far in advance. You've brought the case so if you can't attend it's your loss. The ET won't want to hear that you might not get time off work, although they will be pleased you secured another job. Have you prepared a schedule of losses? They will want you to justify any claim for settlement (such as difference in pay in your new job being less, number of dpweeks pay lost due to leaving)
Weeks! Not dp weeks- nothing to do with dp if you have one!
Also - you can call witnesses even if they work there. It's better to say that either you don't need them/ they refused/ the writen evidence speaks for itself/ you felt unable to put them in that position.
I represented a family member at ET a few years ago so before the changes.
We had a pre hearing phone call during which the judge addressed all questions to the employers lawyer without giving me the opportunity to respond. It felt very one sided.
The one thing that I wish that I had known about the whole process is that you need to pretend the judge knows nothing about the law and to present all of your evidence. Ensure that you sum up at the end and include details of all precedents in this.
You don't need to quote precedents! Really you don't.
It isn't about pretending the employment judge knows no law. It is about methodically showing the factual evidence.
The notice that advised you of the preliminary hearing will tell you what issues are to be decided at the preliminary hearing, so read it carefully. If the PH is by phone then it is likely that it will be mainly administrative (sorting out the factual and legal issues in the claim, making orders for disclosure of documents and exchange of witness statements, dates for a final hearing). But do check the hearing notice so that you know what is likely to come up. The judge and the representatives on the other side are under a duty to help you with procedure ( but they are not there to advise you on the merits of your case).
PS have you looked properly at funding? If you have house insurance you kay find that you also have legal expenses insurance. If you do then phone your insurer and see if they will cover you. There is another kind of insurance called ATE (after the event) insurance too although that is probably going to be more expensive. Also there are lots of bodies that provide pro bono advice such as the Bar Pro Bono Unit, FRU and CABs, and your union may help too. Ask the Bar Council and Law Society for help on this.
I run a specialist employment law firm.
Given that you are unrepresented the tribunal will probably change the hearing to an attended hearing if you request this. I would advise that you do since it can sometimes be difficult to deal with telephone hearings. For a claimant in person it can be tricky and can feel one sided.
I can assure you it won't be biased. The fact is however that the bulk of the admin/case management tasks will fall on the respondent and so the employment judge is likely to direct a lot of the questions to the Respondent. You will be given dates by which you have to provide all of your documents to the other side but they will be given responsibility for putting all of the documents together in a joint hearing bundle. They will then send you this bundle. You then write your witness statements by reference to the documents in the joint bundle and reference in the statements the documents you wish the tribunal to read. They don't read every document in the bundle. If you want them to read a document, refer to it in your witness statement.
The hearing isn't to make sure details on the forms are completed as a PP stated. It is however possible that at this telephone case management discussion they will list the matter for a hearing on a preliminary issue i.e. whether your illness/condition qualifies as a disability under the terms of the Equality Act. This will depend on whether or not the Respondent accepts that you had (at the relevant time) a qualifying disability.
If you can get some support with this then I would recommend you do. A disability discrimination complaint isn't the easiest of claims to run.
Tired where have you got your point about not being able to bring a claim of both harassment and victimisation?
I think that's misleading (unless I am completely misunderstanding your point). People bring disability claims involving complaints of harassment and of victimisation all the time. Do you simply mean that the tribunal will want the OP to particularise whether each allegation is an allegation of harassment or victimisation (or another type of discrimination)? If so then the tribunal is likely to give the OP some direction and guidance regarding this since its a complex point.
OP if you don't know this already the term "victimisation" doesn't mean you were picked on, it has a very particular meaning in discrimination law. It means that you (or sometime another person) made a complaint that you were being discriminated against (which could include harassment) and then as a result of you making that complaint the employer subjected you to a detriment.
I'm an ex employment lawyer. Everything Atticus says is great advice. I hadn't thought of saying it in my brief response, but I'd second requesting a hearing in person. It will make you feel much more level with the respondent.
Also, reading back, I'm slightly worried that you thought that the next step would be a court date. Do you understand all the preparation (a lot of which has been referred to on this thread) that happens before that?
Also, as was touched on, if there have been settlement discussions and you have a new job, do you have a realistic sense of how much your claim might be worth. There are other elements to discrimination cases, but your financial loss as a result of the discrimination is a big component - how quickly did you get another role and does it pay as well?
It's not me that was dismissed it was dh. I am representing him as he feels he isn't able to deal with it himself
I enquired all across my local area and no one will do probono work
Have legal cover on home insurance but they are useless, have to await a callback each time, if I miss the call I have to re - request it.
I can't ask for a face to face as it is next week and already had to reschedule as we had a holiday booked (paid for before hubby lost job)
Libraries - I appreciate there is more to it than 'just going to court' what I mean was I expected the next 'gathering' of everyone to be in court due to the fact we have already exchanged a lot of paperwork though realise this will need to be resubmitted for the bundle but expected more of a paper exchange or email (don't know why) to establish this
I guess I just wanted reassurance it IS doable essentially representing 'yourself'
This has been going on approaching a year now and I appreciate the call may be one sided but judges questions can't be worse than constant denial of anything happening which had been their stance so far
Will bear in mind the not calling witnesses as don't want to put them in that position
We drew up a schedule of loss during conciliation but they were unwilling to entertain any discussion
Hubby still not able to work due to MH and in fact isn't himself at all losing all independence and can't walk by the office he worked at. His anxiety is terrible to the point he completely freaks out if he sees someone he worked with in town
The letter advised the call is to establish the basis of the claim but is still fairly vague (in my opinion, as it's 3 bullet points and we have pages of diaries notes emails etc)
Thanks for all the advice
If the call is to establish the basis of the claim you need to be able to explain very clearly what you re arguing.
So it is disability discrimination. Was he dismissed or did he resign. If he resigned, you are going to have to prove various things. Were the actions against him direct or indirect discrimination? Harassment? Victimisation?
It sounds like the judge doesn't feel it's entirely clear exactly what legal points need to be answered. He/she will walk you through that on the day.
Thanks again libraries
He was dismissed, though wanted to quit many times but I encouraged him to stick with it.
I now feel guilty as he is still unable to work, maybe if he'd cut his losses and walked he could have been in a better mental state and got a new job
(Beats myself up)
OP I think you should bite the bullet and get a bit of advice from a decent employment lawyer. If your DH was dismissed that may well have been legitimate even if it was because of the fact that he has a disability, all will depend on the facts.
If you are unhappy with the law firm your insurers have put you in touch with you are perfectly within your rights to tell them you want to instruct your own lawyers paid for by the insurance. They will try to fob you off and will insist on very low rates but many specialist firms will still take on this work. There have been recent changes in this area and as a result the insurers will back down and let you instruct new lawyers.
PM me if you want. I may well be able to recommend someone in your area.
If you are going to go ahead on your own then you need to be able to summarise in a few sentences what happened and why you think it was discriminatory since the employment judge will not listen to all of the facts of the case at this hearing.
So for example
DH started working for the company in x. In x he developed [condition]. This impacts on his [mobility/ability to concentrate on normal daily tasks/other impact from list etc]. He was still able to perform his duties but required [x] by way of reasonable adjustment to his role. The respondent refused to make the requested adjustment despite DH asking numerous times and providing medical evidence supporting his request. As a result DH was unable to attend work as much as he would have been able to with the adjustment due to the impact on [his ability to x]. He was taken through a capability process and dismissed after [x] months and [x] meetings despite the fact that medical evidence from his consultant confirmed that his condition is likely to satisfy the test under the equality act and confirmed that the requested adjustments would remove the disadvantage caused as a result of his disability.
The impact on DH has been severe and he is currently suffering from [stress/depression/anxiety]. He is currently taking medication for this but without the medication would not be able to [x]. He is unable to work and as a result has suffered significant financial loss.
We believe that the Respondent has [failed to make reasonable adjustments/directly discriminated against DH/ indirectly discriminated against DH/harassed DH/victimised DH/the treatment amounts to discrimination arising from disability].
Thanks again atticus
My insurers haven't put me in touch with a lawyer as such it's legal advice over the phone and seems to be very generic advice. I did ask if there is a way I can submit notes etc for review but they said I can just call
Re your example statement, we did something similar when we appealed but more wordy with examples, will summarise it for Friday. Will also see if I can pm you if I can work out how!
Atticus yes I am refering to particularising, and this is based on the direction of the judge at my PHR.
I think you've interpreted it slightly incorrectly though tired. Easy to do but in your case the employment judge would have been saying that they wanted to know whether a particular allegation was victimisation or harassment and in your case it couldn't be both. That doesn't mean the same applies in law as a general rule and that a discrimination complaint can't amount to both harassment and victimisation.
As I said "you can't claim a single incident was both victimisation and harassment" Atticus. The overall claim is likely to have a variety of incients, which will be particularised. And yes the Judge will give guidance on that (well mine did)
Also atticus, my memory isn't great but the reference in the act is numbered point 125 or 129 and is specifically with regards to disability- for example a single incident of racial discrimination could be both.
I'd be interested to know where that is but its not 125 or 129 (genuinely interested, I'm not being stroppy).
I'm not saying it's definitely not in there. There are lots of quirky things in employment legislation. If however that is the case then its a very niche point which I've never come across in 15+ years of practising employment law and having had a quick scan through the leading employment law texts doesn't appear to be flagged anywhere and so its unlikely to be an issue the OP needs to worry about.
Chapter 2, 26 and 27 sets out the differences between harassment and victimisation
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