Please help-employment tribunal

[banana87]

I received a notice that I am being taken to employment tribunal by someone whom I did not employ. She is taking her ex-employer as well but it seems that since it was my report that started an investigation against her and resulted in her being suspended, she is taking me as well. Can she do that?

[carocaro]

Do you still work for the same company? You might be called upon to give evidence at a tribunal, but you won't be to pay her anything. You in HR? What did your company say to you?

[RickGhastley]

Don't worry, you will be appearing as a witness, her case is against the employer who suspended her.

Don't worry!

And if you are worried about appearing I suggest you call the Tribunal, tell them you would like to come along and watch a case being heard (I told them it was because it would be useful to my work). I did this before I went to Tribunal and it was so useful to see how things work, gave me lots of confidence.

[prh47bridge]

Is this person calling you as a witness or taking action against you? If she is taking action against you, what is she claiming?

[banana87]

I have my own business. On the claim form she lists me and the company she worked for as the people she is claiming against. The top of the form says her name vs. my business name & others. I do not employee anyone, as I am a very small business.

[banana87]

Meant to add, she is claiming that she was forced to resign because she was suspended for age and race.

[flowery]

If you're a one-man-band with no staff what's your connection with this individual/ the circumstances surrounding her resignation? Why might she believe you have a case to answer?

Bottom line is the response to her claim needs to go on an ET3 form which I imagine the information you've had from the tribunal says. You could submit the ET3 saying the claim against you is invalid as you are not the employer.

[banana87]

According to her claim, it was my report that resulted in her suspension and I think she is saying I discriminated against her as well. I am listed as respondent 2, the employer is listed as the main respondent. I have until the 21st to submit my response, so I am right to say it's invalid?

[RickGhastley]

Yes banana, you should reply and say that you are not the employer.

It was her employer who suspended her, not you. You may be called as a witness though.

[banana87]

Thanks Rick, you have saved me seeing a solicitor. Do I need to just write that I did not employee her, or do I need to address the points she raises that are relevant to me as well?

[flowery]

Sorry you didn't find my post useful, but it's polite to say thank you anyway.

[YourLaw]

Banana despite what is said above this person can bring a claim against you as an individual if they say that you have discriminated against them in connection with their employment.

You MUST fill in the ET3 and send it back to the Tribunal within the time limit or you will not even be allowed to defend yourself.

[StillSquiffy]

You wrote a report on her? I can only assume that this was either a medical report (in terms of capacity to work if she had been off sick or similar) or some kind of reference?

Normally the employer/employee relationship is a pretty robust criteria but I am fairly sure that anyone who has a professional work-based relationship can be taken to tribunal - this is normally thought to be only professional bodies (eg if they unfairly bar you from working or similar) or trade unions, but it can cover other business relationships. If you owe them a duty of care which you have potentially then breached then I have always understood that this would normally be heard in normal courts (where compensation can be greater) but that it can be heard in tribunals. I could be completely wrong because I have never encountered this, but that has always been my understanding. A specialist lawyer would be able to confirm by telephone for free.

You'd have to give us more detail about your capacity and the nature of report in order for us to advise more fully (or if you don't want to go into detail you do need to call an employment lawyer)

[mranchovy]

Do you have professional indemnity insurance? If so you need to notify your insurers and ask them how they want you to handle it. If not, get a lawyer.

The information from babybarrister and squiffy is my understanding too: whilst the employee does not have a claim against you for unfair dismissal because you did not dismiss them, they may have a claim against you if you have unlawfally discriminated against them, and because this is in an employment-related matter, the Employment Tribunal has jurisdiction.

[banana87]

Thanks for your replies. I have made an appt with an employment solicitor but I am still interested in what you have to say.

The situation is that I work with children with disabilities. I was privately contracted by a child's family to observe him in nursery. On the day of the observation I noted the Claimant holding the child down, and reported this. She was subsequently suspended. She is now saying I (and the employer) discriminated against her race and age. However, she was the ONLY person with this child this day so that is IMPOSSIBLE.

I did not have professional indemity insurance, though I do now (since receiving this claim) which is my fault for being stupid.

[hermioneweasley]

if the facts are as stated, it doesn't sound to me like she has met the required standard of proof to say there is a case to be answered. speak to the solicitor about a pre hearing review.

[mranchovy]

I did not have professional indemity insurance, though I do now (since receiving this claim)

Hmmm, thinking about it, some PII excludes third party claims (mine does for instance which means that I always need to ensure that the work I take on does not give me a duty of care towards anyone other than the client) so it would be wise to check that your new insurance would cover you in a similar situation in future: in your field that is probably essential.

[YourLaw]

Banana, it is not 'impossible' that you were discriminating but, I would think, that it is highly unlikely that your were discriminating.

The problem about discrimination law from the point of view of the one accused of discriminating is that there is almost what lawyers call a reversal of the burden of proof. That is to say that If there are facts from which the tribunal could decide that you discriminated then you have to prove, on the balance of probabilities, that you did not discriminate.

You do need a good employment lawyer and, depending on how the Claimant's case is put, you may be able to get the case against you removed.

Let us know how you get on.

[banana87]

This makes me so angry. She was the one who restrained a non-verbal child with autism. And admitted it. She and another member of staff were both suspended (the other member of staff was not there on the day of my observation but had also admitted to using the same procedure). My report also told of a (white) member of staff who was speaking inappropriately to the children. So how did I discriminate? Just venting, I know none of you are saying I did discriminate, I just cannot believe this person has the audacity to claim discrimination after what she did!

[banana87]

Ok so I spoke to Head of Workforce for the NHS today (they are the employer) and the lady there said they would get me out of it, but has not seen the claim. I told her I was seeing an employment solicitor and she told me that is not necessary. However, I am away next week for 2 weeks, and I only have until the 21st to respond to the claim, so think I should still see a solicitor. What do you think?

If it helps, there is only 2-3 points that are made in the claim that have to do with me. 1 says the claimant did not understand why I did not go to her and question her practice. There was a 3 week delay from the time of the observation until the investigation, but that is managements fault, not mine. 2 says is that she was suspended following my report and 3 raises the issue that OFSTED were contacted in the absence of any "tangible evidence" following my "allegation". The only other bit that has my name is where it says that she is claiming against myself and the employer for age and race discrimination. There is another point in here which states that the Claimant admitted to using the particular procedure I witnessed as it was "common practice".

[banana87]

Just to update that I saw the solicitor today which I am confident was the right thing to do. He doesn't think its even in the Tribunal's jurisdiction and is going to try and get me struck out as a respondent on that basis--fingers crossed! Thanks for all your lovely advice :)