Urgent help required in regards to Employment Tribunal

[star88]

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[Weird Al Yankovic]

Hello and I'm sorry for your situation.

 

I went through similar which took about a year out of my life and to top it all my claim was struck out as out of time by the ET despite my having certified doctor's notes that I was suffering stress.

 

All of this and I was representing myself and conducting my case with an illness.

 

My experience is that an ET are very rigid and quite unforgiving.

 

Imortant points here in your case-

 

1 You say it took your employers 3 months to investigate. This is exactly what happened to me but your employer knows what they are doing by stalling.

 

If you have submitted your claim after this 3 month period, which could be 3 months after the incident, or last case of bullying, took place, then the ET may strike out your claim as being out of time, just like me.

 

2 Conducting your own claim, whilst ill, did not wash with the ET in my case who still struck out my claim.

 

3 If some documentation is not marked 'without prejudice' but correspondence prior to this was marked as such then it is taken that as long as the correspondence was of the same subject, ie settlement, then 'without prejudice' missing in subsequant letters will not matter.

 

So no, you would not be able to refer to this at the ET or to have witnesses support you on this point.

 

4 The chairperson was right in saying this should not have been revealed to the ET and he/she may decide to reduce any award should you win your claim or even make a costs order against you should you lose for doing so.

 

Your employers will no doubt ask for this in due course anyway.

 

It really is a difficult situation you are in but I too found it almost impossible to get anywhere with anybody.

 

Best of luck.

[star88]

Hey, thanks so much for your response. I have been feeling like I am completely on my own with this.

 

If this is the experience others have had (I have been told that they have contested that my claim is out of time), and it is evident that delay tactics have been used (with evidence), how on earth are people like you and me supposed to get justice for being wronged? I have evidence that the organisations grievance process was not followed, that the delays were unjustified, yet the ET which is in place for people like you and me side with the big company with a Legal Dept and endless funds. It seems the system has let so many people down, I wonder if there is any point going any further with this, disappointed is not the word...

[Goldlady]

The ET's will allow claims out of time with good reason. And I know from personal experience that you can still go ahead with the claim which they will have to fully defend even if it is out of time. (I did a claim six years afterwards for sex discrimination after my job was terminated when I got pregnant - the full hearing went ahead and it was only at the end, after my ex employers had spent a great deal of money on defending it, that they decided it was out of time). So please don't let this put you off.

 

I suggest you go for the ET yourself. You will get lots of help from the Chairman and other staff there. Don't let this one go.

[advisee]

Be aware that the amount offered in a compromise agreement will, typically, be higher than what you are "strictly speaking" entitled to (purely because they will not have ongoing legal fees to pay).

 

However, you are perfectly entitled to make reference to the compromise agreement (without divulging its contents) an as example of where they have breached their implied duty of mutual trust and confidence.

 

Are you still employed? One course of action could be to submit a grievance asking why the company have proposed a severance agreement with you - this has the advantage of bringing it into open correspondence (rather than "without prejudice" correspondence)

[star88]

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[advisee]

Don't need grounds for victimisation.

 

Do I understand correctly that you have submitted an ET1 even though you are still employed?

 

If you are still employed, then there is no way that your claim can be out of time!

[mortlake]

From experience I can only sympathise. Lawyers seem to get quite irrational with stress and bullying cases.

 

Cheap telephone legal advice is available from Which Legal Service (£12 a quarter) and less specialised telephone advice from Co-operative.co.uk legal service if you join the co-operative, which is free.

 

I've put the links on Employees.org.uk/#DIY-employment-law

 

My experience was like Weird Al Yankovic's, below, but the chair did decide that the dismissal itself was in-time as Advisee said below. Then he decided that the evidence was out of time. I think a lot depends on first impressions and who you get a chair for the pre-hearing review.

 

Rare to use a tribunal against a current employer, particularly a bad one.

Good Luck!

[Weird Al Yankovic]

 

Do I understand correctly that you have submitted an ET1 even though you are still employed?

 

If you are still employed, then there is no way that your claim can be out of time!

 

Of course it can-it happened to me.

 

The ET looked at when the last incident I had complained about took place and the date of my ET claim.

 

As it was more than three months the ET dismissed my claim as out of time.

 

Like the OP's circumstance I made the ET aware that my employer's had obviously dragged out the investigation (for over three months and was still actually being investigated when I submitted an ET claim) but this was no excuse not to bring my ET claim within the correct period.

 

I was still employed so I then resigned.

[star88]

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[star88]

I think a lot depends on first impressions and who you get a chair for the pre-hearing review.

 

Totally agree, the Chair at my last CMD had problems with me even before I spoke, he was very rude and had clearly made his mind up about who he favoured. I hope I get someone more impartial and understanding for the next one.

[advisee]

Of course it can-it happened to me.

 

The ET looked at when the last incident I had complained about took place and the date of my ET claim.

 

As it was more than three months the ET dismissed my claim as out of time.

 

If this is an ongoing harassment, then it is likely that it will not simply have subsided.

 

Also, I believe that if the dispute resolution procedures are invoked, the three month limit is extended to a six.

 

To star - take a look at Employment Act 2002 (Dispute Resolution) Regulations 2004 do as much reading as you can. Sections 6 and 15 appear to be relevant.

[paulgmb]

On top of all the other advice you have received if you intend to stay with the local authority can I suggest you join one of the Trade Unions of which there are 2 or 3 to choose from?

 

They would have been able to take this case on for you and taken a lot of the stress and worry of having to deal with this case all by yourself.

 

Good luck!

[star88]

Advisee: Many thanks for the link, I will study the Act, hopefully it will help.

 

Paulgmb: To be honest with you Trade Unions are very useless in these situations, I have a friend who is going through a TU who works with the Local Authority. They seem to avoid taking any action and are very reluctant to help in any case like this. As Weird Al Yankovic mentioned, when you are going through something like this nobody wants to help. All the usual places such as CAB, ACAS, Law Centres state that they are 'here to help' but my experience has been very dissapointing. Money talks in these situations, unless you can get a good Solicitor to represent you, you really are on your own. Finding a good 'no win no fee' Solicitior is even hard.

 

I will keep you all updated.

[paulgmb]

Hi again,

 

We will have to agree to disagree on this one then. I have helped loads of people over the years who work for Local Authorities and on the whole they are (or can be) good paternalistic employers until something goes wrong. Then if you are not a member of one of the 2 or 3 Trade Unions recognised by the Council you are really up against it.

 

For a start the Council will have an HR department who are supposed to be neutral but always advise and support managements case, a huge tear of management going from Supervisor level right up to Directors, Chief executive and the elected members, not of course forgeting the councils legal department where they will have at least one qualified solicitor. This is a huge animal to deal with and a daunting task on your own, hence the reason most staff in Local Authorities are members of one of the Unions.

 

The solicitor you consulted regarding the compromise agreement does not sound very familiar with employment law as the clause you mentioned is pretty standard hence the reason after speaking to the 'other side' s/he changed their mind. Their are exceptions to this clause for example if you had a P.I (personal injury) claim ongoing then an exception to this could be incorporated. A Union would have provided you with an employment solicitor to advise you and insisted (as is the norm) that the employer pays for this advise. Did you pay for this solicitor?

 

You say you have got advise from a number of sourses but you cannot beat having someone in the room or tribunal with you on the day. With the employer this would be a trained representative or full time official from the Union and at tribunal usually a solicitor or even a barrister. Not bad for around £2.50 per week?

 

If any Union rep in the workplace (you quoted a colleague who was not receiving much help) is not doing their job, contact the local office and ask to speak to the Regional Organiser and either ask for another rep or ask for their assistance directly. If this doesn't work then like I have said, with Local Authorities there are at least 2 or possibly even 3 Unions to choose from.

 

You are up against it but I do wish you luck.

 

Regards,

 

Paul.

[advisee]

The solicitor you consulted regarding the compromise agreement does not sound very familiar with employment law as the clause you mentioned is pretty standard hence the reason after speaking to the 'other side' s/he changed their mind. Their are exceptions to this clause for example if you had a P.I (personal injury) claim ongoing then an exception to this could be incorporated. A Union would have provided you with an employment solicitor to advise you and insisted (as is the norm) that the employer pays for this advise. Did you pay for this solicitor?

Paul, agree with all you say.

 

One small thing, in addition to an ongoing PI issue, signing a compromise agreement would usually not affect any possible future claim (e.g. in the future from sitting at an uncomfortable desk, or from asbestosis, etc) - also a compromise agreement would not affect accrued pension rights.

[star88]

Thanks for your responses. I guess I am up against it, but then again having nothing to lose so may as well take it all the way on my own. Yes they ended up paying for the compromise agreement, but this was decided over 4 weeks as at first they said that they would not pay. Every solicitor I spoke to said that usually the employers pay so I stuck to my guns. It added further delays however... I'll keep you updated on any progress.

[majorclanger100]

Hi Star,

 

Just subbing .

 

Advisee is correct that if the dispute resolution procedure is followed with your employer then the usual time limit is extended to six months. However tribunals are extremely rigid with regard to time limits.

 

My experience was exactly the same as Weird Al Yankovitch's - I was still employed at the time of my claim yet (after a three day hearing) the tribunal decided that it was out of time. This is despite the medical evidence showing that I was suffering a nervous breakdown at the time I should have submitted the claim (and the evidence which showed that this breakdown was caused by the behaviour of my employer). Despite this the tribunal decided it would not be just and equitable to extend the time limit.

 

My advice (and this is purely from my personal experience) is to get a damn good employment solicitor if you are to go ahead with the hearing - the one you currently have clearly doesn't cut the mustard. Your experience with the Chairman at the CMD is sadly too typical - tribunal Chairmen are kings in their own court and if you get the wrong one then you are stuck. My case was a disability discrimination claim and the Chairman dismissed the medical evidence (from a leading medical expert on the condition!) out of hand without explanation, constantly referred to the condition as something else with very different effects, allowed one of the wing members to comment on the merits of the case ('I don't think Mr Majorclanger has a strong case at all', etc) during the hearing, allowed the defendants' solicitor to ask leading questions during cross-examination, and cross-examined me and my witnesses extremely aggressively in combination with the defendants' solicitor - something which he singularly failed to do when the defendants' witnesses were giving evidence. He even kept mentioning social events at which he had met the defendant's solicitor and reminisced about other cases the solicitor had been involved in and he had chaired! There is no doubt he was hostile to me from the start. I was representing myself and knew I had a very strong case from obtaining legal advice beforehand, yet felt unable to challenge the Chairman on these matters. After the hearing some of the observers (legal students) told me that they'd never seen anything like it!!! Even the defendant's solicitor said 'that was a very unusual hearing, to say the least'! I feel that if I had been represented by a decent solicitor he/she would have been able to deal with these matters - or that the Chairman wouldn't have even attempted to run the hearing this way if I had been respresented.

 

The tribunal system is meant to allow access to justice without the fear of high costs, and to be simplified to allow the claimant to present their case in person. I naively believed this at the start of my claim - it just isn't true. It is subject to the same old boys' network as the rest of the legal system - and as complicated as any area of law. My hearing was the most stressful event I have ever experienced and I would never have gone ahead with it if I had imagined the damage it would cause to my family life, or the stress that excerbated my disability. After the hearing I took legal advice from counsel and was told I had an excellent case for an appeal, but decided to cut my losses and try to put the matter behind me. He reiterated that my original case was very strong and quite clear-cut - which was all the more upsetting!

 

Sorry that this is so negative - probably the last thing you want to hear is 'I've been there and it all went wrong' . However I think that if I had talked to people who had been through tribunals themselves before I started my claim I may have had more of an idea what could potentially happen.

 

Good luck and my best wishes for whatever course of action you decide to take!

 

MC

[star88]

Thanks so much for your response; wow I thought I’ve been having it bad... I’m so sorry to hear about your experience but it has been helpful as I really did think it was just me. I agree, the ET is supposedly the common man’s (or woman’s) answer to justice but it seems to be very corrupt.

Just an update: I got a letter from the regional judge saying that the chairperson has admitted that he got carried away and got his position confused as a solicitor and a chairperson. The Clerk also backed me up on my version of events at the CMD. Do you all think I should escalate this seen as though he has ruined all talks of settlement?

Although most of the time I feel very strongly about my case, and want to fight it all the way. There are times when I get so down and depressed, I want it all to be over with… this has all taken over my life and I am dependent on medication to control my emotions. We should set up some sort of support group for people who have been mentally scarred by the ET!!!

[Weird Al Yankovic]

Good post majorclanger100

 

My ET was just in front of a Chairwoman and she was a right stuck up old trout.

 

She actually took the employer's in-house doctor's opinions, who I seen just twice in 12 months for about 5 mins each, rather than my own doctor's reports who I had been seeing at least every month for a year!!

 

Her tone with myself was quite abrubt yet with the employer and their legal team she was almost gushing!

 

It really was the most awful experience.

 

One tip-apply to have the case heard by a full tribunal as there is less of a chance with just the Chair being so obnoxious and one member will be basically a worker, such as a trade unionist, and not some pen pushing geek.

[star88]

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[installspark]

Just a quick note on the time period for claims and ET. The normal limit is 3 months from date of incident, this can be extended by 3 months and one day provided an appeal has been made, this comes from my ET experience, my claim was made outwith the normal 3 month rule but an appeal had been made. The OP will, however, need proof of the appeal being lodged with their employer.

 

To OP, I found myself in a similar situation where no one was prepared to represent me at ET so had to do it myself (disability discrimination) and won

[advisee]

Just a quick note on the time period for claims and ET. The normal limit is 3 months from date of incident, this can be extended by 3 months and one day provided an appeal has been made, this comes from my ET experience, my claim was made outwith the normal 3 month rule but an appeal had been made. The OP will, however, need proof of the appeal being lodged with their employer.

 

To OP, I found myself in a similar situation where no one was prepared to represent me at ET so had to do it myself (disability discrimination) and won

This is not quite correct. In general, the extension only applies if (at the normal three month deadline) the appeal is still ongoing AND the employee believes that there is a reasonable prospect of resolving things by that time.

 

See recent Employment Appeals Tribunal cases of Ashcroft v Haberdasher's Askes' Boys School and Royal Bank of Scotland v Bevan.

 

If you get to this three month limit, my personal advice is to submit your tribunal claim there and then (or at least, to ensure you take formal legal advice).