Been discriminated against on the grounds of disability

[nutter192]

They did say that if the tribunal had ordered it they woudl pay an invoice to a certain limit.

 

Just waiting to hear back from them.

[Marieleeza]

They did say that if the tribunal had ordered it they woudl pay an invoice to a certain limit.

 

Just waiting to hear back from them.

 

The Tribunal will pay if you are destitute but not if you are hard up. It is not easy to get them to pay but it is discretionary and might be worth a shot. The employer's solicitor will be made aware that you are applying for assistance so it is not a confidential process.

 

The other option is for the employer to pay the total cost but that is very risky because he who pays the piper etc.

 

It can weaken your case if you do not agree to the examination but you would need specific legal advice on that.

 

You could always suggest some cheaper experts, if money is tight.

[nutter192]

Its been a while since my last update and I have just recieved an email from my ex-boss's newly appointed solicitors who are acting on their behalf.

 

I had sent requests for documents as instructed in the Employment Tribunal book as follows:

 

1. Staff Handbook

2. Contract of Employment

3. Redundancy Policy

4. Equal Opportunities Policy

5. Personnel records of all employees

6. Redundancy selection criteria

7. Other employees score sheets from redundancy selection

 

They say that they will provide 1-4 (not that they have any of them), 5 is denied by Data Protection and deemed non relevant to my claim. No mention of 6 and 7 does not exist according to ex-boss. Should I be allowed access to the personnel records for my claim?

 

Also I have heard from a friend of mine that they are taking on another conveyancer so this disputes what she has previously said in letters about work being cut own further. Also, is there a time limit you have to wait for after making a redundancy before hiring someone else?

[papasmurf1cx]

There is an argument for Data Protection. However, if you can make a case to the Judge, now that they have declined to give it to you, perhaps asking for anonymised information and defining to the judge what you are seeking it and why might prove worthwhile to do.

 

As an issue of ongoing disclosure, you could also now ask for all the advertisements for the job vacancy for the new member of staff. Specific disclosure of that person's file to ascertain the criteria for selection.

[Sidewinder]

Also I have heard from a friend of mine that they are taking on another conveyancer so this disputes what she has previously said in letters about work being cut own further. Also, is there a time limit you have to wait for after making a redundancy before hiring someone else?

 

No - a position can be readvertised or otherwise filled immediately if it was necessary due to a change in the fortunes of the business, however the shorter the time between making a redundancy and finding it necessary to offer the position as 'vacant', the harder it would be for the employer to argue that the original redundancy was genuine. They would have to demonstrate a restructure or an upturn in business which was not foreseen when the original position was made redundant for example.

 

And I agree with the above re the Data Protection angle. Whilst you do have a right to see your own data, the employer does not have to disclose anything which could identify any other individual, so you would have to be specific in any DPA request and any disclosure could be very limited as any opinions expressed, appraisals, witness statements etc would identify the author, so could be excluded from what they would be compelled to send you.

[nutter192]

I've had a letter from the solicitors acting for my ex-boss and they state that the medical evidence I have provided is insufficient and thus does not constitute a disability for the purpose of the Equality Act. They now want to hold a Pre-Hearing Review to determine whether I am disabled or not. They also want to have another CMD to address whether the tribunal considers whether further medical evidence is required.

 

They also request that the providing of bundles be delayed until the PHR takes place.

 

The solicitor didnt like it that I was going to complain to the tribunal about the deadline for paperwork not being submitted. I feel like I'm banging my head against a wall here with these idiots. Obviously being fitted with hearing aids doesnt constitute a disability. Is there any way to avoid a PHR because I have sent the evidence and its plainly obvious my hearing is affected but my ex-boss does not accept it.

[Marieleeza]

I've had a letter from the solicitors acting for my ex-boss and they state that the medical evidence I have provided is insufficient and thus does not constitute a disability for the purpose of the Equality Act. They now want to hold a Pre-Hearing Review to determine whether I am disabled or not. They also want to have another CMD to address whether the tribunal considers whether further medical evidence is required.

 

They also request that the providing of bundles be delayed until the PHR takes place.

 

The solicitor didnt like it that I was going to complain to the tribunal about the deadline for paperwork not being submitted. I feel like I'm banging my head against a wall here with these idiots. Obviously being fitted with hearing aids doesnt constitute a disability. Is there any way to avoid a PHR because I have sent the evidence and its plainly obvious my hearing is affected but my ex-boss does not accept it.

 

I have no actual expertise in this area but I remember something relevant that my solicitor said about the need for a PHR.

 

He said that PHR is being used less frequently because of the demands it makes on the Tribunal's time. It is in fact a mini-hearing before the main one. He said that the main argument against it is that the issues in respect of whether you are or are not disabled under the EQ2010 can be debated at the full hearing, which saves Tribunal time.

 

Also, if the other side want more medical evidence a CMD and or PHR are not really needed. They could just apply for an order to instruct a joint expert (each side bearing half the cost) and if you agree to that, an appointment can be booked and a report generated.

 

Another argument, though not such a strong one, is that representation at a CMD or PHR, if you are represented, would significantly increase your costs, which runs counter to the interests of justice. If you are not represented, it is at very least, increasing your stress levels.

[nutter192]

Right have sent an email to tribunal objecting to PHR/CMD and suggested instruction of expert. Also asked for unless order that unless solicitors provide me with documents before 9th january 2012 that the case be struck out and default judgement entered.

[nutter192]

Could I send a Without prejudice offer of settlement see how they react? also would it be admissable to the tribunal?

[Marieleeza]

Could I send a Without prejudice offer of settlement see how they react? also would it be admissable to the tribunal?

 

I think the whole point of Without Prejudice communications is that they are not seen by the Tribunal until the hearing.

 

On that note however, if you do send one, it shows a willingness to settle which can be shown to the Tribunal at the hearing.

 

What I have gleaned about making such offers is that

1. They can make you seem desparate

2. They are best suited to simple cases (unfair deduction from wages and simple unfair dismissal) where the Claimant has a clear idea of how much they are owed.

 

If you are clear about the amount you are willing to settle for you could use ACAS to contact the employer for you. You have been allocated a concilliator, I imagine?

[Marieleeza]

Right have sent an email to tribunal objecting to PHR/CMD and suggested instruction of expert. Also asked for unless order that unless solicitors provide me with documents before 9th january 2012 that the case be struck out and default judgement entered.

Looks good to me. I hope your prompt action puts them on the back foot.

[stuart_coogh]

the point of a without prejudice communications is that they are not seen by the Tribunal until the hearing, but it puts you in a much better position, your willing to settle, but your employer is not, its all positive for you, puts the employer under pressure, do they settle with you or go the whole hog to the tribunal, make the sweat, get yourself signed off work, dont take calls, they should not contact you as you have a ET1 in place

[becky2585]

If you object to a PHR then write to the tribunal and request that it be dealt with as a preliminary issue at the full merits hearing. Point out that it would not be in line with the tribunal's overriding objective to hold a PHR (although as disability is disputed, chances are a PHR will be needed).

 

You can put forward an offer of settlement which is a good idea as it helps you avoid having to go to tribunal and the litigation risk associated with it. There's no guarantee you'll win.

 

Just to add, unles orders are really a tactical point. Cases are almost never struck out if they're breached, except for persistent non compliance. I had three breached orders and two unless orders which were late to be complied with once and the case still wasn't struck out!

[nutter192]

Just had a letter from the Tribunal rejecting the Respondents request for a PHR and the issue of disability will be dealt with on the day of the tribunal itself. Claimants request for an unless order is refused (not suprised) and the Respondent should disclose the documents or notify the tribunal in writing by 14 January 2012 why this is not possible.

 

Things are looking up. Should be interesting what they come back with now.

[honeybee13]

Hello again nutter and thank you for the update. That sounds like hopeful news with not long to go.

 

How are you feeling?

 

My best, HB

[nutter192]

Hi Honeybee

 

It does sound like the tribunal can see what this claim is about and I'm feeling confident that I can give a good showing. Just got to wait for the documents and bundle to come through and get the witness statement done in readiness.

 

Rest assured updates will follow.

[papasmurf1cx]

They will be feeling the pressure now. Their lawyers will be pressing them to make an offer so as to avoid incurring solicitor costs. They will be making practical decisions soon as to what is cheaper for them... buying you off or taing it the whole way.

 

Do you know how long a trial will be? They will be making the judgement based on length of time they have to pay barristers and lawyers plus your compensation. keep the pressure up and don't accept to first offer. have a figure in mind below which you will not go and having an upper figure too in mind so you have something to aim for.

[Marieleeza]

Hi Honeybee

 

It does sound like the tribunal can see what this claim is about and I'm feeling confident that I can give a good showing. Just got to wait for the documents and bundle to come through and get the witness statement done in readiness.

 

Rest assured updates will follow.

It is good that you feel confident. However, their request for a PHR and CMD were unlikely to suceed once you had pointed out the extra demands on the Tribunal's time and is really not an indication that the Tribunal understand your case.

 

 

A word about the joint expert. It would be best if you get to choose the expert as it stops the otherside using a "trusted" ally. We are led to believe that all such experts are straight because they sign a declaration saying that their opinion is unbiased but it is a source or revenue for them and legal firms can put a lot of business their way so there is always an element of doubt.

 

After the expert is chosen, a letter of instruction has to be written. Either side can write the letter but the other gets to approve the content.

 

You could look up some experts on the internet now and get your shortlist ready.

 

 

Having said that, I hope that a settlement is offered and that your worries will soon be over.

[jimmycricket]

I have received another letter with the contents of my SAR. Extremely thin pile of paper considering how long I have worked there.

 

Ex-boss states that you cannot find a copy of any contract or terms and conditions of employment.

 

Not surprising considering I was never issued with any contract in the first place.

 

Ex-boss says that as for medical history I had several days off sick in each year but no exact record of when or what was wrong with me.

 

Sickness was not an issue as the only serious illness I ever got was a vomiting bug for 2 days. However how will that look on a reference when she misstates number of sick days due to having no record?

 

She has enclosed copy of my disciplinary record which is quite a few letters I have been handed over the years.

 

These disciplinary notes are regarding issues in my employment as I was never fully supported by sufficient training and also, I was always told that I should be doing various things where I was not been giving sufficient time to do so and as a result of having to rush through from one aspect of the job to another due to being on constant demand this meant the quality of my work suffered. However these disciplinary letters were just given to me telling me what I had done wrong, there was nothing written on them about being able to appeal or even inviting me to a meeting to discuss the matter. Does this invalidate the disciplinary as I did not have an opportunity to appeal against them?

 

The above is all I have received and nothing more.

 

Nutter read all of your thread and was very informative, could you please let me have a copy of how you composed your SAR as I need to send one to my employer.

 

Many thanks and good luck

 

Jimmy

[Blueboy666]

May i add somewhat belated that these comments are excellent, let us not assume that just because your manager is a solicitor she is fully aware of the law with regards to the DDA or even a specialist in employment law, let us all be mindfull that solicitors are no more intelligent than us, they are not fully aware of all areas of law, some will specialise in certain areas.

What you have here is a solicitor with a over inflated ego, and it appears a very insensitive nature.

[nutter192]

Very true Blueboy, sums her up nicely.

 

Jimmy, the SAR is as below. However there may be additional bits and pieces that you might have to request specifically depending on what they stored about you. Best thing to do is to list everything possible and that way its harder for them to wriggle out of it.

 

I am writing to request that you forward a copy of all data about me being held by ***Employer***. The data should include (but is not be limited to)

 

Contract of employment

Terms and conditions of employment

Medical history/reports

Salary details

Disciplinary record

References

 

This request should also include any data held for more than 6 years as under the Data Protection Act there is no time limit for information requested. If you do not hold any data for a period longer than 6 years then I also request confirmation of this in writing along with your method(s) used for disposal of such information to comply with the Data Protection Act stating the name and contact information of your registered Data Controller and Code Compliance Officer.

 

I look forward to your response within 40 days, as ***Employer*** is obliged to reply within this time under the Data Protection Act. If not I shall seek remedy from the Information Commissioner. I enclose the statutory maximum fee of £10.

 

Yours faithfully

[Blueboy666]

Nutter this has all made excellent reading, i admire your determination and honesty, i am waiting with bated breath to see the outcome, i feel a sizeable settlement coming your way, but be prepared to go all the way, it is my belief they may even wait until the last minuete and settle on the steps of the tribunal.

Your courage should be admired by all, you have taken on one of the hardest organisations most of us would come up against, and done so very well.

Keep up the good work.

Best wishes and good luck.

Blueboy666....

[jimmycricket]

May i add somewhat belated that these comments are excellent, let us not assume that just because your manager is a solicitor she is fully aware of the law with regards to the DDA or even a specialist in employment law, let us all be mindfull that solicitors are no more intelligent than us, they are not fully aware of all areas of law, some will specialise in certain areas.

What you have here is a solicitor with a over inflated ego, and it appears a very insensitive nature.

 

Thanks Nutter for details of SAR, I will get cracking on that tonight.

 

Blueboy. I feel that they do know, but they want to make it as difficult as possible for their ex-employees. On my details they said that they need to get better details in of my claim in due course and reserve the right to amend their Grounds of Resistance on receipt of particulars.

 

I have my own thread and will post on there from now on.....

 

Hope everything goes well for you Nutter and they will come up with a settlement very soon for you as you deserve it

[nutter192]

Exciting update:

 

Had an email from ACAS, respondent wants to settle, has offered £3,000 in the first instance. Am going to make a much higher counter offer and request a decent agreed reference because she can easily stir it up in the future.

 

I suspect the solicitor told her just settle or it will cost too much for fees etc.

 

Will let you know once I have a reply.

[honeybee13]

Hello again nutter.

 

Excellent news there, I'll keep my fingers crossed for you.

 

HB x