Tribunal Advice Please

[steampowered]

What is the paragraph about?

 

"privacy" does not make a document inadmissible. Settlement negotiations might.

[tbbt1901]

The paragraph relates to a statement made by the disciplinary chair in relation to 'they were going to dismiss me and would probably lose at tribunal but paying £20k at tribunal is a nothing to get rid of someone they don't want'

 

Although I heard this comment they are claiming that this was a private conversation between the chair and note taker and so isn't admissible. I heard this as I was outside the room and they had the door open.

[steampowered]

I cannot think of any legal reason why that should be inadmissible. It is not legally privileged. I would refuse to redact the statement and refuse to agree to redaction of the bundle. If there is still a dispute about the bundle, they will have to put it in a separate disputed bundle and argue it in front of the Tribunal.

[tbbt1901]

They will do this as you can see why they want this removing from my statement, it prejudices their case and supports mine fully.

He has no foundation to base his assumption on that this is "untrue" that I heard this statement it is merely his opinion and I can't see any way why that would be a case for me to redact the statement.

 

They will argue this was a private deliberation and as such this is inadmissible. I will argue that this issue can be dealt with in the main hearing and would not require any preliminary hearing on the day.

 

Thanks SP

[tbbt1901]

Becky or SP or anyone with extensive legal knowledge

 

Im really after some good advice here as its make or break for my case in some respects. In light of the above, after i today declined that i wouldnt be redacting any part of my statement or bundle, the resp has wrote to the ET and states:

 

Dear Sir or Madam,

 

I act for the Respondent in the above matter.

 

The Hearing of this claim is listed to commence on 28th May 2013. Given the nature of this application, we request that a separate Employment Judge other than the one listed for the Hearing consider it. This is an application that is capable of being decided on the papers, and we request that a decision be reached before the commencement of the Hearing. If it is not possible for this application to be decided before the 28th May, we believe that a separate Employment Judge other than the one listed for the Hearing will need to be available at the start of the day to decide this matter at the outset.

 

On 17th October 2011 Employment Judge MacInnes ruled that:

 

"Having regard to the judgment of the Employment Appeal Tribunal in Chairman and Governors of Amwell View School v Dogherty [2007] IRLR 198 Employment Judge MacInnes ORDERS that the Claimant is debarred from referring to or otherwise making use of his recording and/or transcription of the disciplinary panel’s private deliberation at the disciplinary meeting on X/X June 2011."

 

Paragraph 86, and part of paragraph 93 of the Claimant’s witness statement (a copy of which is attached), in breach of this Order, refer to the private deliberations of the disciplinary panel’s private deliberation at this meeting. Although the Claimant contends that this was heard through an open door, it is submitted that this is not a relevant distinction – this was a private deliberation and the decision in Dogherty that evidence of such deliberations is inadmissible is based on the nature of the deliberation rather than the means by which the Claimant contends he obtained such evidence. In any event, the wording of paragraph 86 is taken directly from the inadmissible transcript.

 

We therefore request that the Tribunal order that paragraph 86, and the line at paragraph 93 reading ‘what I had heard in the corridor stated by the chair’ of the Claimant’s witness statement be removed and not read by the Tribunal.

 

In compliance with Rule 11, we have copied in the Claimant to this correspondence and hereby notify him that any objection must be sent to the Tribunal within 7 days of receiving this application.

 

Further, pages 7, 341 and 342, and part of page 349 of the Bundle to be used at the Hearing, contain and/or make reference to the transcript of the disciplinary panel’s private deliberations. We hereby notify the Tribunal that we will be redacting these from the Bundle to be used at the Hearing. If the Claimant does not agree to this, we request that he notify the Tribunal within 2 days of receiving this. Again, if this is not agreed, we believe that it will be necessary for a separate Tribunal judge other than the one listed for the Hearing to resolve this matter.

 

Page 7 of the bundle they want to redact is my ET1 as the statement in paragraph 86 is written in there.

 

Paragraph 68 of my statement is as follows:

 

(86) Shortly after the adjournment I went to the toilet, which was very close to the meeting room. As I came out of the toilet, I could see the door to the meeting room was wide open and could hear the chair and note taker talking loudly, which could be heard in the public corridor where I was stood. I heard the disciplinary chair state to the note taker “If this was a court of law, the tribunal would air on his side, they would see it a bit more black and white, we would award the loss of earnings for that time, its nothing. HR always air on the side of caution, if it means we pay £10,000 to £20,000 to get rid of someone we don't want I think its very acceptable”. This statement made by the disciplinary chair (page 342 – lines 11 to 14) was sent to the respondent in a letter dated 17 June 2011. Following hearing this statement I returned back to the lobby area for the remainder of the adjournment.

 

I really need some help on what to put back to the ET. But basically my thoughts are: it is the opinion and opinion only of someone that wasn't at the disciplinary hearing, that states i did not hear paragraph 86. They have provided NO evidence to support this statement being untrue. As they don't want this statement being used they are claiming this was a private deliberation. A private deliberation should take place in private and should not be conducted in an area which can be heard by the general public. The statement i heard was not a private deliberation and as such no part of my statement is in breach of any order made by the employment tribunal. Needless to say there are a number of statements contained in their witness statements which i believe to be untrue but theses will be addressed at the hearing.

 

I just want to word this well so want to make sure everything is in there that needs to be, and there is nothing in there that doesn't need to be said. if you need any further information or clarity please ask.

 

I really do thanks you in advance an appreciate every second of your time.

[becky2585]

Unfortunately I think the Respondent has a point.

 

That part of your evidence has already been struck from the record and so you shouldn't be permitted to refer to it in your statement or the bundle - if it's word for word, that could only be gained through use of the transcript.

 

By all means oppose the application on the grounds you have suggested - but I doubt you will be successful as its dodgy ground at best. As you do not have the benefit of legal advice, I would suggest that the Tribunal won't act in a punitive way towards you, but I do believe they have grounds for strike out of that evidence due to the wording of the 2011 Order.

 

I would caveat my advice here by saying its very difficult to advise in that level of detail without reading the context of the statement as a whole. I also don't know what p342 is referring to!

[Emmzzi]

you know, I am not sure the statement helps your case anyway. A judge is not concerned with an opinion of what the employer were doing; only what they actually did.

[tbbt1901]

Unfortunately I think the Respondent has a point.

 

That part of your evidence has already been struck from the record and so you shouldn't be permitted to refer to it in your statement or the bundle - if it's word for word, that could only be gained through use of the transcript.

 

By all means oppose the application on the grounds you have suggested - but I doubt you will be successful as its dodgy ground at best. As you do not have the benefit of legal advice, I would suggest that the Tribunal won't act in a punitive way towards you, but I do believe they have grounds for strike out of that evidence due to the wording of the 2011 Order.

 

I would caveat my advice here by saying its very difficult to advise in that level of detail without reading the context of the statement as a whole. I also don't know what p342 is referring to!

 

Hi B

 

It's great to get a view impartially on this. All I would add is that yes it is worded off a transcript but the transcript was written off what I heard rather than from the recording.

 

The respondent has confirmed that: "this does not prevent the claimant from referring to any other part of the meeting at which he was present" so my argument is that I was present for this.

 

Appreciate we're arguing effectively over technicalities here but surely as long as I'm breaching the order they don't have a case.

[tbbt1901]

If you we're arguing this for a claimant how would you approach?

[becky2585]

This needs to be literally dissected to work out what you can and cannot do. I think it's a weak argument, but there's a way to try and dissect it, although I doubt it will be successful...

 

The Dogherty case is not one that I am familiar with and this is not a legal issue that I've come across previously (not in terms of private deliberations, rather than mere covert recording). The point made in Dogherty is that it would be contrary to public policy to allow such evidence to be adduced (and indeed would "open the floodgates" to similar claims) as such deliberations are intended to be just that; private, and therefore arguably "privileged" (although not in the legal sense). Your argument that you were present for the private deliberations will therefore likely fail. In all honesty, such conversations are commonplace, but the vast majority of individuals would not be party to them. That said, in terms of whether such conversations had taken place in written form, for example by email, I would think that this would be covered by any disclosure obligation... but unfortunately the ET has already ruled against you on that point, so you can only look at what they have forbidden you to do.

 

What you appear to be forbidden to do is refer to the private deliberations of the panel in written or recorded form, but upon literal reading of the Order I would argue that doesn't preclude you from adducing evidence that was recorded from memory only.

 

A literal reading of the Order is that you are "debarred from referring to or otherwise making use of [your] recording and/or transcription of the disciplinary panel’s private deliberation at the disciplinary meeting on X/X June 2011". The Order does not state that you cannot refer to the panel's private deliberations at all (but that may be a semantic error in the Order as the case law states that you should not be able to discuss private deliberations at all) and arguably there is nothing else in the Order banning you from adducing evidence as to the fact that you overheard the conversation, so you could argue technically speaking that it shouldn't be debarred. The Respondent is probably correct to strike out your evidence as to the exact wording of what was said, as clearly that has been taken from the transcript. Perhaps therefore you should look at requesting an amendment rather than a strike out to the statement, to something far more vague, such as "I overheard the Respondent discussing how much it would be worth to get rid of me" rather than using the transcript to your advantage, which would almost certainly not be permitted.

 

Again, I doubt you will be successful, but that would be my beginning argument at least. I would be interested to see if anyone else had an alternative viewpoint.

[tbbt1901]

This needs to be literally dissected to work out what you can and cannot do. I think it's a weak argument, but there's a way to try and dissect it, although I doubt it will be successful...

 

The Dogherty case is not one that I am familiar with and this is not a legal issue that I've come across previously (not in terms of private deliberations, rather than mere covert recording). The point made in Dogherty is that it would be contrary to public policy to allow such evidence to be adduced (and indeed would "open the floodgates" to similar claims) as such deliberations are intended to be just that; private, and therefore arguably "privileged" (although not in the legal sense). Your argument that you were present for the private deliberations will therefore likely fail. In all honesty, such conversations are commonplace, but the vast majority of individuals would not be party to them. That said, in terms of whether such conversations had taken place in written form, for example by email, I would think that this would be covered by any disclosure obligation... but unfortunately the ET has already ruled against you on that point, so you can only look at what they have forbidden you to do.

 

What you appear to be forbidden to do is refer to the private deliberations of the panel in written or recorded form, but upon literal reading of the Order I would argue that doesn't preclude you from adducing evidence that was recorded from memory only.

 

A literal reading of the Order is that you are "debarred from referring to or otherwise making use of [your] recording and/or transcription of the disciplinary panel’s private deliberation at the disciplinary meeting on X/X June 2011". The Order does not state that you cannot refer to the panel's private deliberations at all (but that may be a semantic error in the Order as the case law states that you should not be able to discuss private deliberations at all) and arguably there is nothing else in the Order banning you from adducing evidence as to the fact that you overheard the conversation, so you could argue technically speaking that it shouldn't be debarred. The Respondent is probably correct to strike out your evidence as to the exact wording of what was said, as clearly that has been taken from the transcript. Perhaps therefore you should look at requesting an amendment rather than a strike out to the statement, to something far more vague, such as "I overheard the Respondent discussing how much it would be worth to get rid of me" rather than using the transcript to your advantage, which would almost certainly not be permitted.

 

Again, I doubt you will be successful, but that would be my beginning argument at least. I would be interested to see if anyone else had an alternative viewpoint.

 

 

Thanks Becky

 

I can see where your coming from and appreciate what your saying, it is a rare subject and one which isn't stringent forward I accept.

 

I would be interested in another view to yours from someone with similar experience.

 

Many thanks

[steampowered]

"Having regard to the judgment of the Employment Appeal Tribunal in Chairman and Governors of Amwell View School v Dogherty [2007] IRLR 198 Employment Judge MacInnes ORDERS that the Claimant is debarred from referring to or otherwise making use of his recording and/or transcription of the disciplinary panel’s private deliberation at the disciplinary meeting on X/X June 2011."

 

It looks like they already have an order that you cannot make any use of the transcript? If so, it will be impossible to contest this because the order puts the issue beyond doubt - you cannot make any use of your recording of the transcript. Trying to ignore the order and relitigate the same issue over again could be seen as unreasonable conduct and puts you at risk of being ordered to pay the Defendant's legal costs. I think you should write to the Defendant and the ET agreeing to remove the transcript from the bundle and remove any reference to it from your witness statement.

 

The order only refers to your recording/transcription; so in theory you could refer to your memory of the event (not based on the transcription). However this would be a very technical distinction and I think should not be pursued. Do not get carried away about the importance of this statement because it is not a case winner. It is the actual legal position and whether you were actually dismissed you should focus on; this is not the same thing as what the panel thought their legal position might be.

Edited May 21, 2013 by steampowered

[tbbt1901]

Guys

 

Getting close to the moment now. I was yesterday at the 11th hour emailed by the resp with a supplementary witness statement from one of the witnesses and also a 100 page supplementary bundle.

 

Reading through both its evident that his statement and evidence in the supp bundle have been created as a result of reading my witness statement and evidence in the agreed bundle. They have asked me to confirm that I am happy for this supp bundle to be used which I haven't.

 

Does anyone have any advise as it was my understanding that once the bundle and statements had been exchanged alterations and additions had to be at the agreement of both parties.

 

Thanks x

[Pusillanimous]

It's normal last minute nerves to submit last minute documents. Nothing you can do about it, but do look through the supplementary bundle to make sure there is nothing legally privileged or without prejudice in there. It probably won't even be looked at. If so, insist that it be removed and transferred to a "disputed" folder to be discussed on the morning of the hearing.

[tbbt1901]

There's nothing WP or legally privileged. So are you saying their additional documents in the supp bundle and their supp statement will be allowed to be included?

 

Thanks P

[Pusillanimous]

Yep. The view is, it is in the public interest to hear all evidence.

[tbbt1901]

So why exchange statements and evidence then, why not turn up on the day?

 

My argument is they have sent this through on the last working day prior to the hearing, I have no time to look at their supp bundle or supp statement so this prejudices my case

[Pusillanimous]

Before the hearing starts you should raise an objection on the grounds of prejudice. It will need to be convincing. However, no harm in arguing this, so they can bear it in mind.

[becky2585]

So why exchange statements and evidence then, why not turn up on the day?

 

My argument is they have sent this through on the last working day prior to the hearing, I have no time to look at their supp bundle or supp statement so this prejudices my case

 

Has the Tribunal allowed supplementary statements? If not its a very dirty tactic and you should apply for them to be struck out at the start of the hearing. Put together a worded application for the Judge to read if you think that would help. The additional documents will need to be allowed, but the Respondent should be heavily criticised for leaving it so late!

[tbbt1901]

Has the Tribunal allowed supplementary statements? If not its a very dirty tactic and you should apply for them to be struck out at the start of the hearing. Put together a worded application for the Judge to read if you think that would help. The additional documents will need to be allowed, but the Respondent should be heavily criticised for leaving it so late!

 

They haven't applied to the tribunal for the evidence or statement to be included, they sent it to me and asked if I agree to have it included which I haven't.

 

I don't have time to read through 100+ pages and alter my defender at this late stage. So bother tribunal haven't allowed this becky

[Pusillanimous]

No point stressing about it as the tribunal will probably allow it. Don't forget, if during the hearing it becomes clear a document you need to back you up is missing from the bundle, do not hesitate to bring it along with copies for each of the tribunal and the other side. It happens all the time - sometimes several times during the course of a hearing. The tribunal's job is to find facts, so make sure they have them. Agreeing a bundle is really to do with making sure that documents you don't have that the other party do have is made available. Neither you nor the other party can suppress documents that either of you have and want to include, without any legal reason.

[tbbt1901]

Hi All

 

Came out of tribunal yesterday after a 4 day hearing and just wanted to feedback to all the people who've helped over the last 20 months.

 

To cut a long story short it was found that I wasn't constructively dismissed. I think looking back now I had very little chance of succeeding to be honest. They had a solicitor and a barrister who were very good and knew the case as well if not better than I did, coupled with his legal expertise and knowing what to ask it was an up hill struggle for me from the start. They cross examined me for 5 hours which was intense.

 

This was not an experience I would care to repeat, very hard work and intense. Hours and hours of prep seemed wasted as the judge from the outset limited my claim to one major 'incident' and so we were left to prove that. I felt the judge (sitting alone) was very much biased towards the respondent (in restricting my questioning to the issues and allowing them to question what they liked) I'm not saying I disagree with his decision but if I'd known how restricted my claim was going to be made and the level of proof I needed for an incident to have breached mutual trust and confidence then I probably wouldn't have bothered.

 

That said, it was an experience and in a lot if ways I enjoyed it. I got the opportunity to get some closure from their witnesses and see them out of their comfort zone being cross examined in court.

 

Hindsight is a wonderful thing, I should have taken the commercial settlement

 

The judge complimented me on how I'd presented my case and I left with a moral victory. One final question I have before effectively this thread can be closed.....it wasn't mentioned at all in the hearing and there was no suggestion of it, but in relation to costs does the resp have to make an application for these at the hearing or can this be done after?

 

I would like to say a big thanks to Becky, Mariefab and Pus who have been fantastic. I appreciate all who have passed comment tho, including honeybee.

 

I will make a donation to this fantastic site....

 

THANKS AGAIN

[Pusillanimous]

Commiserations, kgrayson00 . Thanks for sharing your experience, which I am sure will help others coming after you. However, when reality sinks in and cold light of day dawns, you might still feel dissatisfied, in which case it is worth considering an appeal. You can appeal any decision, including the one to only let you have one issue. Were you aware in advance it would be a judge sitting alone? If not, you can appeal that. Did you ask for written reasons at the hearing? If not, you need to do it in writing within 14 days. It is worth doing this so that you can spot whether there have been any legal errors, which you can appeal (but note deadline of 42 days in which to do so). You need to ask for a review within 14 days of the hearing if you think there has been an error in reasoning or application.

 

Costs can be applied for in advance, at the hearing, or within 28 days of the hearing. Unless the judge criticised you for bringing the case, I shouldn't worry about it.