Constructive dismissal? - ** SETTLED **

[becky2585]

Hi, sorry I missed this yesterday.

 

A request for more information can be made at a CMD by a respondent if they consider that your discrimination claim wasn't "fully particularised" ie it lacked core information.

 

The judge can then make an "order for further and better particulars". I'm not sure whether they'd do this against an unreprssented claimant, as when I've done this in the past it's been heavily legally, rather than factually, based.

[dj1971]

No worries Becky,

 

I am very grateful for all your help and assistance.

 

is it reasonable that I do not grant access to my medical records and have removed their suggestions about a medical expert, replacing them with my GP?

 

DJ

[becky2585]

If disability is in dispute, you'll more than likely be ordered by the tribunal to produce records - so I'm not sure it matters too much!

[dj1971]

Thanks Becky,

 

So for now I can go with not providing the additional information requested by the respondent and submitting my GP as the suggested medical expert, in full knowledge the tribunal will make their own minds up about whether additional information should be disclosed at this stage and relevant medical experts & reports?

 

DJ

[fifimcr]

really sorry to hear that you have to undergo al this, i just landed myself in similar position but i ma contractor

[dj1971]

Thanks Fifimcr,

 

Appreciate your support.

 

Is unfortunate that things have gone so far, however I am determined to speak up and have my case heard. No amount of bullying, intimidation and other dirty tricks will deter me.

 

I personally know of at least 2 others suffered as I have at the hands of the same manager, but went down the redeployment route. Personally I could not in good conscious just allow them to sweep this managers behaviour under the carpet by allowing them to transfer me and still have to see him everyday.

 

Is high time someone stood up to this bully and took appropriate action and that someone happens to be me.

 

Of course I could not do this without the fantastic support and guidance from fellow caggers on here.

 

DJ

 

Win or lose at least I can walk away with my head held high in the knowledge I did everything I could and told the truth, the outcome is out of my hands.

[dj1971]

OK,

 

I am getting far too stressed out about the solicitor for respondents request for submission of further information by COB today.

 

There is no way it could be considered reasonable to provide requested additional information within 24hours. So I am not going to submit any response to the solicitor, take a copy of their draft agenda and deal with each point at the CMD tomorrow.

 

I suspect that this is part of the solicitors intention, get me stressed out and all worked up about the last minute request for additional information.

 

What will be tomorrow will be.

DJ

[lbruk]

They will play this game a lot, they will leave things to the last minute and put the pressure on you to provide things they could have asked for weeks/days ago. Remember that the only timelines you HAVE to stick to are from the tribunal.

 

If they start to ask questions on the eve of one of those dates, ask the tribunal for a date extension to supply the information requested and just supply what you have by the date stated by the tribunal.

 

Another tactic is leaving requests to the end of the day - normally at 5pm on a Friday, so that you cant confirm anything until Monday morning, and therefore have you worrying all weekend about it. It's a poor tactic and unfortunately effective unless you want to play the game back. I was lucky in my case as I had a lot of fun doing the same things to the respondents solicitor and getting him all tied up in knots by requesting information of him, correcting spelling and punctuation of his letters to me, complaining that he was spelling my name and address wrong etc etc

[dj1971]

Thanks for the forewarning Ibruk,

 

This decision was definitely the right one for me.

 

I have printed off their draft agenda and on the copies for myself and my support person, written my answers to their questions. Really was not so bad at all once I had removed the time pressure. So now I have my answers pre prepared should the judge ask any questions about these.

 

Was feeling a bit out of my depth and overwhelmed by it all yesterday afternoon. Not to the point I was thinking of dropping out or anything like that, just the enormity of it all hit me and I panicked over the respondents' solicitors' deadline.

 

Is really useful to know I do not have to meet their deadlines on anything.

 

CMD is at 3pm this afternoon, will update the forum on what happened later this evening.

 

DJ

[honeybee13]

Fingers crossed for later, I look forward to hearing how it went.

 

My best, HB

[lbruk]

Good Luck - The CMD was not as bad as i feared when i took part in mine.

[dmlferguson]

How did you get on???

[dj1971]

It actually went very well all in all.

 

Had a very sympathetic and helpful judge which made it so much better, but by no means a walk in the park.

 

Lasted 2 1/2 hours and the upshot is:

 

1) Judge made an order that I clarify exactly what I am claiming for, in particular how the harassment claim is linked to a protected characteristic, in this case disability. Judge spent a long time trying to help me clarify and said something about what is the PCP, in the end just could not get it so she ordered I go away and clarify my claim within two weeks.

 

2) I agreed to grant consent for respondent to have access to my medical records and respondent to inform myself and ET within 2 weeks of receiving medical records whether disability is still in issue and if so on what grounds.

 

3) If disability is still in issue, respondent to supply names of 3 consultant psychiatrists, we agree questions to be answered by medical expert and then s/he writes a report. PHR has been listed for January 2013. Bundles for PHR to be exchanged not less than 28 days prior to PHR date.

 

4) Full hearing listed for 6 days at end of April 2013.

 

Will receive a copy of the written order within the next few days.

 

Quite an ordeal to go through, though as I have said made so much easier by a sympathetic judge.

 

DJ

[honeybee13]

Hello again.

 

Well done for getting through it and emerging in one piece. I'm not an expert, as you know, but it sounds not too bad to me. I'm sure the guys will be along soon.

 

My best, HB

[dj1971]

Ok,

 

Feeling a lot clearer about what happened today now.

 

My claim is for:

 

1) Constructive dismissal

2) Disability discrimination on grounds of failure to provide reasonable adjustments.

3) Harassment.

 

What is the PCP applied by the respondent which put me at a disadvantage as a disabled person.

 

My response was that the respondent did not carry out a risk assessment when I returned from the 6th period of sick leave being 1month in length. I was put at a disadvantage as a disabled person because not carrying out a risk assessment meant reasonable adjustments could not be identified. Therefor the reasonable adjustment would have been to carry out a risk assessment.

 

However the judge stated that this was a circular argument.

 

Not sure exactly what she meant, but has ordered that I go away and identify what was the PCP that put me at a disadvantaged.

 

I am at a loss. Any suggestions welcome.

 

DJ

[Pusillanimous]

Ok,

 

 

What is the PCP applied by the respondent which put me at a disadvantage as a disabled person.

 

My response was that the respondent did not carry out a risk assessment when I returned from the 6th period of sick leave being 1month in length. I was put at a disadvantage as a disabled person because not carrying out a risk assessment meant reasonable adjustments could not be identified. Therefor the reasonable adjustment would have been to carry out a risk assessment.

 

However the judge stated that this was a circular argument.

 

Not sure exactly what she meant, but has ordered that I go away and identify what was the PCP that put me at a disadvantaged.

 

I am at a loss. Any suggestions welcome.

 

DJ

 

Having read your draft witness statement, it would appear to be lack of any acknowledgement of your anxiety condition. They have a PCP of grading personnel during appraisal. You scored 3 (?) and when you asked how you could get it up to 4 their response was that it was their policy to score everybody 3. This caused you undue stress. A reasonable adjustment would have been to provide you with the guidelines you asked for.

 

Likewise, encouragement, when you asked for it.

 

I would recommned citing both direct disability discrimination (lack of RA) and indirect, in the alternative, that you as a member of the a particular psychiatric (?) group were at a disadvantage to those not in this group. For example, the longer term staff were happy with their 3 grade, whereas it caused you as someone with an anxiety condition, mental anguish.

 

You need to spell out what date you told your employer all of this (with evidence) and all your symptoms when they failed to respond to your reasonable requests. Give dates and times of these and the outcome.

 

The problem with the risk assessment agument is that at the hearing the respondent will simply state they did one in their head, or because of their inherent expert knowledge of these things.

 

My advice is not to bother getting involved in correspondnece or argument with the other party's solcitors as you will see them in court. Save your energy.

Edited September 15, 2012 by Pusillanimous

[Pusillanimous]

The EJ wants concrete examples of reasonable adjustments, rather than abstract ones, so what you could do is go through your ET1 and witness statment line by line and identify reasonable adjustments that could have been made to your particualr scenario. For example, you mention in a few places that the management could have benefitted in training in how to deal with vulnerable staff. Mention that as an RA, citing actual training course in existence in your area that would have been available at the time, together with brochure samples and price lists, etc. If no courses exist per se, look up expert advisers in your area who could have come along to visit (e.g., Mind or work-related advisers in mental health). The Occ H. people should have advised. Etc., etc.,

[becky2585]

Circular argument means just that, you're going round in circles - like a chicken and the egg scenario.

 

A PCP can be hard to identify, but your suggestion isn't rally capable of being a PCP. It has to be some kind of requirement, policy, or standard practice at your employer which put people sharing your characteristic at a substantial disadvantage.

[dj1971]

Thanks everyone,

 

I am finding it tough to identify a PCP, though have come up with this, just not sure if it fits:

 

My line manager did not give praise when a piece of work is done well.

This disadvantaged me because lack of praise caused me substantial mental anguish

The reasonable adjustment would have been regular feedback on performance

 

DJ

[Emmzzi]

I think as arguments go that is a good structure but in terms of content it's very weak. There's no legal right to praise. It's not really a RA. What was the worst thing yoour manager did, I am sure you have more examples!

[dj1971]

It is in the respondents employee performance policy:

 

"In managing the performance of employees, managers are responsible for (i) encouraging employees to achieve their objectives (ii) providing honest, constructive and timely feedback and direction on performance"

 

Though won't use it if you think it is weak.

 

The worst thing he did was bully and harass me in full knowledge I have a mental health condition and the effect that would have on me.

 

I have just thought of another PCP, again not sure:

 

Pcp is my managers style of management

Which put me at a distinct advantage due to my mental health condition (I was extra sensitive)

Reasonable adjustment would have been training course for manager on how to manage someone with a mental health condition.

 

As always feedback/suggestions welcome

DJ

[Emmzzi]

Style of management needs to be spelled out with examples. Assume the judge knows nothing and start from there.

 

"Managers style was overly agressive eg swearing at me in front of other staff when I made minor errors (see incident log attached)"

 

when aware of my mental health condition as advised to him by occ health report on date xxx (see document x)

 

A RA would have been to give calm and private feedback. Training courses were available locally from (mental health trust) on my condition (give example)

 

So much more specific if you can?

[dj1971]

Thanks so much Emmzzi,

 

Managers style was excessively critical, picking up on every single little error and never giving positive feedback when a task was completed well. For example I reduced the balance owed which had been outstanding since Feb 08 of xxxxx from £150,000 to £0 in just three months, however my manager did not give any positive feedback on my achievement. He also spoke to me in an aggressive tone of voice and was argumentative at times when all I was doing was trying to understand and or clarify some instruction he had given Eg. on 24th May I had set up a meeting with an external supplier to try and resolve an ongoing issue. However my manager objected to this and stated he would not be having any meeting with that company. When I asked for clarification he raised his voice and became argumentative with me, asking that I justify my reasons for having a meeting with the external supplier.

 

Reasonable adjustment would have been a training course for my line manager on "Managing people at work who are stressed, anxious or depressed" available from the mental health charity Mind, who also provide a range of other tools including advice on managing employees who have a mental health condition, including policy reviews, consultancy, coaching for managers & stress audits.

 

Is this better?

DJ

[Emmzzi]

I think so, it is a lot clearer and explains the shortcoming better. If there is a list of incidents I think it is ok to reference the relevant ones instead of writing them out again. You could also add in any suggestions you had made about adjustments. I am assuming somewhere earlier there is an explanation of how they would have known about your condition.

[dj1971]

Emmzzi,

 

You can't imagine what a weight off my mind this is. Was really worried about it, so heart felt thank you.

 

Yes there is a list of incidents and what the judge has ordered me to do is clarify the incidents in more detail and indicate which part of my claim they are relating to ie constructive unfair dismissal, disability discrimination through not providing RA's or Harassment. Then of course identify the PCP and how it disadvantaged me.

 

Yes, I told my manager within 2 months of starting my employment there although they claim I did not tell him until 9 months after starting. Either way they have admitted they knew.

 

I had made suggestion of training for manager and providing a mentor as RA's.

 

Also have to write a disability statement and provide everything within 2 weeks, so going to be a busy chappie.

 

DJ