Fairly urgent - tribunal advice needed

[kingofrod]

Hi Becky,

 

Forgive me, but who are they likely to call as witnesses? I don't quite understand who they might need to attend? The managers from the hearings? If these managers have given statements, though, why would they need to attend?

 

Cheers

[becky2585]

The managers have to attend if they have put forward a witness statement to read their evidence and be cross examined on it. Very rarely would the Tribunal allow evidence to be submitted just through a witness statement.

 

The witness statement is designed to form the basis of ALL the evidence that you are putting to the Tribunal. Therefore they should be complete. As said before, you then have the chance to cross examine them on any points which don't add up.

[kingofrod]

Ahhhhhh. Hmmmm. OK. So it's possible that the person from the party will be there?

 

Does this mean that I have to have people there who have given me witness statements? For example, my Uncle's GP?

 

I was also considering getting a statement from my aunt confirming that she needed me to help with care for my uncle as she's not in great health, either....

 

Or is it only the respondent that HAS to bring witnesses?

 

Thanks a million, Becky

[becky2585]

It depends...

 

It's possible to include a letter or something along those lines in the Bundle to be referred to as evidence only. If you actually exchanged a formal witness statement on their behalf, then yes, it's highly likely they would need to attend. I don't know the exact facts here but if you're in doubt then I'd write to the ET to clarify that they won't be compelled to attend as witnesses.

[kingofrod]

Thank you VERY much indeed

 

The problem I have is that my witnesses, really, are all in Manchester while the respondent's are, of course, in Dorset where the office is. For me to take witnesses, it'd cost a small fortune....

[becky2585]

Your witnesses can claim certain expenses. Have a look here http://www.justice.gov.uk/downloads/guidance/courts-and-tribunals/tribunals/guidance-booklets/ExpensesAllowances.pdf

[kingofrod]

It depends...

 

It's possible to include a letter or something along those lines in the Bundle to be referred to as evidence only. If you actually exchanged a formal witness statement on their behalf, then yes, it's highly likely they would need to attend. I don't know the exact facts here but if you're in doubt then I'd write to the ET to clarify that they won't be compelled to attend as witnesses.

Hi all,

 

Can anyone clarify on this?

 

I'd like to go through the case causing as little disrution to my family and friends as possible (and my family/friends would be the only people able to act as witnesses for me, other than my Uncle's GP but that's unlikely to happen.... so I'll be submitting his letter). I was planning on not calling any witnesses at all. Is that unwise?

 

The people I would assume might be appropriate witnesses might be :

 

UNCLE - confirming illness and reliance on my care

FRIEND/COLLEAGUE - confirming incident at party and that I deleted my abusive post soon after making it (he was with me when I did)

COMPANY MANAGER(S) - confirming that they'd previously granted me time off without advising me or having replied to my emails (basis of my belief that leave had been granted on this occasion)

 

It's possible the company would call the managers, anyway. So I could just question them.

 

I spoke to a friend of mine who is an employment lawyer in Australia. I don't want to get too much advice from her because the laws are greatly different, but she did come up with the following. My responses are in blue....

 

1) your employer will rely upon the fact that you failed to disclose that you were working additional hours at a secondary employer. On the basis of the information that you have provided I believe that your employer would be able to establish a reasonable belief to an employment tribunal that you had misled them as to how you were spending your time.

 

It was never a requirement that I tell the employer how I would be spending my time on 'unpaid' leave. That I had already declared my second job should make the fact I worked there during my time off an irrelevance.

 

2) in strict contractual terms you were obliged under your employment contract to attend work on the dates in question and you did not do so. In these circumstances an employer is entitled to regard time away from work as unauthorised irrespective of whether you have attempted to obtain authorisation.

 

Can't I argue that I followed a procedure that I'd been following for almost a year previously, and applied the same standards to this application for time off as had been applied previously, with the backing of the managers? I did not get any response from the managers to make me believe that the time off was NOT granted, nor to offer me any other advice as to how to go about securing the time off if they were unprepared to grant it.

3) the primary question for an employment tribunal to consider in an unfair dismissal case is whether or not the dismissal was fair. In the event that a dismissal was not fair a tribunal may then look to an appeal process to see if any of the defects in the dismissal were rectified. If the decision to dismiss you was found reasonable, whilst your employer could be criticised for some of its actions throughout the appeals process it probably wouldn't have any bearing on the outcome of your claim overall.

 

Of course I'm biased, but I cannot imagine for a second how anyone would feel that my dismissal, given that I'd provided documentation from a GP confirming the need for me to take time off work and that I'd followed precedent and sent multiple emails to multiple people to secure authorised time off work, is justified.

 

If anyone is able to offer me some more specific advice relating to the list of documents, I'd really very much appreciate it.

 

I jsut had a response from the respondent's solicitor appealing against my objection to having the case adjourned and re-listed as a two day hearing. They say it's absolutely vital that it be held over two days.... I didn't think this case was particularly complicated?

[kingofrod]

COSTS - Is is common for costs to be awarded to either side in a tribunal?

[mariefab]

The Respondent would probably bring the person who held the disciplinary hearing, the complainant at the party, the person who held the appeal and perhaps the people that you say that you informed that you wanted to take September off.

Because these would be the people who would have been involved in one way or another in the decision to dismiss you.

 

 

Your uncle wasn't involved in the disciplinary hearing so isn't needed as a witness.

If the friend/colleague who witnessed the party incident and the deletion of the offending post provided evidence at the disciplinary then he would be a potential witness for you.

The managers would probably be Respondents witnesses.

 

Anyway, all this could be acedemic. The bad news...

I failed earlier to notice something that becky picked up on at post #20.

The remedy you are seeking is reinstatement.

As becky correctly says this is almost never awarded by a Tribunal and, even on the rare occasions that it is awarded, if the employer refuses the only thing a Tribunal can then do is award compensation instead.

 

Has your employer given you any reason to believe that they would consider reinstating you?

Because if it's an unlikely prospect, and you have indicated to the Tribunal that this is the only remedy that you are seeking, your claim could be deemed misconceived and that's when we come to costs.

 

When a claimant is unrepresented costs are less likely to be awarded against them.

But you had a solictor involved earlier (and your employer is aware of this?) so it may be assumed that you received advice on whether or not you had a sufficient grounds for a winable claim.

So you are vulnerable to a potential costs claim for bringing a misconceived claim.

[becky2585]

Actually seeking an unlikely remedy isn't enough to show a misconceived claim. It only relates to the merits of the actual unfair dismissal claim itself, rather than the remedy sought.

 

For example - we recently had a remedies hearing, seeking reinstatement, which lasted two full days, and which incurred around £6,000 of costs! It would never have been practicable for the individual to return, and the claimant clearly forced the respondent to incur significant cost, but they were never in any danger of a costs order even for that, as it's a remedy that's open to any claimant to try to go for. That person only ever wanted their job back, but ended up with a wedge of compensation instead.

[mariefab]

I see, the 'misconceived' bit doesn't apply in respect of the remedy. Thanks for explaining that becky.

 

Sorry I was wrong about that kingofrod. Unlike becky I don't work in the legal field.

It goes to show that there are good reasons for keeping advice on the board instead of PMing so that when the wrong advice is given it can be corrected.

 

 

Becky, based on what the OP has posted do you think that he's at risk of a cost claim on the merits of his case?

[kingofrod]

Your uncle wasn't involved in the disciplinary hearing so isn't needed as a witness.

If the friend/colleague who witnessed the party incident and the deletion of the offending post provided evidence at the disciplinary then he would be a potential witness for you.

The managers would probably be Respondents witnesses.

Thanks Marie. I have got a statement from my uncle expressing the need for me to be at home for the month of September to care for him. I'd prefer not to call him as a witness though. My uncle's wife has also given me a statement saying that because of her own ill health she was unable to adequately care for him and needed me there (they have no other family able to help). These are being submitted in addition to the letter from my uncle's GP stating that it was appropriate for me to take time off to care for him.

 

The company has said to me that because the letter from the GP was undated (for some reason) it didn't believe it to be relevant. However, the wording of the letter says that it is a "absolitely neccessary for kingofrod to be absent from work for a number of week to......" and I've argued that as I've never previous had even a single day off work for sickness/care, it's plainly obvious that the letter refers to this absense.

 

When a claimant is unrepresented costs are less likely to be awarded against them.

But you had a solictor involved earlier (and your employer is aware of this?) so it may be assumed that you received advice on whether or not you had a sufficient grounds for a winable claim.

So you are vulnerable to a potential costs claim for bringing a misconceived claim.

I did consult a solicitor but not really in an official capacity and although the solicitor mentioned that the case doesn't meet the specific requirements to be covered by insurance, she did recommend proceeding and retaining a solicitor at my own cost.

 

I have decided to go it alone, though, and am speaking to the wise, wise people of CAG for help! I thank you all.

[kingofrod]

Actually seeking an unlikely remedy isn't enough to show a misconceived claim. It only relates to the merits of the actual unfair dismissal claim itself, rather than the remedy sought.

 

For example - we recently had a remedies hearing, seeking reinstatement, which lasted two full days, and which incurred around £6,000 of costs! It would never have been practicable for the individual to return, and the claimant clearly forced the respondent to incur significant cost, but they were never in any danger of a costs order even for that, as it's a remedy that's open to any claimant to try to go for. That person only ever wanted their job back, but ended up with a wedge of compensation instead.

Hi Becky,

 

In an ideal world I'd love my job back. I loved the company, loved the majority of the people, loved the work. I gave ten years to that company and was entirely committed. While I have no reason to suspect that reinstatement is not a possibility (albeit slim), my remedy also included a couple of other things that, if the company suggests I've no chance, I'd look to negotiate with Acas' assistance to try and secure the other elements if at all possible. So the remedy was an "ideal world" kinda list.

 

Becky, it sounds like you're an employment lawyer? Can you give some sort of idea of the costs associated with retaining representation for a tribunal? If I asked your company, for example, to represent me??? I suspect it's not nearly as black and white as that, though?

[becky2585]

I usually quote between 5,000 and 8,000 for privately funded unfair dismissal claims, or 10,000 to 12,000 for discrimination. We are a northern law firm, so costs will be higher down south and usually even worse in London! The thing to consider though is whether you can fund it through other ways, e.g. a trade union, legal expenses insurance, or a conditional fee arrangement.

 

Marie, the best example I can give of a misconceived claim which would be in danger of attracting a costs award would be one where a claimant was dismissed for theft. Basically, if a claimant is adamant they did not steal anything, but the employer found that they were guilty, it makes no difference whether they did it or not - if there was a reasonable investigation, the employer is entitled to find the employee guilty. Therefore, the law says that it can't be an unfair dismissal even if they were innocent. It favours the employer here, granted - but if a claimant brings a claim In these circumstances, it would be misconceived.

 

In order to be in real danger of a costs award, there has to be some seriously poor behaviour by one of the parties. In terms of a claimant, it would be if their case was misconceived or had little prospects of success. In the latter case, they would have to pay a deposit into the Tribunal if they wished to continue with their claim, and if they lost, a costs application by the respondent is highly more likely to be granted. If a party misses deadlines, they can be issued with an unless order, then a strike out notice - but in practice, this rarely happens. It's infuriating when your opposition misses deadlines and the ET won't do anything real about it.

 

I've seen one major costs award which really, was designed to be punitive as it was against a HUGE company. It probably actually would have been overturned on appeal, but that related to vexatious conduct in litigation.

 

Sorry for the long winded reply, but in short, unless you miss each deadline and an unless order is in place each time, the risk of costs here would be minimal.

[kingofrod]

That's very interesting stuff, Becky. Thanks.

 

I'm preparing my list of documents at the moment - managed to find a template for that.

 

I have a file of about 250 pages of documents relating to the case and investigation but a lot of it is just informational, so to speak.

 

One or two bits in there, though, were submitted by me in my defence during the hearings. Should I include these in the list of docs and expect the respondent to request that I send them to them?

 

I have to get the list of doc through to the ET/respondent by 01 March. The letter from the ET says I may be required to provide these docs. Should I just automatically send all the documents through with the list, or wait to be asked for them?

 

Cheers again

[becky2585]

What has to be included in the bundle is anything which relates to the case, whether it assists your case or theirs, or so yes, they should be put forward.

 

I would always send a list in the fist instance, including a title (usually a brief description) and date for each document in a numbered list. The respondent will then request copies of any documents they have not seen. I wouldn't copy it to the Tribunal unless they've specifically requested you to do so, which I doubt they would do!

[kingofrod]

That's great Becky, thanks again.

 

I'm going to go into a few tribunal hearings next week here in Manch to get a feel for how they run and to see what's expected. I think it'll be excellent experience.

 

Becky, do law firms tend to normally represent the claimant OR the respondent, or do they swing both ways, so to speak? In other words, are some firms specialists in defending tribunal claims and others specialise in bringing them?

[becky2585]

They definitely are split. In our team, there are two of us who mainly represent claimants, and three who mianly represent respondents. We do have a small percentage of clients who are the "opposite" though. A lot of law firms who are corporate or commercial only (I.e. concentrating on the big bucks!) will only represent employers, but similarly there are plenty of law firms who advertise themselves as being only for individuals.

 

Most lawyers also have a preference as to who they prefer dealing with. I prefer claimant work! But more senior people tend to prefer working for companies.

[becky2585]

It's a good idea to attend a hearing by the way, but I'd ring up the afternoon before. A lot of claims settle within a couple of days of the hearing so it's always worth making sure they're going ahead before turning up to an empty tribunal!

[kingofrod]

They definitely are split. In our team, there are two of us who mainly represent claimants, and three who mianly represent respondents. We do have a small percentage of clients who are the "opposite" though. A lot of law firms who are corporate or commercial only (I.e. concentrating on the big bucks!) will only represent employers, but similarly there are plenty of law firms who advertise themselves as being only for individuals.

 

Most lawyers also have a preference as to who they prefer dealing with.

That's very insightful, thanks! Interesting stuff.

 

I prefer claimant work!

That's cos you're nice!

 

Can I ask, have you any experience of The Free Representation Unit ( http://www.thefru.net ) Should I consider contacting them for advice, too? Almost seems too good to be true....

[becky2585]

Never heard of them and the link won't load. Sorry!

 

I don't know about being nice... Try meeting me at 6am before I've had my caffeine

[kingofrod]

It's a good idea to attend a hearing by the way, but I'd ring up the afternoon before. A lot of claims settle within a couple of days of the hearing so it's always worth making sure they're going ahead before turning up to an empty tribunal!

That's exactly what they said when I called early last week - "call us the evening before, or on the morning, to check what's still on the diary as a lot of stuff never actually makes it to tribunal".

 

In your experience, lots of pre-hearing settlements?

[kingofrod]

Try meeting me at 6am before I've had my caffeine

My goodness that's a bit forward!!!

 

http://www.thefru.net (link fixed)

[becky2585]

Oo er. Lol.

 

But yes, about 90% settle or are withdrawn. Maybe even more!

[MENOPAUSALADY]

Hi kingofrod

 

I wish you good luck with your tribunal........................I've been reading through the thread and I wondered if you could clarify a point.

 

You say you had two employers (both of whom you worked for part-time) and you took time to off from just one of them to care for a sick relative?

 

I am understanding that correctly?

 

regards

MENOPAUSALADY