Tribunal Advice Please

[CaptainMannering]

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.

 

Just looking over the ruling in the EAT on the Vaughan v lewisham case, where the claimant had originally had their covert recording debarred and had it overturned at EAT and was allowed to use this in support of their claim.

 

I have had my covert recording debarred after the respondent requested this. Using the above case law would I be able to now introduce this recording at my hearing?

 

Thanks

[becky2585]

Just looking over the ruling in the EAT on the Vaughan v lewisham case, where the claimant had originally had their covert recording debarred and had it overturned at EAT and was allowed to use this in support of their claim.

 

I have had my covert recording debarred after the respondent requested this. Using the above case law would I be able to now introduce this recording at my hearing?

 

Thanks

 

I'm not sure of the definitive answer but my gut feeling would be that you'd have to either appeal the original request with the EAT or submit a new request using the updated case law.

[CaptainMannering]

I'm not sure of the definitive answer but my gut feeling would be that you'd have to either appeal the original request with the EAT or submit a new request using the updated case law.

 

Thanks Becky, unusual for you to be able to confirm

 

If I write to the ET now with the hearing around 6 weeks away is it likely to alter the hearing date if granted?

[becky2585]

Thanks Becky, unusual for you to be able to confirm

 

If I write to the ET now with the hearing around 6 weeks away is it likely to alter the hearing date if granted?

 

The reason I'm hesitant is that if its a decision made after your decision, I'm not convinced its appealable because it was a different precedent in place when the Judge ruled on your application if you see what I mean. It's not a point I've come across before.

 

6 weeks may be sufficient - it would be up to the Respondent to object and for the Judge to make the ultimate decision on whether postponement is in line with the overriding objective to place the parties on an equal footing and deal with the case efficiently...

[CaptainMannering]

Thanks Becky ill appeal the original decision qoting the new case law and ask for a review of the decision. Ill copy to the respondent and offer them the 7 days to appeal which they inevitably will do.

 

Im no expert but if they uphold their original decision, surely after the hearing i could appeal to the EAT quoting new case law as its now in place? like i say im no expert:)

[CaptainMannering]

Right....

 

With less than a month to the hearing now I have today had an offer through acas from the respondent. The offer is round a months salary, which I will be rejecting, however acas advise that their offer to settle is on a commercial basis only, can anyone shed any light as to the meaning of this?

 

Thanks

[becky2585]

Right....

 

With less than a month to the hearing now I have today had an offer through acas from the respondent. The offer is round a months salary, which I will be rejecting, however acas advise that their offer to settle is on a commercial basis only, can anyone shed any light as to the meaning of this?

 

Thanks

 

In a nutshell, they are throwing their money at you rather than at a solicitor...

[Pusillanimous]

It is a standard term to make it clear that the offer is in no way an admission of liability or an apology on their part, but merely "commercial" to get rid of you and your claim.

[CaptainMannering]

In a nutshell, they are throwing their money at you rather than at a solicitor...

 

So not particularly such a positive sign?

[CaptainMannering]

In a nutshell it went:

 

0830 - offer from acas

0900 - rejected by me with higher counter offer

1200 - acas advise resp reject offer and withdraw theirs. Although they state that if tho sum was put forward by me they would take instructions on it.

 

Does this sound normal?

[steampowered]

Settlements are common in the Employment Tribunal. You should not read into it too much. Very often employers spend as much in legal costs as they would spend in settling the claim. In the ET it is rare for a claimant to be ordered to pay legal costs, so employers have a strong financial incentive to try and settle claims even if they think the claim has no merit.

 

If that amount is their first offer I would say there is a good chance that the offer will be raised. It is not uncommon for cases to settle the week before, day before or even 10 minutes before the hearing. I have seen countless "final" and "take it or leave it" offers raised substantially.

[becky2585]

Well there are a few ways of looking at it.

 

The most commercially viable time to settle a case is right at the outset when fees are relatively low, but the majority of fees are incurred in drafting witness statements, heating preparation and then the advocacy costs.

 

They may have been waiting to see if you would withdraw but have now realised you won't. They may also not want to have to attend a hearing.

 

I have had employer clients with good defences in the past who have been adamant for months that they won't settle... Until a week before the hearing when they realise they either can't cope with the pressure or can't afford the management time in attending the tribunal. Or it could be a genuine commercial offer - who knows!

[steampowered]

Indeed, logically employers should try to settle early. But sometimes this does not happen, sometimes people prefer to use the 'bury head in sand' approach. When people actually have to start doing some serious work to prepare for the hearing (or start paying their solicitors to do it for them) that can focus minds and dislodge a settlement offer!!

[CaptainMannering]

I have today had an email from the resp solicitors stating that part of my witness statement is untrue and stating that they will be reacting parts of the (agreed) bundle which they feel are not admissible.

 

Their belief that my statement is untrue is nothing more than their opinion and as for redacting parts of the bundle, this is the bundle that was agreed by both parties and complied by their solicitor.

 

Just looking for comments / advice as they state with less than 10 days to go they are applying to the tribunal to strike my evidence out.

 

Thank you

[CaptainMannering]

Bump

 

If anyone can pass comment it would be greatly appreciated.

 

 

 

Thanks

[caro]

I'm no expert so this is just a comment but it's curious that they got your statement BEFORE they offered to settle. If they thought it was untrue I would have expected them to want it struck out then instead of offering you money.

 

If you know it's all true and they can't prove otherwise I don't see you have too much to worry about and can fight this.

 

I repeat - I'm no expert.

[CaptainMannering]

I'm no expert so this is just a comment but it's curious that they got your statement BEFORE they offered to settle. If they thought it was untrue I would have expected them to want it struck out then instead of offering you money.

 

If you know it's all true and they can't prove otherwise I don't see you have too much to worry about and can fight this.

 

I repeat - I'm no expert.

 

Thanks caro, it's not always an expert opinion that matters but more an impartial view.

 

What strikes me is that the bundle has been agreed nearly a year and was compiled by their solicitor in agreement with me. Witness statements were exchanged 2 months ago. So it is only now due to the fact they are going though the case that they believe part of my statement is untrue. I would imagine that their belief that this is untrue would not on its own be enough for the tribunal to agree this should be redacted.

 

The other issue they have is the hearing is the Tuesday following the bank hol so they would be hard pushed to get an order from the et passed prior to this, particularly as I believe they have to copy the request to me and give me 7 days to object?

[caro]

I don't know about ETs but if it was a court they would probably hear an application to strike out at the start of the hearing, but the court would let you know that.

 

I assume they haven't said what they believe us untrue.

 

If you are confident on your WS I wonder if they're playing mind games to encourage you to back down.

 

I have no idea of the strength of your case but what I do know is that people don't always see things the same way so as you approach the hearing try to look at everything with an impartial eye so you can see where the other side may try to find fault and cast doubt on your case. Not easy I know. The better prepared you are the better your chances.

[CaptainMannering]

They have tried to have the case struck out and or a deposit order made but failed on both requests.

 

They have stated what they believe to be untrue but have provided no explanation as to why they believe this. I think it is just mind games and I will advise them that I won't alter my statement (redact the parts they want me to) neither will I be redacting any part of the agreed bundle.

 

I believe I have a reasonable case and obviously the resp has some concern as they feel my statement contains things they don't want the tribunal to hear.

 

It's like me turning round now and saying I believe X Y and Z are lying in their statements and I also want you to remove A B and C from the agreed bundle as it strengthens your case.

 

Mind games I suspect

[becky2585]

It's impossible to advise without reading the statement and knowing the full details of your case. It would only be likely to be inadmissible if it was unnecessarily long or covered a period of time or events which are not relevant to the case or not pleaded in the ET1.

 

It also depends on the wording. The statement is your version of events, so if for example you didn't have proof something was true, you could say "I believe that" or "I was informed that" to make it more relevant.

[CaptainMannering]

It's impossible to advise without reading the statement and knowing the full details of your case. It would only be likely to be inadmissible if it was unnecessarily long or covered a period of time or events which are not relevant to the case or not pleaded in the ET1.

 

It also depends on the wording. The statement is your version of events, so if for example you didn't have proof something was true, you could say "I believe that" or "I was informed that" to make it more relevant.

 

 

Thanks B

 

It's not at all long and covers a period which is relevant. It is true and I have proof that it is true, this is the problem from the resp point as they don't want me to state what I'm stating at hearing.

I didn't think they'd have sufficient time to have this passed as if the write to the tribunal Monday, the tribunal would have to read this and write to me, have an answer from me and come to a decision prior to this Friday as mon is bank hol and tue is the hearing?

[becky2585]

If its as clear cut as you suggest, they don't have much hope of striking out the statement.

 

It will probably be dealt with as a preliminary issue at the final hearing as its now so close.

[CaptainMannering]

It is their opinion that my statement is untrue nothing more and they want me to redact this part. Needless to say I won't be redacting any part at their request.

There is a lot stated in their statements I don't agree with and could be untrue but I don't think I'd succeed requesting them to redact parts of their statements based on my opinion they are untrue.

 

Just annoys me he can call me a 'liar' with no evidence to support this.

[steampowered]

The Tribunal will decide whether a particular statement is true. Do not get into an argument with them about it and do not get upset, there is no need to explain yourself. If there is a debate to be had you will have it at the hearing.

 

Redaction is normally used when a single document contains both admissible information and legally privileged information (such as legal advice from a solicitor). Redaction does not normally mean the whole document is removed, only that parts of it are covered up. Whether they are entitled to make a redaction depends on whether there is a genuine legally recognised reason why some of the information in the document is not admissible. If you don't know what that reason is them ask them to explain it.

 

If they still insist on removing/redacting the documents, and they are material to your case, they should be put into a separate "disputed bundle" and the Tribunal can be asked to decide whether the documents are admissible at the start of the hearing.

[CaptainMannering]

Thanks steam powered I'm trying to hold it together now as the hearing is so close and now they throw this in at the 11th hour.

 

Basically they want me to redact certain paragraphs in my statement which relate to a document which is part in admissible as it contains a transcript of private deliberations (from an audio recording). Although my argument is that some of the "private deliberations" we're actually made in public. It was their solicitor that put this part inadmissable document in the bundle and obviously their solicitors have now read my statement and noted the reference to this document.

 

Should I write back explaining I won't be redacting any of my statement neither will I be redacting any pages of the agreed bundle, and also confirm I have adhered to every order made by the tribunal.

 

Hope this makes sense