Tribunal Advice Please

[tbbt1901]

Well they got the extension.

 

One of the requested docs I received from the resp I knew was inaccurate and contained missing info.

 

This has been agreed by the resp as they have now sent me the 'missing' data I requested. As the inaccuracy I highlighted I was only able to prove as I was directly involved with the incident which was missing (which the solicitor wouldn't have known compiling the report), it is fairly safe to assume that the report supplied may have further inaccuracies that I am unable to prove. That said I have no trust in the reliability of documents they are supplying me.

I asked the resp for an investigation and explanation as to why the report was false an inaccurate but they failed to answer, they simply sent the missing data.

 

Does anyone have any guidance here?

[tbbt1901]

All

 

Just again after bit of advice. After filing my initial ET1, I filed a second form in December 2011 in relation to harassment, discrimination & victimisation post resignation. At the time they stated they were going to apply to the ET to have the cases 'merged' I stated I did not want this and would object so they were heard individually.

They have today wrote (6months after filing their second ET3) advising they are requesting a PHR seeking to strike out the second claim, for reasons they will outline in their letter to the ET today.

 

Any help appreciated.

[tbbt1901]

Wow just had quite a jargony letter sent through if anyone can help out with any advice (i have 7 days) then I'll forward on the letter, thanks

[lbruk]

what does the letter say?

[honeybee13]

Hello there.

 

It would be better to post up an anonymised version of the letter for the guys to see, as lbruk says. Not recommended by PM for all the normal reasons.

 

My best, HB

[tbbt1901]

As the ET will be aware XX has brought two separate claims against the respondent the first XX and the second YY. The first claim was originally for CUD, breach of contract and disability discrimination but the claimant subsequently withdrew his claim of discrimination leaving only claims for CUD and breach of contract. The second claim relates to events that occurred after the claimants resignation and is expressed to be a claim for unlawful harassment and discrimination sustained post resignation. It of course cannot be a claim for harassment or discrimination as the claimant is not pleading that he has any protected characteristic , such a claim having been withdrawn. The respondent submits that to the extent the tribunal accepts that this is a discrimination claim, it should be struck out as misconceived and therefore having no reasonable prospect of success.

 

 

We note that the ET has coded this as a public interest disclosure matter. The respondent submits that no such claim has been pleaded. The ET1 states “i wish to bring a claim..for unlawful harassment and discrimination..” this is in our view a clear claim of discrimination, albeit one that is misconceived as set out above.

 

 

If the tribunal is correct in its coding, then on the facts pleaded the protected disclosure must be the first tribunal pleadings submitted on 10 September 2011 (original ET form sent). The claimant must then suffer detriment from the respondent, and not from any third party, because of this disclosure. The ET1 (second one sent 31 December 2011) refers to the fact that the respondent raised an allegation to the police on 22 September 2011. this is the only act pleaded carried out by the respondent. The other matters pleaded arise from the actions of the police. The ET1 was not however submitted until 2 March 2012 and we would submit that If this were indeed a “whistleblowing” claim, it is considerably out of time, and we would further submit that it was reasonably practicable for the claimant to have made such a claim within time.

 

 

If the ET were to find that there was a valid claim then, lastly, we would submit that it would meet the overriding objective for the two cases to be consolidated. As the second claim relies upon the filing of the first claim there is an inevitable factual connection between the two. There would also be an overlap of witnesses as those who could speak to “normal practise” on XX issues would also be giving evidence in the dismissal claim.

 

 

We therefore request a PHR is listed to consider the following applications:

 

 

1. the claim should be struck out as having no reasonable prospect of success
   
2. in the alternative, if the respondent does not succeed on 1, the tribunal has no jurisdiction to hear the claim as it was brought out of time.
   
3. In the event the tribunal accepts the claim as valid, the two matters brought by the claimant be consolidated and heard together.
   
4. The first matter is not listed until the determination of this application and there be general extension of time to serve witness statements in the first matter until the issue of consolidation has been determined so that both parties are then clear as to what evidence is to be covered in statements
   

….........................................................................

 

 

To clarify for you all: the respondent reported to the police on 22 Sept (12 days after I filed by initial ET claim that prior to leaving on 8 August, I had stolen over £1000 of property. On 22 December the police came to arrest me in relation to this. Long and short: prior to me leaving colleagues had collected the property from me, this I informed the police, police questioned individuals I had named, individuals confirmed my claim, police drop case against me....respondent could have appealed polices decision but due to no evidence they didn’t. (respondent advised police they had spoke to staff and confirmed no one had taken any property from me, when police spoke to the people I named (I provided text messages of individuals asking me to give them property) the individuals confirmed they had taken property. Police dropped case end of January 2012. I filed second ET on 2 March, within 3 months of the police arresting me. They mention about a third party which is the police but it was the actions of the respondent which involved the police

 

 

 

 

Thanks all..........

[becky2585]

Will respond fully, but for now, why was the DD claim withdrawn - did you concede you weren't disabled, or that no discrimination took place, when withdrawing?

[tbbt1901]

Hi becky, yes in short I wasnt disabled, throughout a period of suspension, throughout a formal grievance and after being put through a disciplinary which was held against the company and acas cop, I was diagnosed with work related stress and depression and prescribed anti depressants and as such my mental health was impacted for a short period.

 

I filed for DD but after taking advise withdrew this claim. Hope this makes sense.....

[becky2585]

Well in relation to that as a first issue, it's still possible to suffer victimisation for raising a complaint of discrimination... Perhaps theoretically even if you weren't even disabled, as you had asserted your right to bring such proceedings and suffered victimisation as a result. However, it is dodgy ground, as by your own admission you were only ill for a short period, which means disability is highly unlikly here. I am honestly not sure what impact the withdrawal would have in those circumstances, though.

 

A major complicating factor here is what you are actually pleading. Is it victimisation as a result of alleging disability discrimination, or victimisation as a result of making a public interest (whistleblowing) disclosure? The ET seems to think you are pleading whistleblowing, which may be easier to prove, but I can't really comment on the merits of either without knowing the full background.

 

The next point I would suggest looking at is the consolidation of the claims. I don't see any reason to oppose this, and quite honestly, the tribunal will order it anyway, so it's almost pointless opposing it. It's far more likely to be in line with the overriding objective to hear the claims together (from a cost and time point of view alone) and so opposing it without good grounds won't look good on you and may even irritate the tribunal.

 

Next, the out of time point. Unfortunately, unless there was a further act you could claim upon aside from the police referral, you could well be out of time. The relevant limitation date on that act alone would have been 21 December, meaning you were on the face of it three months late in submitting your claim. However, clearly you didn't know about the police referral until your arrest on 22 December, therefore you have the argument that a) the date of knowledge should be used, rather than the date of the actual act, or b) that it wasn't reasonably practicable to bring the claim previously as you didn't know. The problem with this is that you then need to convince the ET that the first possible date you could have brought the claim was 2 March, which is where I think you might struggle.

 

It's similar to an employer giving a bad reference, but the employee not finding out until months later - it would possibly be unreasonable for the employee not to be able to bring a victimisation claim (if relevant), but nonetheless it would be on the face of it out of time.

 

I think given the previous issue alone, it's likely a PHR will be listed.

[tbbt1901]

Becky

 

Thanks for the great advice.

 

Firstly, I brought the second claim as a result of victimisation and harassment in that they had me arrested for no reason and without any evidence or investigation. This in itself could have resulted in me losing my job as I'm sure you can reason with. I am not claiming victimisation as a result of alleging DD, I'm not sure of the meaning of a public interest whistle blowing disclosure which as you say the ET seem to think I'm pleading this. If I understand this I can put this in my response to the ET and respondent.

 

As for consolidation, I didn't want this as ultimately if I lose I lose them both, if they are separate I have a fair chance at both hearings, although I suppose you could argue if one case is very strong then it would boost the whole case?

 

In relation to the out of time. I took this incident to the cmd and presented it to the EJ, on 15 Feb. He advised this could not be relied upon for CUD as this occurred after resignation, but there were other things I could do but I'd need to take legal advice. I asked around and a second ET was the decision I came to given my options. So as per the EJ advice in not being able to bring this into the existing claim, this is why it wasn't raised until 2 March.

[becky2585]

Okay...

 

The basic law surrounding whistleblowing is that firstly, any disclosure must be made in good faith. It secondly also must be a "qualifying disclosure" namely relating to criminal activity, health and safety breaches, environmental damage, an individual being in danger, a miscarriage of justice or concealing information in relation to any of those points. Arguably it could encompass a breach of your own contract, but that is a weak point which has been significantly called into question by proposed changes to the law.

 

I understand your explanation of the time point and it could be a valid explanation. Could you explain though why legal advice was not taken between your arrest and 15 Feb? Just playing devils advocate.

 

Whether consolidated claims or not, they are taken and assessed individually, so it really isn't of any advantage to have them heard separately. You could still win half, for example. In fact, you could win or lose any number of claims at one hearing, it's not a 100% win or lose situation. If anything, if you lost the first claims at one hearing, they may be able to strike out the second batch as having no merit, so it wouldn't help you at all.

Edited June 18, 2012 by becky2585

[tbbt1901]

Becky

 

Thanks again. When the police incident happened I wrote to the ET making them aware within a few days, as I heard nothing from them I raised it at the CMD.

 

How do I answer their first point then, " it of course cannot be a claim for harassment or discrimination as the claimant is not pleading any protected characteristic, such a claim having been withdrawn" and second point "the et1 states I wish to bring a claim..for unlawful harassment and discrimination" this is in our view a clear claim of discrimination?

 

So effectively 'whistle blowing' is making public/bringing a claim if you are subjected to any qualifying disclosure by your employer/former employee? How does this fall into "public interest" just out of interest in ET claims?

 

Thanks becky apologies for all the Q.....

[becky2585]

It's quite complicated. Whistleblowing claims are governed by the Public Interest Disclosure Act 1998 and to be in the "public interest" must fall into one of the above categories. They are made by you either to your employer or to a relevant authority, not in public per se. Any qualifying disclosure you make or made previously would be one raisedby you, either verbally or in writing, in good faith (eg. Not for personal gain). Usually they are encompassed within grievances, for example.

 

I think what the respondent is trying to suggest is that you did plead discrimination, not whistleblowing, and subsequently withdrew the claim, meaning that discrimination was your initial intention, whether successful or not, and therefore you never raised whistleblowing as a claim. "Unlawful harassment and discrimination" are claims which fall into discrimination legislation only, whereas the PIDA 1998 merely requires a detriment as a result of making a disclosure and also entails victimisation provisions. There is no harassment or discrimination in whistleblowing (in the legal sense) and therefore they are arguing that whistleblowing cannot be implied by your words. However, given that you didn't have the benefit of legal advice, a tribunal will often help a claimant to plead their case at a full hearing and therefore may have some sympathy for the fact that you didn't know the exact legalese required to make the relevant claims. It's very much dependent on getting a claimant friendly judge, though.

[becky2585]

The other point to note with whistleblowing is that injury to feelings awards can only be claimed for any detriment short of dismissal, you can't claim for the dismissal itself, although if the dismissal was linked to whistleblowing by the ET it would be automatically unfair which would waive the reasonableness tests in determining whether the dismissal was fair. You could still claim injury to feelings for victimisation post empllyment if it's linked to whistleblowing. It would also waive the 12/24 month qualifying service to bring an unfair dismissal claim. I appreciate that may not apply to you but it's useful background information nonetheless.

[tbbt1901]

Wow it is quite complex granted.

 

My 'understanding' of their wording is; the second claim, I have raised for discrimination, victimisation & unlawful harassment, as I'm not claiming discrimination under a protected characteristic the claim cannot be then brought??? They are saying the claim was raised for this and not whistleblowing (which from what your saying I should be proceeding with). I withdrew the claim for discrimination from the first ET1, when the ET asked for the head of discrimination I was claiming on the second claim, I advised I had been discriminated against for reasons I didn't know but it wasn't under a protected characteristic (but believe it to have been because I proceeded with ET proceedings). Had I subsequently been charged and prosecuted for their theft allegation I believe they would have used this in the ET to strike out my claim

[becky2585]

Discrimination can't legally exist unless it's because of or in relation to one of the nine protected characteristics. That means discrimination which is direct, indirect, or harassment.

 

Arguably, if you allege a complaint of discrimination, but you are later found not to be disabled, a victimisation claim could still be brought if the reason for the less favourable treatment was a direct result of your previous assertions in relation to potential discrimination. You can also bring associative discrimination claims if the discrimination was to someone close to you, but again I don't think that's relevant and it's just for background info.

[tbbt1901]

Becky

 

Thanks understand the discrimination and protected characteristic. Is it effectively not discriminatory to not be able to claim discrimination unless you have a protected charaterictic :-/

 

So in regards to the whistleblowing I'm claiming, it will fall under harassment and victimisation then as aspose to being 'discriminnated'?

[becky2585]

Yep you're right re the discrimination. Although to be discriminatory not to be able to bring a discrimination claim, it would have to put people in a particular group sharing the same characteristics at a disadvantage, which it doesn't. Re whistleblowing, any harassment would fall under the victimisation provisions post employment. There's no legal harassment provision per se.

[tbbt1901]

Draft letter Becky, could you advise please.......

 

Dear Sirs

 

 

I write in response to correspondence sent to the Employment Tribunal from the respondent on 18 June 2012.

 

 

It is the claimants position that the second claim raised on 2 March 2012 is not misconceived and should not be struck out.

 

 

The claimant having now taken legal advice on the matter has no objection to the claims being consolidated should the Employment Tribunal agree this would meet the overriding objective of the case.

 

 

The claimant was visited by the police on 21 December, as a result of the respondents allegations, to be arrested. The claimant wrote to the Employment Tribunal in relation to this incident on 3 January 2012, he then raised this matter again at the case management discussion. Employment Judge A advised taking advice over the matter as the incident could not be relied upon for constructive unfair dismissal. After taking advice the second ET1 form was sent on 2 March 2012.

 

 

The claimant did not have the benefit of legal guidance when filing his second ET1. The claimants second claim is one of whistleblowing, and therefore the Employment Tribunals coding of this claim is correct. In making this claim the claimant submits it was made within the time scales, as he wasn’t aware of the respondents actions and intentions until the police visited him on 21 December 2011, therefore it would have been impossible to raise a claim prior to this date. As stated this was immediately brought to the attention of the Employment Tribunal, and then again at the case management discussion. The second ET1 was filed within 3 months of being made aware of the respondents actions.

 

 

The respondent has confirmed in correspondence on 18 June 2012 that it has reviewed and amended its list of witnesses for the hearing of case XyZ. On 15 March 2012 the respondent advised the employment tribunal that it would be calling:

 

 

• 
  
• 
  
• 
  
• 
  
• 
  
• 
  
• 
  

 

On 18 June 2012 I was advised X, Y, would not be called and Z was being reviewed with a view to not being called. They also advise that a representative from OH will now not be being called as proposed. This reduction in witnesses, down to 4, would significantly impact the length of hearing required and I ask that this is reviewed.

 

 

The respondent will be in a position to confirm the names of witnesses to be called for the current second claim. If these names can be supplied within 7 days then the case can be reviewed and the length of hearing amended, as due to the significant reduction in witnesses the case may only need listing for 3 days.

 

 

In regards to the respondents request for a PHR, the claimant feels this may not be necessary. The initial claim having had a CMD has now been agreed. Should the two claims be consolidated, the orders will need reviewing in order to prepare for hearing. Should any discussions be required the claimant requests a CMD be held via telephone to discuss the matter, this is due to the claimants significant distance of travel to the courts.

Edited June 19, 2012 by tbbt1901

[tbbt1901]

I would probably also add something along the lines......I feel any objection to the second claim raised should and could have been raised in a more timely manner by the respondent. Given also there was no objection raised in their subsequent ET3 application?????

[becky2585]

The letter is actually very good. The only point I would note is that I'm not sure you should put that you've taken legal advice as this could potentially be misleading for the Tribunal (unless you have indeed spoken to a solicitor in a formal capacity). This will raise further issues for you; namely that a solicitor would have informed you of any potential pitfalls in your case and whether it has reasonable prospects. If it's later found not to have reasonable prospects (or to be misconceived) this could come back to haunt you later on in terms of costs, as you would be cross examined as to the exact nature of the legal advice you had received and as to why you continued with the case if a solicitor had advised you. It's up to you whether you include it, though.

 

It is definitely wise to mention the length of hearing point, and if the Respondent hasn't done this in relation to the witnesses (which they should have done) the Tribunal won't look favourably upon this in line with the overriding objective to deal with cases efficiently, as clearly listing a hearing for a day too long isn't in line with the objective!

 

If you genuinely feel a PHR isn't necessary, you may need to elaborate on that point as to why. You need to specifically state that there is no evidence the case has no reasonable propsects of success (cite case law if you can find any), reiterate that the claim was not out of time (again if there is any relevant case law you should use this to back the point up) and in relation to the witness statements, they may have a point as witness statements will need to cover all the claims and issues and therefore again it would not be efficient to have one witness statement disclosure and supplementary statements later on. If the Judge doesn't order a PHR (and you do have an arguable case for it not to be listed) then a CMD probably will be needed as the matter will need to be relisted. Depending on when the first hearing was listed, the ET may not vary the deadlines for witness statements if they are far in the future, although if they are coming up then clearly they'll need to be amended.

[tbbt1901]

Becky

 

I will amennd and repost my letter tonight, are you available letter to glance over it, obviously I won't interfere with the football

[tbbt1901]

Dear Sirs

 

 

I write in response to correspondence sent to the Employment Tribunal from the respondent on 18 June 2012.

 

 

It is the claimants position that the second claim raised on 2 March 2012 is not misconceived and should not be struck out. Furthermore is there any evidence to suggest that the case has no real prospects of success.

 

 

The claimant having now taken advice on the matter would have no objection to the claims being consolidated should the Employment Tribunal agree this would meet the overriding objective of the case.

 

 

The claimant was visited by the police on 21 December, as a result of the respondents false allegations, to be arrested. The claimant wrote to the Employment Tribunal in relation to this incident on 3 January 2012, he then raised this matter again at the case management discussion. Employment Judge F advised taking advice over the matter as the incident could not be relied upon for constructive unfair dismissal. After taking advice the second ET1 form was sent on 2 March 2012.

 

 

The claimant did not have the benefit of legal guidance when filing his second ET1. The claimants second claim is one of “whistleblowing”, and therefore the Employment Tribunals coding of this claim is correct. In making this claim the claimant submits it was made within the time scales, as he wasn’t aware of the respondents actions and intentions until the police visited him on 21 December 2011, therefore it would have been impossible to raise a claim prior to this date. As stated this was immediately brought to the attention of the Employment Tribunal, and then again at the case management discussion. The second ET1 was filed within 3 months of being made aware of the respondents actions.

 

 

In regards to the respondents request for a PHR, it is the claimants submission that this is not required. This is on the grounds of;

 

 

• There was no objection or strike out raised by the respondent in their ET3 response.
  

• The claim is raised in good faith & is not misconceived, there is no evidence to suggest that the case has no real prospects of success.
  
• The claimant has confirmed this is a “whistleblowing claim.
  
• The claimant raised the claim as soon as was reasonably practicable and within 3 months of being aware of the intentions of the respondent.
  
• The claimant will agree to, if the Employment Tribunal decides, the two claims being consolidated.
  

 

 

 

The initial claim having had a CMD has now been agreed. Should the two claims be consolidated, the orders will need reviewing in order to prepare for hearing. Should any discussions be required the claimant requests a CMD be held via telephone to discuss the matter, this is due to the claimants significant distance of travel to the courts.

 

 

The respondent has confirmed in correspondence on 18 June 2012 that it has reviewed and amended its list of witnesses for the hearing of case XX. On 15 March 2012 the respondent advised the employment tribunal that it would be calling:

 

 

• C
  
• N
  
• A
  
• D
  
• J
  
• J
  
• M
  

 

On 18 June 2012 I was advised J, M, would not be called, and C was being reviewed with a view to not being called. They also advise that a representative from OH will now not be being called as proposed. This reduction in witnesses, down to 4, would significantly impact the length of hearing required and I ask that this is reviewed. Due to this significant reduction in witnesses, the respondent should have already made the Employment Tribunal aware to ensure the case was dealt with efficiently.

 

 

The respondent will be in a position to confirm the names of witnesses to be called for the current second claim. If these names can be supplied within 7 days then the case can be reviewed and the length of hearing amended, as due to the significant reduction in witnesses the case may only need listing for 3 days.

 

 

Yours Sincerely

[tbbt1901]

Becky

 

Well the letter has gone to the resp. They state in an email to me "we do not believe this is pleaded as a whistleblowing claim". Is this a good thing or a bad thing for me, I'm not entirely sure what they are implying?

 

Also in relation to schedule of loss and compensatory amounts for whistleblowing, where do you start in relation to calculating?

 

Finally I'm wanting the police officer to provide evidence in my defence, he said when I asked him that I would need to apply to police legal services, he has since moved forces so I can't speak to him. Do you have any experience or advice of what to do here? Is it as simple as a witness order?

 

Thanks

[becky2585]

Hi, sorry I missed your last post!

 

Basically they are implying that you never intended to bring a whistleblowing claim. They may be right, which could cause a problem, depending on whether you have a sympathetic ET Judge. Just because you didn't word the claim in correct legalese shouldn't preclude you from bringing it, altho you have to show that you did intend to claim something along those lines...

 

In terms of the schedule of loss and compensation, its calculated as an injury to feelings award similar to discrimination claims. Have a look for the Vento guidelines, but the middle amount is around 15k.

 

You can request a witness order from the ET if you believe their evidence may be useful. However, you need an address to serve it on, which could prove difficult!