Employment Tribunal - Bundle

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Hello

I would be grateful for advice/ any experience people may be able to share with me about handling this issue.

I have raise an ET case against my employer. We have had the preliminary hearing and now have to prepare the bundle. Before Christmas I sent them (the respondent) copies of all the relevant documents I hold as they are preparing the bundle. Today they have sent me a draft hearing bundle for my review and comment.

They have excluded many of the documents I sent them previously and consider appropriate claiming they predate the issues or are not relevant to the factual or legal issues in dispute. I do not agree. Many of the documents demonstrate that the issues are ongoing and that they were aware of issues and should have addressed them.

I have been on nil pay for over a year and so am now having to represent myself. I don’t have legal representation so am unsure about how to take this forward. Do I have to provide an argument for the inclusion of each document to their lawyers for consideration or can I just insist they are included (knowing it will probably be debated when we get to the ET?).

Sorry I can’t answer your question but have you checked whether your home insurance (usually contents) includes legal advice? If it does they will cover employment law.

Good luck, anyway.

I am a family lawyer, but in family work you can't veto the other side's documents. I suggest you write back and demand that your documents be included, and if they don't confirm then write to the tribunal to complain.

Make sure though that these are documents you will be referring to at the hearing.

I second what @Collaborate says. As long as you refer to them they should be included. Be clear only the tribunal can decide not to include them.

Thank you for your very helpful replies. I have just spoken to their solicitor. They have said that I should resend the documents I want included with an explanation for why I think each one should be in the bundle. They said they could then be put in a separate folder of ‘disputed documents’ for the Tribunal to consider.

I don’t mind resending the documents but am not sure I should have to provide a written explanation for why I want each document included in the bundle?? Unless I suppose it helps the court ??

As this is the Employment Tribunal, they are right that the bundle only includes agreed documents. They cannot refuse to include a document just because it doesn't support their position, but they can refuse for other reasons. As they want to exclude some of your documents, you will have to ask the tribunal to consider them and will need to explain why they are relevant and/or necessary for your case. That is why your employer's lawyers are asking for a written explanation for each document.

Thank you. Does that mean the written explanation is for the tribunal rather than the respondent? Does it have to be a written explanation ?- I can’t explain it orally at the tribunal?

Documents should only be in the bundle if they are mentioned in witness statements or will be the subject of cross-examination in the hearing. They must be relevant to the proceedings.

Your employer's lawyers are trying to put together an agreed bundle. If you tell them why you want documents in the bundle, they may agree that they are relevant and include them. That will save the tribunal's time by reducing the number of disputed documents. If you refuse to explain, the documents will continue to be disputed.

The tribunal expects both sides to co-operate in preparing the bundle and agree as much as possible. Even if your ex-employer's lawyers still refuse to put these documents in the bundle, the fact you have provided written explanations will show that you have tried to co-operate.

Remember the tribunal doesn't read the bundle, they only read the documents you refer to in your witness statement.

So, your statement might say "the first time this happened was by email from X to y, which can be seen at page 23 of the bundle" (everyone turns to page 23, judge nods, you carry on) "later, they investigated and asked me some questions, the notes are at page 42" (everyone looks at page 42 but noone reads pages 24-41, because you have not referred to them). The other side will add things in and they'd cross examination may be "please turn to page 24, do you recall that email from X to you" so now people will look after that page.

So, if you state for each document "I will be referring to this in my witness statement" then they can't really leave it out. But there's no need to put old, out of date "background " documents in because this is not what your case turns on. I've prepared loads of bundles, but I have to say that despite claimants asking for all sorts to go in (and then never referring to them) I've never refused to include anything.

Some tribunals do put quite tight restrictions on the number of pages (especially Bristol!).

Thank you that’s really helpful. I’ve never done this before so was unsure. I don’t want to overly burden the Tribunal (the respondent is including lots of policy documents that total over 400 pages!)

However there are documents that I will be referring to in my witness statement and think need including: to prove that some of the issues under consideration by the Tribunal were ongoing for a significant period of time; to establish what the Respondent knew (eg about my disability and availability /nature of jobs in the area I was allocated to ); and their behaviours (their own investigation report identified significant failings but they want the report discarded even though I raised the ET before the report was completed, claiming the report isn’t relevant as they have accepted the findings but I feel the ET should see it (the conclusions and recommendations will definitely be mentioned in my witness statement).

I will provide a written statement. It is frustrating that I have got more work to do with tight time pressures. I have done everything in accordance with the courts orders whilst they have consistently missed deadlines eg the bundle was meant to come to me before Christmas but didn’t because they went on leave , another deadline was agreed and again they have missed that . I suppose It is what it is but frustrating…

Deadlines often get missed, it is annoying.

You can't really refer to things that happened after you put the claim in I'm afraid, you'd have to ask permission from the tribunal to amend your initial claim to include it.

Mind you, if it was underway when you put the claim in, you can. Or, you can cross examine them on it if they mention it in their statements.

They do need to include policies, this is probably to your advantage though because I would assume they have breached them. You could refer to this in your statement.

Re the background, yes, those sound like important things. So tell the other side that the documents you want included are those you will refer to in your witness statement.

But you do need to be slightly cagey about the statement. The rule is that you agree a day and time to swap and you both press send at the same time, so neither side sees the others statements before they do their own. This is important, don't let them dupe you into sending yours first or anything. And don't give away too much of what you might be saying because it gives them a chance to cover it off in advance and you really want them on the back foot having to explain things cold to the tribunal when you cross examine. This is the same for yours and your own witnesses statements.

Hi

Sorry to trouble you but I would be grateful for your advice.

The solicitors representing my employer (the respondent) have finally agreed to include the documents I submitted at the back of the ET bundle but with a heading that the relevance is disputed (fair enough).

I had sent all of the documents I wanted included to them with a table of contents ,grouping the documents together as appropriate . So, for example , i had included all the documents I had submitted for my appeal with the relevant supporting annexes behind .They have ,however ,split them all up - some in date order and those documents without a date just dumped at the back of the bundle.. This means the documents don’t really make sense .So for example medical reports and emails that supported my appeal now appear before the main appeal document. Without the context of the appeal document I can see you would question why some of the documents have been included but they were key parts of the appeal. I don’t know how this normally works. I thought it made sense to include all the documents of say an appeal and not be selective but if they are going to be presented like this does it make more sense to only include parts? Alternatively would it be okay for me to ask their solicitors to amend the table of contents to make it clear when a document is ,for example, an annex of another main document ?

As it is at present that section (my documents that they have disputed the relevance of ) now looks a mess.

Apologies for asking but I’m not sure what I can ask to be done and what is normal practice. I get that having things by date order is helpful but ,for example, splitting up a cover letter and the contents/annex doesn’t really help with navigating the bundle?

You refer to them in order and also be careful my experience is to take copies x 4 of all documents - my documents are usually in a suitcase - you can point out to the court that they have dumped all your documents on the wrong order in the bundle - make sure all the pages are there and numbered. Just refer to page 923 or whatever. Eg see my email of 16 Dec 2021 on page 923 you were aware of my disability

Write to tell and tell them to put your documents in the following order

page 1 application form etc
page 17 CC
page 26 and so on

label them clearly pdfs are great.

Ask them why there are disputing document 1. Is that a copy of contract / flip it. Why have you disputes my copy of my contract? Etc

I have my statements ready normally they get sent at 4.55 pm and then you send yours at 4 59 and the deadline is 5 pm or the next day 🤦‍♀️some people like to go up to the wire. You can also make sure your documents are all printed multiple copies - take everything.

do you have a Mackenzie friend? or a union rep?

Sorry whilst I am here : does anyone know why they may have redacted so much information? Can this only be done if it’s legal advice or could there be other reasons? Over 20 redacted sections. Could I ask for the information under a subject access request? Sorry if that’s a crazy idea (I have never done this before nor raised a SAR). Thank you.

We can't answer that because we don't know what documents they are so won't know why they are redacted.

You can only get it under a subject access request if it's your personal data, which if it is I can't see why they would bother to redact it. I would imagine it's other people's personal data and/or commercially sensitive.

If you think you need it you can write to the court to ask them to order the other side to release it. Or it maybe to protect witnesses.

Re the docs, it actually doesn't matter what order they are in. Don't forget, the judge doesn't actually read the bundle, and what they do read the don't read like a book in a linear way.

Just make sure the documents you are referring to have page numbers and that you refer to those page numbers in your witness statement. If you're not referring to them in your statement that's a good argument to suggest they shouldn't be on there to be honest, because no one's going to read it.

If you sent over documents without dates on why do you think the other sides lawyers would know where you wanted them put, out of interest?

In my experience, claimants always want far more documents in bundles than is necessary.

Thank you. I sent the documents with a table of contents using the same format as the Respondents’ solicitors had used. Given they had said they would just be adding them at the back of the bundle with a heading that they disputed the relevance I didn’t expect them to spilt them up : why not just stick to the structure I had sent them over in?

it’s hard to describe here but for example re: my appeal document it consisted of the appeal form (personal information etc) and the actual appeal as an annex. They are now in completely different parts of the bundle.i understand that the tribunal won’t be reading through the whole bundle but it makes it hard for me to navigate. I don’t know why they had to change it?

i am keen not to include documents that are unnecessary but there isn’t a lot of advice. If for example there has been an investigation (with lots of annexes) and you want to refer to parts of the investigation in your witness statement do you need to include the whole document and annexes or is it acceptable to just include sections of the investigation report that are relevant and no annexes?

In your example you'd need to include the whole document. But why haven't the included that, surely it was their investigation? They can't dispute their own investigation.

What is their defence, in summary?

The judge won't like there being two contents lists.

Thank you.

During their investigation (within the timeframe of the ET) line management made some pretty odd statements (for example said that I wasn’t disabled or ill despite having medical records , OH reports and my Dr actually contributing to the meeting saying the opposite). I appealed the decision that was reached by the investigation report and won. But , although their lawyers have said that they acknowledge that I am disabled in practice they don’t and have taken nearly ten months to put in place reasonable adjustments (not expensive or very difficult eg changing managers in a huge organisation).

They just appear very angry : because the findings of the first report were overturned and I have taken an ET? At times will barely speak to me , don’t invite me to meetings etc. it’s awful.

I would like to include the original investigation report as it is in time and shows ongoing behaviour. They say it’s not relevant as they have accepted the findings of the appeal. Hence the dispute?

If there was written evidence in the report that shows them saying you're not disabled, that's disability discrimination right there and that's why they don't want it in there.

Not to mention the rest of it. Though I can't really see how having a different manager would be a reasonable adjustment. Not saying it wasn't reasonable for you to want or need another manager, just not sure how if relates to disability.

It sounds like you need representation. Have you approached the free representation unit? Have you tried your home insurance or any charities?

Thank you.

The Appeal Manager recommended a change of management and or redeployment as a reasonable adjustment as the old manager insisted I wasn’t ill/disabled and the relationship had broken down.

I was initially entitled to legal aid but now I have gone back to work am no longer entitled so I am having to represent myself now . I did approach the disability law service but they haven’t got back to me (I know they are very busy). I was also going to approach the free representation unit but understand they are also busy. It’s hard juggling long hours Monday- Friday (did 8-8 today) with preparing for the ET and trying to contact charities. I have asked for some annual leave : hopefully that will enable me to get help/get a grip.

You would prepare your own Supplementary bundle with what's missing, include an i
Index

1. Email C to R 20th January 2023
2. WhatsApp photo 3 March 2023

Ect Page numbers bottom right hand corner large black , I recommend 1A,2A,3a to distinguish from the main bundle which will be 1,2,3 4 ect . Send it to the courts and copy R stating you are supplying a Supplementary bundle ,which you will rely on in court and will refere to in your witness statement

Just say 'I intend referring to this document at the hearing'

Just as an aside, just checking you are aware tgat you can take/be paid for statutory holiday whilst off sick, just as if you were working. It's complicated to explain but if you didn't take any holiday in the last leave year, you can carry forward 20 days onto next leave year and must take these carried forward days within 18 months of that leave year commencing.
To apply, just do it how you would normally. Include the following wording:

I write to request to take statutory holiday on xxx.
For the avoidance of doubt I am requesting to take accrued statutory holiday, which I am entitled to, instead of sick leave on the above dates.
I should be grateful if you would afford me the courtesy of a reply via email.

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