Tribunal Advice Please

[becky2585]

Hi all

 

I've just read somewhere (on here) that legal representation IS required for judicial mediation.

Can anyone confirm if this is true?

 

Thanks

 

It's not true. The ET just recommends you bring a companion, and this can be a friend, family member or legal representative.

[CaptainMannering]

It's not true. The ET just recommends you bring a companion, and this can be a friend, family member or legal representative.

 

 

Update on the case.....tel cmd went well, 5 weeks to I'M now. I've received my decision on my request for a review of the EJ's decision to strike out my second case. The decision was upheld as they still feel it has little prospect of success. My issue and question is, the review was conducted by the same EJ that conducted the CMD and struck it out. Surely a review has to be carried out by a different judge, ensuring the review is impartial and independent?

 

Thanks

[becky2585]

Had a look at this point for you today as I actually didn't know the answer!

 

This may surprise you (it certainly did me!) but in actual fact, when there is a matter for review, the tribunal uses its best endeavours to send the decision back to the original judge, the logic being that they are better versed with the circumstances, and their own mindset when making the decision. Only if the judge is unavailable for a sustained period does it go to a separate judge.

[Pusillanimous]

Any decision by an ET can be sent for appeal at the EAT, if there is a legal point.

[CaptainMannering]

Any decision by an ET can be sent for appeal at the EAT, if there is a legal point.

 

Thanks P, not sure if I have a legal point here as you advise, the EAt is a bit of a minefield so I gather. I've got about 3 days to lodge an eat appeal if I was to do so, so without any guidance this is a no go

[CaptainMannering]

Had a look at this point for you today as I actually didn't know the answer!

 

This may surprise you (it certainly did me!) but in actual fact, when there is a matter for review, the tribunal uses its best endeavours to send the decision back to the original judge, the logic being that they are better versed with the circumstances, and their own mindset when making the decision. Only if the judge is unavailable for a sustained period does it go to a separate judge.

 

Becky

 

Thanks I am too surprised, speechless infact. Not sure how they ensure fairness and consistency.

 

Thank you....

[Pusillanimous]

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".

[CaptainMannering]

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".

 

It is discrimination yes, so how would I refer this to the eat, is it an online form similar to et1 etc? And what would I need to put/say

Thanks

[Pusillanimous]

Yes, it is online. However, they are very strict with time deadlines, so you need to do it very quickly if you are to be on time.

 

Which aspect of the tribunal decision did you find unfair? It would appear they accepted the respondent's evaluation. You need to go through the written reasons line by line and jot down which bits are wrong and that could be proven to be so, in a full hearing. Insufficient reasons would be a point of law (case law: Meek). Did the EJ give proper reasoning for saying it had no Reasonable Prospect of Success?

 

To ascertain the various points of law, go to the MoJ judgments database webpage where you can pick your topic (jurisdiction) and see what current case law says on the subject. If any of it supports your claim, then quote it, (EFG vs LMN UKEAT/XYZ/YEAR). That will be your point of law.

 

They will want a copy of the judgment and written reasons and the review decision documents. It is important to follow all instructions, so that you do not accidently fall out of time. If you are in London or Edinburgh, you can hand it in in person..

 

Look up the Employment Appeals web page for a form EAT1.

[becky2585]

I wouldn't submit an EAT appeal without taking legal advice - at that level, you're at serious risk of a costs award if it goes against you.

[Pusillanimous]

No more so than at an ET. The worst case scenario is that the appeal is rejected, as most are (no cost involved at all). If the EAT considers the appeal to have merit then it is rare for costs to be awarded except where:

 

1.r 40 (3) – if the respondent or claimant has “acted vexatiously, abusively, disruptively or their conduct is unreasonable or the claim misconceived.”

If the appeal hearing is allowed, it seems unlikely the above would apply. The appelllant must surely have some insight as to whether they are acting unreasonably, and that would almost certainly be apparent at the Form EAT1 stage.

[becky2585]

The practical fact is that this situation is in danger of a costs award. My practical experience of the EAT indicates that we've almost always got costs back. Not so in the ET!

[Pusillanimous]

My experience is different from yours. I would say to anybody who has a reasonable believe the EJ decision is wrong on a point of law not to be afraid to appeal. If our case has no merit, or you are incorrect or the EAJ disagrees, your claim is sifted out, rejected and goes no further with no involvement of the other party, apart from a letter informing them. If you are granted a hearing, that is because you potentially have a case and have a reasonable chance of succeeding.

 

Becky, on what grounds do your clients get granted costs?

[CaptainMannering]

My experience is different from yours. I would say to anybody who has a reasonable believe the EJ decision is wrong on a point of law not to be afraid to appeal. If our case has no merit, or you are incorrect or the EAJ disagrees, your claim is sifted out, rejected and goes no further with no involvement of the other party, apart from a letter informing them. If you are granted a hearing, that is because you potentially have a case and have a reasonable chance of succeeding.

 

Becky, on what grounds do your clients get granted costs?

 

Guys

 

Thanks forall posts, to update i didnt appeal to the EAT given time constraints and the preparation needed for this.

 

Really need some pointers on my next issue. JM was scheduled as advised and a CMD held. Through ACAS the Resp made a very insulting offer to me last week, ACAS asked for a counter offer to which i used the upper line of my SOL, the Resp rejected this stating to ACAS no more offers would be made.

 

The Resp then later that day wrote to the ET advising "having had further communication with the Claimant via ACAS and after careful consideration the Resp feels JM is not going to resolve this matter and wishes to withdraw from JM".

 

I am quite mad at their approach to mediation and how quick they have withdrawn, but i guess this is standard stuff. I feel i ought to outine my position in order for them to fully establish my position in order to resolve this matter, or proceed to 4 day hearing. I have drafted a letter if anyone can add their thoughts on, obviously any questions please ask and ill expand on it...........

 

 

The Respondent has made it apparent that they no longer wish to negotiate through ACAS or attend Judicial Mediation as agreed by both parties at CMD. The Claimant would like to make his position known to the Respondent, in relation to his Employment Tribunal claim and other issues.

 

The Claimant is happy to negotiate a settlement in relation to either or both of the following points:

 

1. The Claimant & Respondent reaching an agreed settlement in relation to issues to be addressed at a full hearing due to be heard from XXX 2013.
   

1. The Claimant & Respondent reaching an agreed settlement in relation to issues to be addressed at a full hearing due to be heard from XXX 2013, with the addition the details contained within the full content of the disciplinary hearing between the Claimant & Respondent on XXX 2011.
   

 

Issue 1: The Claimant & Respondent can reach a financial or financial re-engagement agreement in relation to Constructive Unfair Dismissal.

 

The Claimant has evidence to support;

 

• The Respondent failed to follow the ACAS & company policy on grievances
  
• The Respondent failing to investigate properly
  
• The Respondent supplying false information to the Claimant which otherwise, without doubt, proves the grievance and appeal should have been upheld
  
• Time-scales were not adhered to
  

 

• The Respondent failed to follow the ACAS & company policy on disciplinaries
  
• The Claimant was completely innocent of breaching the companies XXX policy
  
• There was insufficient evidence to suggest the Claimant should have been subjected to disciplinary action
  
• The disciplinary chair failed to remain fair and impartial
  
• The Claimant would have have been dismissed fairly at any subsequent hearing
  
• The disciplinary hearing, by the own admission of the Respondents Legal Advisor, was not held fairly or in accordance with ACAS or the companies disciplinary policy
  
• Time-scales were not adhered to
  

 

Issue 2: The Claimant & Respondent can reach a financial or financial re-engagement agreement in relation to Constructive Unfair Dismissal & details contained within the full content of the disciplinary hearing between the Claimant & Respondent on XXX 2011.

 

The Claimant has further evidence to support, in addition to Issue 1;

 

• The disciplinary hearing decision, despite being confirmed by the Respondent would be base on fact and evidence, was being based on instructions given by other employees of the Respondent
  
• The Respondent admits dismissing employees to support the requests of management
  
• The Respondents HR department, despite being informed there is no evidence to support dismissal, agrees to dismiss the claimant but encourages a carefully worded dismissal statement
  
• Serious Health & Safety breaches carried out by management, being overlooked by both HR & Respondent's management, despite dismissing other personnel for similar and less severe actions
  
• Stating paying £20,000 out at an Employment Tribunal hearing to dismiss someone they did not want employed any more would be a drop in the ocean and acceptable. This would appear to be a common action carried out by the Respondent.
  
• Respondents managers threatening to kill employees
  
• Respondent failing to pay employees to make their financial position much worse
  
• Respondent describing their staff as real low lives
  
• Respondent asks for guidance from HR as they don’t want to be perceived as prejudice
  
• Respondent falsifying disciplinary & adjournment timings
  
• Respondent describing employees as pillaks, pricks, cocks, knob warts & ****ing Piers Morgan bags
  
• The Respondent searching the contents of employees belongings without consent
  
• The Respondent reporting a known false allegation to the Metropolitan Police in an attempt to have the Claimant arrested
  

The Respondent being obviously concerned with the comments made within the disciplinary hearing did its utmost to ensure at the Employment Tribunal that the Claimant was unable to use his recording or transcript.

The Respondent who having recently been in the public domain for both XXX and XXX, would I’m sure not want any of the above comments made in relation to its staff, to be made public.

 

The Claimant has a strong case with evidence to support his claims.

 

The Claimant is aware that an Employment Tribunal hearing is a public arena and can be attended by any media body. The Claimant is also aware that although his audio recording is not admissible in the Employment Tribunal, once the hearing is concluded he can disclose the details of his case.

 

Would a letter of this nature be sent via ACAS or WP direct to the Resp?

 

Many thanks

[CaptainMannering]

Hi all

 

Just as a ball park figure and I appreciate this is only going to be rough but what is the likely cost to a respondent for a 4 day ET hearing?

 

Taking into account they have 4 witnesses and have taken a barrister to every ET meeting to date it's likely they will bring a barrister and solicitor to hearing. Also taking into account prep work etc could anyone gauge this figure?

 

Are they talking £5,000 , £10,000 , £30,000???

 

Thanks

[caro]

Solicitor over £200 an hour plus VAT for starters, barrister could be £1,000 an hour, travel costs, possibly hotels for them and the witnesses. Possibly cost of witnesses salary to reimburse their employer. That's for their time at the tribunal, and of course they will have spent time preparing.

 

Your figure of £30,000 is not outside the bounds of possibility I wouldn't have thought.

[becky2585]

If they're sending a junior, it's probably £150 per hour x 8 hours per day. Tribunal barristers could be anything from £1,500 to £5,000 per day, although they're unlikely to be top end!

 

At our firm we'd usually send a trainee solicitor and barrister - so just for the hearing, I'd quote circa 8-10k (but that's on northern rates, which are cheaper).

[CaptainMannering]

Guys/Gals

 

Just looking for a bit of advice with the SOL.

 

In a nutshell with my now employer I get 15 days less holiday entitlement that I did with the respondent. Now I have included this is my SOL but no figure at the side of this as I wasn't sure how to calculate (that's assuming this can be claimed for) as I see this a 'loss of benefit'.

 

Any help appreciated.

 

Thanks

[becky2585]

There isn't case law on that point, and I saw this argument very recently.

 

You are only entitled to holiday - not holiday PAY. You receive the same amount of money whether its a day worked, or a days annual leave. So, the general consensus in the legal world is that the Tribunal doesn't have jurisdiction to make such an award, as despite having less holiday, there isn't a financial loss - merely loss of free time.

[CaptainMannering]

Guys/Gals

 

Nothing really to update on just getting closer to witness statement exchange and hearing.

 

Further to my post above on 1st October, I believe this was relayed to the respondent by ACAS, but no comment has been made on it.

 

Just looking for some advise from people who've done similar or may know better. Basically via the recording I obtained and can't use at hearing I have a significant amount of information which would bring the respondent into disrepute and I'm sure they wouldn't want the information I have becoming public knowledge. I'm basically wanting to 'advise' the respondent that I am in the process of consulting a journalist with the information in the recording and the way in which I've been great and affected through my employment and post employment with the wrongful arrest etc. I'm also wanting to advise and am contemplating using social media (via their own public group) the details of the recordings etc, and provide links to the recording for the world to hear. I appreciate this may be unethical but I'm guessing as long as you tell truths they can't claim I'm being slanderous?

Question is would doing this harm in any way my ET case?

Is this a wise thing to threaten them with?

Is this a wise thing to carry out?

 

Many thanks all.....

[honeybee13]

Guys/Gals

 

Nothing really to update on just getting closer to witness statement exchange and hearing.

 

Further to my post above on 1st October, I believe this was relayed to the respondent by ACAS, but no comment has been made on it.

 

Just looking for some advise from people who've done similar or may know better. Basically via the recording I obtained and can't use at hearing I have a significant amount of information which would bring the respondent into disrepute and I'm sure they wouldn't want the information I have becoming public knowledge. I'm basically wanting to 'advise' the respondent that I am in the process of consulting a journalist with the information in the recording and the way in which I've been great and affected through my employment and post employment with the wrongful arrest etc. I'm also wanting to advise and am contemplating using social media (via their own public group) the details of the recordings etc, and provide links to the recording for the world to hear. I appreciate this may be unethical but I'm guessing as long as you tell truths they can't claim I'm being slanderous?

Question is would doing this harm in any way my ET case?

Is this a wise thing to threaten them with?

Is this a wise thing to carry out?

 

Many thanks all.....

 

Hello again. I'm not sure what you're asking advice on, could you elaborate please?

 

HB

[CaptainMannering]

Hi HB

 

To write to the respondent to advise them I will be speaking to a journalist and/or using social media to publicise the details of the recording. I'm hoping this would be enough to spur them into significantly increasing their 'settlement' offer and settle the claim therefore avoiding me bringing the company into the media spotlight (again!!!)

 

Just wondering if this is wise as a WP letter?

 

Thanks

[honeybee13]

Hello again, thank you for that. I was wondering if the bit I quoted above came from your 1st October post.

 

So you want to threaten them with public exposure? That's a brave strategy but I have no idea what the legal implications are. Has the journalist you're in touch with had legal advice?

 

I'm sure the guys will be along with views for you.

 

HB

[CaptainMannering]

HB

 

Yes in a nutshell yes, the lady at acas who relayed the message to the replay indent said it had a hint of blackmail to it.

 

Appreciate it's brave but I'm trying to gather the legal implications before I make a decision. I haven't as yet spoken to a journalist although in trying to make this happen.

 

Thanks

[honeybee13]

Thank you for that. I can't remember, but I assume this was a clandestine recording?

 

HB