Tribunal Advice Please

[CaptainMannering]

It is what they will argue in a hearing: as soon as they realised the error of their ways, they made amends ASAP. Only guessing.

 

Many thanks, appreciate what your saying but surely there is no way this could be deemed fair. Deviating from procedures then as soon as I highlight their wrongdoing they expect to be able to "abort" what's been done then have another go making sure this is right.

 

Effectively it's the same as being caught stealing, then saying come back in 5 minutes and the item will be back on the shelf...... We can all make amends once we know we're wrong but this cannot make things right??

[Pusillanimous]

The tribunal is there to ensure employers follow correct procedures. They will not care about morals, ethics or fairness. I would suggest that on the basis of the employer admitting their liability and fault in this, you write to them demanding they recompense you and issue them a costs warning if they persist in carrying on with the tribunal.

[CaptainMannering]

Yes sadly I hear ET's are very much like that. Words to that effect will bear a strong part in my witness statement.

 

I have already had a costs warning from them as a WP letter over a year ago but they never followed this up in open correspondence with the ET which I understand is very common. I also have evidence of them falsifying documents which was the only reason they upheld the grievance decision otherwise I would have been successful in my grievance.

 

They then admit the disciplinary didn't follow procedure and "want another go at it" so they could make sure they did it "right".

 

They requested a PHR to have my case struck out or a deposit order made against me, both of which were unsuccessful and we proceed.

 

You feel on this basis a letter as you suggest would be beneficial and not dangerous?

 

Thanks

[CaptainMannering]

In addition to this they then attempted to have me arrested and prosecuted for theft, which they did so without conducting any internal investigation, ie speaking to my ex colleagues to ascertain if they had taken stock from me, which they had. They told the police they had spoken to ex colleagues and confirmed none of them had taken stock from me. After showing the police written proof that ex colleagues did take stock from me, the police confirmed this with the ex colleagues, the police dropped the case as there was no evidence to suggest any theft had occurred. This was nothing more than intimidation and threatening behaviour!!!

[Pusillanimous]

The point of writing such a letter is so that you can notify them they have admitted liability in an unfiar procedure, so have no grounds for defending it further. (For example as in admitting you were at fault in a car accident.) If they ignore it save it to produce to the tribunal once you have won your case. Word it "Without Prejudice Save as to Costs". As solicitors, they will not want to be ordered to pay costs as they are expected to know better!

 

 

You cannot hurry the tribunal process, so be patient and "keep your powder dry". Other options are to apply for a PHR on the grounds of their admission. I probably would not bother, though, as the view is that it is important to hear both parties in the public interest, no matter how roguish. So just send them the letter and then forget it.

 

Not "dangerous" at all, as it is a normal legal letter with the aim of negotiating a settlement to the dispute. (This is very different from threatening to expose them in the national or local papers!)

[CaptainMannering]

Thanks pusillanimous.

 

I will construct a letter. Would you include quotations from their letter and the date of the letter? Appreciate if you don't have time but could you write a quick summary as to what the main body of the letter should state?

 

Many thanks

[Pusillanimous]

I would advise keep it very brief and from the vantage point of a judge reading it at a later date. As objective and as factual as possible no superflous words or niceties. Date, quote, attach a copy of the letter, include as the reference the case number and the parties involved and the employment tribunal location, together with hearing date if there is one.

 

Keep it to one page if possible. Simply state Without Prejudice Save as to Costs. As your client has admitted liability in the above matter you no longer have any legal grounds for defending the claim in respect of XXXX. In your letter of XXXX you wrote, and I attach a copy of the letter: (indent) "xxxxxyyyyyyzzzzz" This letter serves as a costs warning to both you and your client should I incur any legal expenses as a result of your pursuing a defence in which you have already formally admitted your legal liability in writing and which you put before the tribunal on XXYYZZ". (This is off the top of my head, you might be able to put it better, but you get the idea. The aim is for when you win your claim you ask for your costs and show the tribunal the clear warning.)

[CaptainMannering]

I would advise keep it very brief and from the vantage point of a judge reading it at a later date. As objective and as factual as possible no superflous words or niceties. Date, quote, attach a copy of the letter, include as the reference the case number and the parties involved and the employment tribunal location, together with hearing date if there is one.

 

Keep it to one page if possible. Simply state Without Prejudice Save as to Costs. As your client has admitted liability in the above matter you no longer have any legal grounds for defending the claim in respect of XXXX. In your letter of XXXX you wrote, and I attach a copy of the letter: (indent) "xxxxxyyyyyyzzzzz" This letter serves as a costs warning to both you and your client should I incur any legal expenses as a result of your pursuing a defence in which you have already formally admitted your legal liability in writing and which you put before the tribunal on XXYYZZ". (This is off the top of my head, you might be able to put it better, but you get the idea. The aim is for when you win your claim you ask for your costs and show the tribunal the clear warning.)

 

 

Pusillanimous that is fantastic I will write this down and construct a formal letter around your template. During the disciplinary hearing the chair also stated to his not taker "if it costs us £10 - £20,000 at tribunal to get rid of someone we dont want I think that's very acceptable" and "I wanna dismiss him not just for the fact we need to support the manager here" and "(to hr rep: how do I word the dismissal statement as I know this will be appealed and I don't want to be perceived as prejudice".

 

Surely statements like this also highlight procedures not being followed against both their own and acas policies? Would you include any of the above in the letter?

[Pusillanimous]

Not for now. Save that for the hearing. Following ACAS is no longer mandatory, anyway.

 

Just stick to one issue at a time.

[CaptainMannering]

And fYI they (the company and their solicitors) are aware of these statements made by their management, and in the same letter as they wrote to me above agreed there were statements made within the meeting which were unacceptable and we will be investigating this.....

[CaptainMannering]

Not for now. Save that for the hearing. Following ACAS is no longer mandatory, anyway.

 

Just stick to one issue at a time.

 

Many thanks, I will send this letter next week. Is it likely to get any response or is it more for their information?

[Pusillanimous]

If the solcitors is a reputable one, they might want to take a few steps backwards from their clients' behaviour. It's one thing their clients losing and meeting costs, but they certainly will not want to risk being subject to costs.

 

They are unlikely to show their hand and respond directly to you, but your letter will really fire a warning shot across their bows. You can be sure of that. It looks like theirs may have been an unintentional disclosure and they will want to cover their backs as their client won't be very happy about it either. They most likely present it as rectifying the matter for you as the tribunal will be pleased to hear that.

[CaptainMannering]

The respondent is one of the largest companies in this country, multi billion pound company. They have their own legal department so all dealing have been with thief own "in house" solicitors.

 

Albeit they sent barristers to the CMD and PHR with not a company solicitor in sight.

 

Not sure of your opinion on this

[Pusillanimous]

Doesn't change anything. Document, document, document. However, only if it is important. I'd say a written admission of liability from their own legal department is one such occasion.

 

If they respond, resist the temptation to be drawn into corresponding or arguing with them. Your letter has to be a final demand. Full stop. Leave it there.

[billybobynumeroduo]

If you were to go to EAT, then they too, would refer your case back to the original tribunal panel. If your case is to do with discrimination then it is a point of law it should not be struck out "except in exceptional circumstances".

 

Hi Pus, good afternoon,

 

what are you saying here? Are you saying Discrimination claims cannot be struck out of EAT hearings and have to be fairly considered if they were not considered properly at the ET hearing. How is this a point of law?

 

Many kind Regards

 

BB

[Pusillanimous]

It is a legal point because it is established in case law (for example, Anyanwu v NUS South Bank, see link, below) so if a judge strikes it out without any consideration for fact finding, then you might have good grounds for appeal. Each case has its own merits. Disability cases usually go through a PHR to establish disability facts. If that was thrown out without your having a chance to put your disability case, that is good grounds for appeal, too. There is case law regarding this.

 

This is because discrimination cases tend to be complex, so how can a judge sitting alone decide your claim is worthless just by reading the ET1? (Apart from obviously flawed cases.)

 

----

 

Lord Steyn wrote:

 

For my part such vagaries in discrimination jurisprudence underline the importance of not striking out such claims as an abuse of the process except in the most obvious and plainest cases. Discrimination cases are generally fact-sensitive, and their proper determination is always vital in our pluralistic society. In this field perhaps more than any other the bias in favour of a claim being examined on the merits or demerits of its particular facts is a matter of high public interest.

http://www.publications.parliament.uk/pa/ld200001/ldjudgmt/jd010322/anyanw-1.htm

Edited January 19, 2013 by Pusillanimous
add link

[billybobynumeroduo]

Hi there pus,

 

many thanks for this.

 

I had no PHR hearing, just the full hearing. So at the Full Hearing when I was supposed to be giving my witness statement talking about the harassment the whole case was spent discussing my disability.

 

thanks for the link I will be looking into this further to establish the grounds of appeal.

 

Best wishes

 

BB

[CaptainMannering]

I would advise keep it very brief and from the vantage point of a judge reading it at a later date. As objective and as factual as possible no superflous words or niceties. Date, quote, attach a copy of the letter, include as the reference the case number and the parties involved and the employment tribunal location, together with hearing date if there is one.

 

Keep it to one page if possible. Simply state Without Prejudice Save as to Costs. As your client has admitted liability in the above matter you no longer have any legal grounds for defending the claim in respect of XXXX. In your letter of XXXX you wrote, and I attach a copy of the letter: (indent) "xxxxxyyyyyyzzzzz" This letter serves as a costs warning to both you and your client should I incur any legal expenses as a result of your pursuing a defence in which you have already formally admitted your legal liability in writing and which you put before the tribunal on XXYYZZ". (This is off the top of my head, you might be able to put it better, but you get the idea. The aim is for when you win your claim you ask for your costs and show the tribunal the clear warning.)

 

First effort Pusillanimous..... can you advise please? Also feel free to amend or alter accordingly...Thanks

 

 

WITHOUT PREJUDICE SAVE AS TO COSTS

 

 

Dear Sirs

 

 

Case Number: ******/****

 

 

As your companies legal representative Ms ***** ****** has admitted liability in the above matter you no longer have any legal grounds for defending the claim in respect of your admission of your failure to ensure the disciplinary hearing followed the company's disciplinary policy, furthermore by your admission the chairperson of the original disciplinary hearing was not entirely independant. In your letter of ** **** 2011, you wrote, and I attach a copy of the letter:

“

We shall ensure that this second disciplinary is undertaken properly in accordance with the company's disciplinary policy and an entirely independent chairperson will investigate the matters and come to their decision"

This letter serves as a costs warning to you, should I incur any legal expenses as a result of your pursuing a defence in which you have already formally admitted your legal liability in writing and which you put before the tribunal on (HEARING DATE).

[becky2585]

Hello again.

 

When did they formally admit liability? From what I can see, they admitted a deviation from procedure, but not complete procedural unfairness.

 

I will be honest here, it makes you look like you don't know what you're doing sending letters like that. Unless you actually have legal representation, they will just laugh at you. You also can't threaten costs on the basis of speculative expenses.

 

Don't forget that the ACAS Code is best practice. They may have deviated slightly, but that doesn't preclude them from defending the claim on either procedural or substantive fairness grounds. If they reconvened the process and THEN arguably made it fair, which appears to be their argument, they're still entitled to defend proceedings.

 

If you're adamant you want to stop them from defending the claim (although note they will still be entitled to put forward Polkey or contributory fault arguments in their mitigation defence) the correct thing to do is apply to the Tribunal for a PHR to determine a strike out of the Response on the grounds that it has no reasonable prospects of success. Ill be honest though - I don't think you can show it has NO prospects, so it could be an uphill struggle. They did follow *some* procedure, even if it wasn't correct.

 

I hope you take this as a well intended post, I'm not intending to rubbish the letter, but it just wouldn't serve much purpose at this stage. You could always send an open letter instead noting their admission of liability to include in the bundle later on as evidence, if you were inclined to do so.

[CaptainMannering]

Also looking for advice with the following.

 

In the same letter as the above from the company's legal rep they state "we do, however, agree with you that some comments contined within the transcript were unacceptable and will be investigating the matter. However, as you can understand, we will be unable to provide the details ofthe outcome of any investigation for data protection purposes"

 

This is in regards to a transcript sent to them from the audio recording i obtained from the disciplinary hearing. Some of which is debarred by order from the ET from being used at hearing. Question is do i have any right, under any law for the respondent to disclose the details of their investigations/outcome of their investigation into unacceptable comments. They advice under data protection they cant disclose but is there any way i can request this and they cant refuse?

 

Thanks

[CaptainMannering]

Hello again.

 

When did they formally admit liability? From what I can see, they admitted a deviation from procedure, but not complete procedural unfairness.

 

I will be honest here, it makes you look like you don't know what you're doing sending letters like that. Unless you actually have legal representation, they will just laugh at you. You also can't threaten costs on the basis of speculative expenses.

 

Don't forget that the ACAS Code is best practice. They may have deviated slightly, but that doesn't preclude them from defending the claim on either procedural or substantive fairness grounds. If they reconvened the process and THEN arguably made it fair, which appears to be their argument, they're still entitled to defend proceedings.

 

If you're adamant you want to stop them from defending the claim (although note they will still be entitled to put forward Polkey or contributory fault arguments in their mitigation defence) the correct thing to do is apply to the Tribunal for a PHR to determine a strike out of the Response on the grounds that it has no reasonable prospects of success. Ill be honest though - I don't think you can show it has NO prospects, so it could be an uphill struggle. They did follow *some* procedure, even if it wasn't correct.

 

I hope you take this as a well intended post, I'm not intending to rubbish the letter, but it just wouldn't serve much purpose at this stage. You could always send an open letter instead noting their admission of liability to include in the bundle later on as evidence, if you were inclined to do so.

 

Becky

 

Many thanks, i always take your posts in a well intended manner, id prefer to be told straight rather than led up the garden path making an error..

 

I would agree that requesting a PHR at this stage would not be beneficial given we have already had one and a CMD.

 

This was advice given by another cagger to put forward this letter, but i would agree that they havent admitted liability so to speak, they have admitted that the hearing wasnt undertaken properly or in accordance with their disciplinary policy. My point on this was although they have tried to put this right by reconvening the hearing surely this doesnt discount the fact that the original one was a sham, and they now want to cover up their errors and do it 'properly'. Doesnt do much for mutual trust and confidence as it was destroyed following the incident.

 

Thanks again

[CaptainMannering]

Also looking for advice with the following.

 

In the same letter as the above from the company's legal rep they state "we do, however, agree with you that some comments contined within the transcript were unacceptable and will be investigating the matter. However, as you can understand, we will be unable to provide the details ofthe outcome of any investigation for data protection purposes"

 

This is in regards to a transcript sent to them from the audio recording i obtained from the disciplinary hearing. Some of which is debarred by order from the ET from being used at hearing. Question is do i have any right, under any law for the respondent to disclose the details of their investigations/outcome of their investigation into unacceptable comments. They advice under data protection they cant disclose but is there any way i can request this and they cant refuse?

 

Thanks

 

Pus can you add anything further? Thanks

[Pusillanimous]

If it involves other staff, they can hide behind "confidentiality of others". There is case law, but the tribunal are unlikely to listen to you, as a lowly lay person. I would recommend you insist on disclosure and tell them to redact anything that involves others' confidentiality. They have no excuse for refusing, then.

[CaptainMannering]

Many thanks I will ask the question but as it will have no direct bearing on the case I don't feel, the tribunal would be unlikely to become involved as you suggest.

 

I have been advised against the WPSATC letter as they haven't admitted liability so to speak???

 

Thanks

[Pusillanimous]

I thought your analogy about someone being caught "nicking" goods from a shelf and then putting it back as though nothing has happened, is a good one. I only know what you have told me. This is one of UK multinational super corporations with their own in-house solicitors? So why did they not get your disciplinary hearing right the first time round?

 

Just send the letter and if anyone thinks you are a fool, plead that you are not a corporate lawyer.