ET on Monday

[etquery]

I have, reluctantly, raised a claim of disability discrimination against my employer. The case was due to be heard last year but we were sent away on the day as there wasn't a judge available. The case is now due to be heard on Monday.

I have just received a letter from the ET saying that the case will be heard by a judge sitting alone. I am a litigant in person and am now really worried that without any lay members it won't be a very balanced hearing. Something similar happened at the preliminary hearing - it was a judge, my employers legal representatives and me. I felt I hardly got a word in. I'm very worried. Has anyone else experienced anything similar? Thank you.

I am now very anxious. Does anyone know if I can appeal the decision?

I feel that panels may be more empathetic to lived experiences of disability, particularly through the employee-side member. The stats seem to suggest that claimants are less likely to succeed with judge only cases. It all feels terribly unfair - my employers already have the advantage of solicitors and barristers - now this. It hardly places us on an equal footing.

Have been in tears. All feels so terribly unfair.

I am also worried that there will be less witnesses? I will be on my own. Now slightly terrified....

As above. Litigants in person are treated very well as it’s expected that you won’t know the ins and outs of the system.
You will be given the opportunity to cross examine any witnesses so try to prepare a list of questions in advance if you feel up to it. You can read your bundle to help structure what you need to ask.

Thank you. I dont have anyone available to act as a McKenzie Friend- I approached several charities but they said they didn't have capacity.

The claim includes significant issues of workplace culture and credibility which I believe would benefit from the wider experience and perspective a panel would bring. Without the panel and not having legal representation I feel at a real disadvantage. They have previously tried to settle but dont think they will now.

We have disagreed previously about what can go in the bundle and I am worried they may try to get things struck out again. After we were sent away last year I was keen for the case to go ahead asap. They pushed back claiming their barrister was only available in a years time. In the meantime the discrimination has continued (they are still my employer) - I am worried they are going to try and say the actions have not been continuous but they have been (they have tried to have me dismissed three times because of my disability - failed each time)...

It is very unusual for a discrimination case to be judge only.

the judge will be very supportive of you as a litigant in person, especially as the respondents are represented. If you need anything explaining just ask.

Thank you. I hadn't heard of discrimination cases being judge only - I think that has scared me a little. The preliminary hearing was very focused on previous case law and I felt I hardly said anything. I am worried that, as a litigant in person, my lack of legal knowledge will really place me at a disadvantage. I hope the judge does try to explain things, im not stupid but at the last hearing it really went over my head. Fail to see how they can possibly say we are on an equal footing - having no non legal members on the panel makes me feel at a real disadvantage.

Flip side - you will be the only non legal person in the room, so the judges focus on explaining the situation is on you. Not a panel who may have some existing familiarity.

However, you need to be realistic. Without legal representation you won’t be on an equal footing. Lawyers are a specialised profession for a reason.

Take time to read the bundle, and pick out the bits that you feel support your case as the law defines discrimination. Rather than what you feel may have been unfair. You want to go with your questions prepared, not work them
out in court.

Thank you. I hope that is the case - I felt completely ignored in the preliminary hearing.

I had understood from the Presidential Guidance for ETs that the overriding objective is to deal with cases fairly and justly and this includes ,in so far as practicable, ensuring that the parties are on an equal footing. I just dont see how this is possible when one party is a litigant in person and the other has a team of barristers and solicitors. I never used to be cynical but it does make you question so called justice/ the rule of law...

OP, kindly, you are over thinking.

Lay members are not there to make the case easier, or be more sympathetic! When you have lay members, one is from an employer focussed organisation and one from an employer focussed organisation. When the change came in recently to allow judges to sit alone on discrimination claims, it wasn’t to stop access to justice but quite the opposite - as cases can progress more quickly.

I would actually also fully expect you to not get a word in at the PH if you were unrepresented. PHs are either for case management or to hear legal issues - you aren’t qualified to explain legal issues to a judge, so of course the represented party would be ask to explain things! I’ve even been in PHs before where the judge asked my opponent (a male barrister) to clarify MY clients case! It’s just how those hearings go…

The judge will give you a lot of assistance as a LIP. They won’t allow unfair or aggressive questioning. They will explain proceedings to you and ensure that you understand. They’ll cross examine witnesses. Having a lawyer often makes things easier, but it isn’t the be all and end all. Have you got a friend to bring for support? They will probably be allowed to sit next to you if you ask (apart from when giving evidence) although it’s down to the judges discretion.

I think you’ve got unrealistic expectations on what equal footing means.

It means both having opportunity for representation, it means equal access to packs and opportunity to review the content.

It doesn’t (and can’t) ever mean the same calibre of representation. Take the time today to focus your efforts on narrowing that gap. Review the pack material, write your questions and the key facts that support your claim as per the law.

@etquery I don’t know how much you know about the law or the process. In discrimination cases theres what’s known as a “travelling burden of proof”. As the claimant you need to process that something fishy has happened which might have been discrimination. The burden of proof then travels to your employer to show the reason for the odd treatment was not discrimination. It can be helpful to have that framework in your mind when you think about the questions you want to ask witnesses.at the end you will also have the chance to sum up your case.

the judge also ought to ask the questions which your legal rep would ask if you were represented (if you don’t). Preliminary hearings are often technical, it doesn’t mean that’s how the actual hearing will feel.

Thank you for the constructive comments- I really appreciate them. I've never done anything like this before - and to be frank am terrified. I went to watch a hearing but unfortunately it was dismissed on the day . I wasn't able to take any more annual leave (am using it all next week).

The case is due to be heard over seven days - I presume the first day might focus on preparations/timetabling rather than questioning the evidence but am not sure. I think they ask me questions first but again not sure. I was very prepared last year but then we were sent away - I had hoped to take annual leave to prepare but it was denied (my employer is the Respondent) so will need to work late tonight and tomorrow to defamiliarise myself.

It starts at 10am but I will aim to get there early so they can scan all my belongings etc. Will take lots of water as it looks like it's going to be hot. I have so many boxes to carry (with all the bundles) - have ordered a trolly from Amazon as I can't carry it all.

Unfortunately none of my friends have been able to get time off work so I will be alone -other than when my Dr gives evidence which she is doing remotely. All very scary. Thanks again for your advice.

im not sure how strong my evidence is. Last year they offered to settle on the day but it ws without prejudice offer so not an indication of strength. Will keep reading through the papers and hopefully it will sink in.

The Employment Tribunal started today - so scary! It will be a judge sitting alone (I didn't object ultimately it was a matter for them and they said if it was delayed any further the hearing may not be until 2027!).

It was a disaster to be honest. The judge did try to explain things like the list of issues and particulars of claim but even though he tried to explain it in lay mans terms I didn't really understand. We had lots of other problems - the recording facilities aren't working so there won't be a transcript and my Dr can't participate because she is on holiday in Sweden and not allowed to dial in. She has submitted a witness statement but was hoping to expand on it in person (she witnessed the hostility of my employer).

I am giving my evidence tomorrow. I understand that is the worst day (s) - but struggle to see how it can be worse than today....I am going to re-read my witness statement. Is there anything else that you would recommend I should prepare? Sorry if that's a daft question - just have never been through something like this before....

If you are still employed by them what is your schedule of loss?

Hello

Sorry to trouble you. I have just finished day of my employment tribunal claim for disability discrimination. I will be cross examined for a further day and then I get to cross examine the Respondents witnesses. I am a litigant in person and have never done anything like this before.

I am very worried about this- the respondent is still my employer and the witnesses are in my life management chain. Im minded not ask them too many questions - ask them about inaccuracies in their statements eg when they say we didnt have a meeting but there are minutes/emails in the bundle confirming that we did and also questioning how one of the witnesses can give evidence when he wasn't employed by the organisation at the time (presumably his evidence is based on reports from his reporters?). But when it's simply a matter of different opinions eg if they may a reasonable adjustment soon enough I am not sure of the merit in pursuing this? Surely we will just disagree I say they should have put in place a reasonable adjustment (change of line manager for example) asap and they will say a year is fine?

Does anyone know if there is a requirement to ask lots of questions or is it acceptable to keep it short? Will their barrister be able to ask them questions as well? As I am litigant in person I wasn't sure how it works? - obvuiosly I can't ask myself questions.....

If their barrister can ask questions of their witnesses do they go directly after me? If so I may best filling some of the time (with obviously appropriate questions)?

Thank you for any help you may be able to give.

IANAL and others maybe better placed to advise.

I would focus on picking up discrepancies e.g. no meeting but meeting minutes in the bundle.

WRT the reasonable adjustments probe why a reasonable adjustment could not be put in place. If they did not follow an occ health recommendation ask them why, - how they were better placed to judge than a medical professional?

Only ask the questions necessary to get relevant evidence, don’t try and fill the time.

They will adopt their witness statement then their barrister may ask a few supplementary questions. Then it is your turn to cross examine. You do need to put your case, so if you say they did something wrong, you should put it to them. Don’t worry if you don’t get anywhere - even with seasoned barristers it’s rare that a witness completely breaks down! After that, their barrister can re-examine, but only on points that you had raised in cross examination. I’m sure the judge will help and give you some latitude. If judge for example suggests you ask a question or put a point to the witness, then do so. Good luck!

Your being unreasonable. A judge will do the job required just the same as a panel. Been to a few ETs and they do their very best to support the litigant.