Tribunal Advice Please

[CaptainMannering]

Many thanks...

 

To me it's like an employee going to a diciplinary hearing and saying "sorry what I did was wrong I messed up, if we go back to yesterday morning ill make sure I don't do it".

 

Hindsight is a wonderful thing but if this theory was allowed there would never be any wrongdoing??

[billybobynumeroduo]

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.

 

Sorry K to jump in on your thread and best of luck with the CMD,

 

Pus, I just wanted to ask you what is the benefits and disadvantages of having a CMD?

 

Is it protocol that all Disability cases/ complicated cases should have a CMD, to set out the issues?

 

I am just wondering because in my case no CMD took place just a full hearing, therefore the Full hearing focused more on whether I was disabled (and yes I was found to be) than actually taking into account the main crux of the case which was the harassment, discrimination and breach of contract.

 

I am just wondering if this is a procedural issue or a point of law that is worth mentioning in my amended EAT1

 

K regards

BB

[Pusillanimous]

You mean PHR? CMD is a case management discussion. A PHR is a hearing with legal force. It's called pre-hearing review, but these days it's used to filter hearings down to a minimum. Either party can request one.

 

The problem you had going direct to a full hearing meant that within the time limits the focus was on whether you were disabled at all when that could have been assessed at a PHR. Having established you were, the employer successfully argued that they did not know at the relevant time.

 

You need to get the evidence in front of the judge that they did.

[CaptainMannering]

Hi All

 

Back again after a break.. Basically we are due to exchange witness statements as per the orders tomorrow (why the EJ decided on a Saturday im not sure). I have had no contact at all from the respondent in around 5 months, so i just need advise on what to do next.

Do i contact them to ask for a time to exchange witness statements, and would you do this today or tomorrow. I appreciate they will not pick it up tomorrow but it is the order date which they are aware of, as such they are unlikely to respond and miss the order. However this would be the 5th order that they failed to comply with.

 

Do i:

 

wait for them to contact me (although then it could be claimed i too have missed the date)

contact them today asking to exchange today/tomorrow

contact them tomorrow asking to exchange (knowing they wont reply and miss the order)

 

Any advise appreciated......

[becky2585]

Tribunals are rubbish for calculating dates.

 

You should definitely email them to ask for a time and method of simultaneous exchange. Then if they default, it's their fault and not mutual!

[CaptainMannering]

Tribunals are rubbish for calculating dates.

 

You should definitely email them to ask for a time and method of simultaneous exchange. Then if they default, it's their fault and not mutual!

 

Thanks B was hoping you were going to pass comment.

 

In anticipation and my own judgement I emailed at 15:30 to ask " as per the EJ orders for exchange of WS, which you will be aware are due today, can you please supply me a time, today, as to when the WS can be exchanges. Failure to do so will be in breach of set orders"

 

I have had nothing from them so what would be next?

 

Thanks

[CaptainMannering]

Thanks B was hoping you were going to pass comment.

 

In anticipation and my own judgement I emailed at 15:30 to ask " as per the EJ orders for exchange of WS, which you will be aware are due today, can you please supply me a time, today, as to when the WS can be exchanges. Failure to do so will be in breach of set orders"

 

I have had nothing from them so what would be next?

 

Thanks

 

Hi peeps

 

Still nothing from them and as they don't work today they are unlikely to exchange and aren't complying with yet another set order..

 

So what now?

 

Thanks

[Pusillanimous]

Always honour an EJ order. It will often happen the other party are late. However, that's life; not much you can do about it. You could always "name and shame" them by letting the EJ know you've honoured your part but they have not. If it's more than a day late you could read the riot act, but it's probably a waste of energy.

[CaptainMannering]

Thanks Pus

 

I was under the impression failing to meet orders was a no go area, although when they missed the last orders, they claimed they hadn't prejudiced any party and the EJ at the CMD didn't seem interested.

 

I don't want to send them my statement without getting theirs as they will have the opportunity to amend theirs seeing what I say.

 

Is it worth writing to them asking them to write to the ET as they have missed the order and are prejudicing my preparation time for the hearing, I guess they won't take any action though or strike out their defence?

 

Just frustrates me I've spent 40 + hours on my statement and getting it ready for the date and they feel they can just ignore it....

[Pusillanimous]

They are winding you up. Their witness statements will have already been prepared and looked over by a lawyer. Any last minute changes would have to be exactly that! Doesn't change the evidence, just gives them a chance to rebut. You could always hang on to your own statement until Monday midnight, as Saturday, Sunday and Bank Holidays are not legally proper days for an order. Could be a typo - ring up the tribunal Monday and ask.

[CaptainMannering]

They are indeed winding me up but I guess this is all part of the process.

 

I have checked with the ET (last week) that the order date was 23/03/13 and they confirmed. It is the companies internal solicitor I'm dealing with, so as you say I would have fully expected the statements to have been drafted already.

 

I will wait till Monday and see what their position is, I don't really want a postponement to the hearing as its been going on 2 years now!!

[becky2585]

You are under no obligation to send your statement unless they send theirs, so keep hold of it. If you have emails saying you've tried to exchange but the other side wasn't ready, that's sufficient for you not to be in breach of the order.

[CaptainMannering]

Thank you Becky

 

So far as any action being taken against them for this / prejudicing my preparation time for the hearing etc, is this unlikely under the circumstances?

 

Thanks

[becky2585]

How long until the hearing?...

 

Incidentally if I had spent 40 hours preparing a statement, that would have cost you around £5,000... So I understand your frustration!!!

[CaptainMannering]

Hearing is end of may....

 

27 pages,15,100 words and a bundle of 500 pages so its taken a long time to compile and perfect!!

 

Glad I've saved myself £5000

[becky2585]

Well done!

 

As far as the ET goes, as long as you have the statements in your hand 2-4 weeks prior to the hearing, the Tribunal is unlikely to consider the delay to be prejudicial to your case. However, if you don't have them by Monday, write to the Tribunal for an Unless Order (highlight all their previous defaults and send it by email, copying in the other side to speed things up).

[CaptainMannering]

Well done!

 

As far as the ET goes, as long as you have the statements in your hand 2-4 weeks prior to the hearing, the Tribunal is unlikely to consider the delay to be prejudicial to your case. However, if you don't have them by Monday, write to the Tribunal for an Unless Order (highlight all their previous defaults and send it by email, copying in the other side to speed things up).

 

 

Thank you

 

I've read mixed opinions on WS which I hope you can clarify.

 

1. What is the closing statement you have to write in relation to "this is a true statement" etc

2. Do you have to sign the statement, I've heard yes and no

3. Can the statements be amended once submitted, effectively does the statement provided on the day of hearing have to be exactly the same as the one at exchange (if so and a statement has been significantly altered after reading mine is there anything I can do about it)

 

Thanks K

[becky2585]

1. You don't need a statement of truth on ET statements, but the paragraph I use is "I confirm that this statement is true to the best of my own knowledge and belief".

 

2. Yes, it should be signed and dated.

 

3. No, no further amendments unless the ET permits it!

[CaptainMannering]

1. You don't need a statement of truth on ET statements, but the paragraph I use is "I confirm that this statement is true to the best of my own knowledge and belief".

 

2. Yes, it should be signed and dated.

 

3. No, no further amendments unless the ET permits it!

 

Thanks B

 

To update, got no response so wrote to ET asking for an unless order. Respondent responded day following this to advise they would be in touch tomorrow. I wrote back advising I wasn't available after 6pm today for at least 2 weeks and asked to exchange today.

 

Within an hour they were ready and had sent me their statements and asked for mine which has been sent. Reading theirs tho they all sound like they have been written by a solicitor!!

 

Job done...prep time now if you have advise on this?

[CaptainMannering]

Thanks B

 

To update, got no response so wrote to ET asking for an unless order. Respondent responded day following this to advise they would be in touch tomorrow. I wrote back advising I wasn't available after 6pm today for at least 2 weeks and asked to exchange today.

 

Within an hour they were ready and had sent me their statements and asked for mine which has been sent. Reading theirs tho they all sound like they have been written by a solicitor!!

 

Job done...prep time now if you have advise on this?

 

In addition the respondent has sent their statements unsigned and has stated that signed copies will be available at the hearing, what would be the reason for this?

 

Thanks

[becky2585]

Don't worry, it's perfectly normal to do it that way. They only need to be signed on the day of the hearing.

[CaptainMannering]

Thanks becky, can you advise on how best to prep for hearing no I have their statements and bundle?

[becky2585]

Generally speaking I would ensure that I know the ET1 and ET3 inside out. I'd also write closing submissions, referring to statutes and case law as appropriate. I would also print out the full judgments in terms of any authorities you're intending to rely on and give them to the Judge and the Respondent, although you may not have access to the cases!

 

You need to prepare cross examination questions for each witness. Be as thorough as possible and use closed questions wherever you can. The idea is to trip them up, so go through everything with a fine toothcomb. When you're doing the list (which you will need to take in with you) then leave space to write down any crucial or surprising answers. And don't ask any questions you don't already know the answer to as it could harm your case! You need to concentrate on highlighting to the tribunal any evidence which is not credible or which supports your position.

[CaptainMannering]

Generally speaking I would ensure that I know the ET1 and ET3 inside out. I'd also write closing submissions, referring to statutes and case law as appropriate. I would also print out the full judgments in terms of any authorities you're intending to rely on and give them to the Judge and the Respondent, although you may not have access to the cases!

 

You need to prepare cross examination questions for each witness. Be as thorough as possible and use closed questions wherever you can. The idea is to trip them up, so go through everything with a fine toothcomb. When you're doing the list (which you will need to take in with you) then leave space to write down any crucial or surprising answers. And don't ask any questions you don't already know the answer to as it could harm your case! You need to concentrate on highlighting to the tribunal any evidence which is not credible or which supports your position.

 

 

Thanks B appreciated again. What is the list you refer to? Is this something just for me or for the panel also?

 

Quick one on cross examination, is it up to me to what order I call their witnesses in and once they have given evidence if something comes to light when questioning another witness can you recall a witness once they have given evidence?

 

Thanks

[becky2585]

The list I referred to was of cross examination questions, so the written document is only for you!

 

The Respondent will call each witness in whichever order they want, so you won't be able to request the order, unfortunately.

 

It's very rare to recall a witness, but I have seen it happen where a party is not represented. So yes, it's a possibility.