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Anyone been to a tribunal for mental health discrimination?

(5 Posts)
Fagin99 Sun 14-Jan-18 00:39:09

Hi everyone,

Long story short, I was suddenly dismissed from my job before Christmas after 18 months' service. No specific reason given, just general performance. However, my performance has always been good. I've spoken to a solicitor who believes I have a good case for mental health disability discrimination as my employer did nothing to help me when I told them I was so stressed by work that I was having a recurrence of depression (I declared long-term history of depression when I started). In fact, all my employer did was ask me to question if I was in the right job. They then started to dramatically increase the pressure on me and held me accountable for things that weren't in my job role.

Whilst I would of course love to win a case (I still haven't found new work) I am also very scared to try. My main fears are:

1) Will this ruin my reputation in my future career? Will I be seen as a trouble maker if I try to sue an employer?
2) How long is this likely to drag on for? (The solicitor believes it will be settled out of court, but still...)
3) Can my employer's solicitor's demand to see my medical records? I have nothing to hide, but I'm so frightened of them trying to bad mouth me / make me to sound like I was unstable etc.

My self-confidence is shattered as a result of this whole experience of working with them. I should have left long ago. I know I have a good case when I look at the evidence I have (emails etc) but I just don't know if I could take another blow if I lose.

Any advice or experience much appreciated xx

daisychain01 Sun 14-Jan-18 06:29:33

A few comments and responses to your questions.

- going to Tribunal is costly, and you and your Solicitor will need to be confident you have sufficient tangible evidence to support your case, ie that you can prove they were aware of your MH condition during your appointment, and that even when you asked them for support they failed in their duty of care under the Equality Act.

Taking an employer to Tribunal is costly. There are no Tribunal fees (abolished in Feb 17) however legal fees can amount to £3,000+ esp if you go for legal representation at Tribunal. This is money you cannot get back even if you win. If you get an Award, it could be significantly eroded by fees. Your employer won't be paying out of their own pocket, you will. Do you have legal cover under your household insurance As you have an "event" to claim against ie dismissal, you could recover a large proportion of the fees if you win. Could your Solicitor do a no win no fee approach to mitigate cost?

1) Will this ruin my reputation in my future career? Will I be seen as a trouble maker if I try to sue an employer?

Not necessarily, if you have a good work history, focus on that with any new employer. Of course, you would never mention you'd gone to Tribunal - it's possible HR departments use the Gov.co.uk website, Tribunal Decisions, but you could write to the court and say you want to exercise your Right to be Forgotten under GDPR (from May 2018 onwards), so they take your record off Open access.

2) How long is this likely to drag on for? (The solicitor believes it will be settled out of court, but still...)

It could take 6-8 months. Several things must happen - you need to lodge your ET1 to start the process (your Solicitor should be guiding you on this) It must be before 3 months + 1 day since your dismissal. The court will then confirm the date of your hearing, which is often several months. Meanwhile your employer has to respond to your ET1 with their ET3. Also, at any point your employer could decide they want to end this, to mitigate their costs, and may make you an out of court offer, under a negotiated settlement. So it could be a lot quicker. But very often Respondents (ie employers) drag it out in the hope the Claimant (you) will back down.

3) Can my employer's solicitor's demand to see my medical records? I have nothing to hide, but I'm so frightened of them trying to bad mouth me / make me to sound like I was unstable etc.

They can request access to your Medical Records, your GP will never give them without your permission. You have every right to refuse, and you could commission a report from your GP costing about £75 which is a much better way of doing it because you are in control, and your GP will give strong evidence of your Medical condition. You could pay a visit to your GP and talk through what they could include in the report. Your Solicitor would submit this in your Court Bundle as a key aspect of your evidence.

Has your Solicitor suggested a merits assessment? This involves a barrister reviewing your case and assessing likelihood of success at Tribunal, ie is the case strong, do you have the right kind of evidence, how does your case compare to legal precedent (tribunal cases won and lost). This would cost c£750, but could save you the stress of taking a weak case to Tribunal and coming away with nothing. A barrister is able to assess better than a solicitor.

I hope this helps you make the right decision for you,

neverknowinglynormal Mon 15-Jan-18 01:14:45

Hello, had a similar experience of being treated badly for a mental health condition and then being treated worse when I complained that I had been treated badly. I am sorry that you are going through this. It is totally rubbish.

What I'm thinking:

You don't have to have 2 years' employment in a discrimination case.
It's good that the solicitor thinks that your case is good.

If you were always open about your condition from the start, your employers were put on notice that they might need to consider reasonable adjustments for your condition/ disability (if it was something that had a substantial effect on your daily life). When you then explicitly said that work was affecting your condition, they were then in a position of having a duty to consider if you a)were likely to be classified as having a disability e.g. by asking occupational health and b) what adjustments they could and should make for you to remove the substantial disadvantages that you were suffering.

Questioning if you were in the right job could be considered harassment or discrimination and certainly doesn't sound like making reasonable adjustments if it was then followed by an increase in pressure!

Will it ruin your reputation? Depends if it is public. In disability cases, if medical details are likely to be heard, you can apply for anonymity or a restricted reporting order. This would be applied for at the start and you would have a preliminary hearing to decide the issue. It would mean nothing was public or on the internet etc.

How long will it drag on for? It depends! You do the ACAS conciliation bit and then put in your ET1 claim form. They then get a month to reply with their ET3. Then there is a preliminary hearing to decide dates etc. There is then a delay of at least a few months while evidence is exchanged and witness statements are produced and exchanged. A discrimination case can be quite lengthy. If the employer does not concede disability, there may have to be a medical report produced. It may also take up time at another hearing or the start of the main one.

Now that there are no fees, the ET system is struggling to cope with demand. There can be a delay of over a year to hear cases that will last more than a couple of days, which yours probably would.

Cases are split into liability and remedy. If you won, you would hopefully have the remedy decided at the same time. However, this does not always happen and there can be a delay waiting for the remedy hearing, especially if there is a medical expert report needed if you are also claiming for personal injury as well as injury to feelings. My case took over a year from ET1 to liability hearing and then there was a delay of 7 months until the remedy hearing. If either side appeals, it delays things further, as it can be a very long wait at the appeals tribunal for cases to be heard.

That said, if you have a good case, they are likely to want to settle and quickly before they waste legal fees.

Your employer's solicitors will almost certainly demand to see your medical records if you are claiming disability discrimination and/ or personal injury. They did with me and the judge ordered them to be disclosed. You can't really refuse a judge's order if you want the case to continue. I agree with Daisy that a GP report might be a good idea as it might head off them disputing disability. If you claim personal injury, though, a GP report will not be enough and they will still want the records. You can redact anything irrelevant first. They will inevitably try to use bits against you to a point, but they will be held back from going too far by a judge and, as you disclosed your health issues from the start, there shouldn't be any need to interrogate you on small details. The records will back up your case.

I understand the destruction of your self-confidence. It is bruising. Fighting back has helped me to regain some strength at times. But you cannot guarantee how tribunals will go 100% so it is sensible to think about the damage that losing would do as opposed to the damage of doing nothing.

Daisychain is right to point you towards your household insurance. I disagree about not being able to get money back even if you win. Costs are rare in tribunals BUT possible to get if the other side behave unreasonably e.g. defending a point that the evidence makes impossible to defend. They are deemed to have been unreasonable sometimes by wasting time pretending they would win a point that you were always going to win, for example. But she is right that costs awards are unusual.

A merits assessment, like Dasiy suggests, sounds like a good plan.

I have found my experience completely stressful and draining. However, it has changed some aspects of my employer's behaviour and I am proud of that as others are not experiencing what I experienced to the same extent. It's also built some of my self-respect up again, though I have found the tribunal system less geared up for justice than I had hoped.

Good luck with whatever you decide.

Fagin99 Wed 17-Jan-18 10:48:51

Hello Daisy and NeverKnowinglyNormal,

Thank you both so much for taking the time to write such detailed replies. I really appreciate it and I definitely feel more informed.

I'm still just weighing it all up in my mind. I think my biggest fear is, apart from the potential financial loss, is the risk of any damage to my reputation as I work in quite a small industry. This fear has been intensified since I learnt about tribunal hearings being public on the Internet. I had a look at the list myself, and couldn't believe that I could access such personal evidence summaries (one case involving mental health and anorexia said she hadn't had a period for two years - I can't believe this info isn't private!! The poor lady).

It is frustrating as two lawyers have now said that I have a case, but I'm just going to think very carefully about it.

I hope you are in a better place, NeverKnowinglyNormal. Thank you for sharing your story.

Xx

daisychain01 Wed 17-Jan-18 14:05:32

If you have a strong case, I would go for it if you are feeling up to it.

You can get your Solicitor to write to the court if your case is heard and ensure there is a commitment not to put your record in the public domain. You may have noticed, in that database there are still postings in many cases which state that the Claimant withdrew their action. That is invariably when an out of court settlement was agreed. Your Solicitor can request even that is not made public, so you can be assured of complete confidentiality.

I hope it all goes well whatever decision you make.

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