Constructive dismissal? - ** SETTLED **

[becky2585]

Yes, remove "without Prejudice" but don't put you "reserve the right to amend" as EJ's really dislike that phrase, and the EAT specifically prohibit it.

 

You will have the opportunity to update the schedule of loss nearer to the date of the hearing. Then, if your claim is upheld, you may be able to update it again. Make sure it is true, accurate and complete.

 

It's actually standard practice to reserve the right to amend a schedule of loss. How else would this be accurate on the day of the hearing otherwise, eg. If a claimant receives another job?

[dj1971]

Thanks everyone for your feedback and support.

 

I have completed a first draft of the clarification of my claim as ordered by the court at the CMD last Friday. It is 19 pages long, so I do not expect anyone to read the entire document. I would however really appreciate some feedback on the general layout and whether I have included everything in my claim.

 

Of course names have been changed to prevent people being identified.

 

Many thanks

DJ

[becky2585]

I'll be honest, I don't fancy your chances with the race discrimination claim! But it's good you've made it clear which statutes you are claiming under.

[dj1971]

Thanks Becky,

 

Appreciate your honesty. Care to elaborate?

 

DJ

[becky2585]

Thanks Becky,

 

Appreciate your honesty. Care to elaborate?

 

DJ

 

Well, it's a one off incident which you weren't actually technically a party to. You'd have to show you've been treated less favourably because of your race or national origin - I just don't see that that's the case there.

 

Just a gut feeling, but I don't think the ET will buy it. The danger of spurious claims is that they can undermine the stronger ones.

 

At best, it's more racial harassment - but even that is probably unlikely to succeed, as generally a one off incident isn't capable of amounting to harassment.

[dj1971]

Thanks Becky,

 

I agree is more racial harassment having investigated:

 

 

A person harasses another on grounds of race or ethnic or national origins when he or she engages in unwanted conduct that has the purpose or effect of:

 

violating that other persons dignity; or

creating an intimidating or hostile, degrading, humiliating or offensive environment for them.

 

Based on your analysis I think I will entitle it under "Unfair constructive dismissal and breach of the implied term of mutual trust and confidence" which I was also asked to clarify.

 

DJ

[Pusillanimous]

Thanks everyone for your feedback and support.

 

I have completed a first draft of the clarification of my claim as ordered by the court at the CMD last Friday. It is 19 pages long, so I do not expect anyone to read the entire document. I would however really appreciate some feedback on the general layout and whether I have included everything in my claim.

 

Of course names have been changed to prevent people being identified.

 

Many thanks

DJ

 

It is fine up to page 2. After this, it reads more like a witness statement. I would take out all the he said, she saids. You will need to be really disciplined. Set out a list of questions, for example Header: Constructive Dismissal, (1) what section of the law was breached? (2) on what date (3) by whom (4) who was a witness? This will help focus your pleading (you don't need to leave the questions in).

 

Re Race Discrimination: you would need to stipulate what racial group you are. Did you broach issues of race while you were employed? Was it in your ET1? If not, it is likely to be struck out.

 

Be careful you don't create a yoke for your back. You are claiming your treatment is because you are disabled. If you bring in race, the question then arises, so it was not becuase of your disablilty after all, but because of your race? It will be almost impossible to prove it was because you were of your particular disability AND race combined.

 

I would edit your document as soon as possible and remove the ficitous names you have applied to your colleagues. Whilst it is very amusing to see this type of designation in Bunyan's Pilgrim's Progress or The Ragged Trousered Philanthropists, where the characters have names such as Crass and Hunter, it would not go down well in a sober court of law, should your employers chance upon it.

Edited September 18, 2012 by Pusillanimous

[dj1971]

Ok thanks Pusallinamious,

 

Can someone please remove the document from my thread, as I have tried but does not seem to work.

 

I am confused. The EJ did ask me to clarify my claim, giving an example from one particular event on my ET1 where I had alleged my manager had lied about something. She pointed out that she had absolutely no idea what I was referring to and therefore I needed to clarify exactly what I was claiming, what happened, who was there, etc...

 

However now you seem to be saying I have given too much information.

 

Think I might wait until I receive the written order before going any further with this.

DJ

[Pusillanimous]

Wasn't meaning to dishearten you, DJ, the pleadings are separte from your witness statement. All the EJ wants is a framework of what you are complaining about and how it fits into her jurisdiction. It's a bit like a CV (resumé)- keep it as short as possible. On the day of the interview (hearing) this is when you can hold forth.

 

Bear in mind, the EJ - like the prospective employer - sees dozens of claims every day. Unfortunately, it is true of human nature to only really look at the first page (don't you think this is true?) - so this is what you need to aim for: one or two pages at the most summarising the skeleton of your claim (perhaps a dozen).

 

What you don't want is the EJ's eyes glazing over and failing to spot a really important point on page umpty-nine.

[dj1971]

I know Pusillanimous,

 

You have been a great support to me thus far and I really appreciate all your help. Was just getting a bit frustrated is all.

 

I have chopped it down to 9 pages now, so I guess we can call this draft no. 2

 

Also took on board your suggestions about the names.

 

Hope this now makes sense.

 

DJ

[dj1971]

I have this morning received a written copy of the court order and have read it realised I had left something out of the clarification document to which I have also made a few changes. Down to 7 pages in total, which I hope is more acceptable, but more importantly covers everything.

 

Have also attached draft disability statement which I am fairly sure is finished now anyway.

 

Appreciate any feedback/comments from fellow caggers.

 

DJ

[dj1971]

No comments at all?

 

Ok, A question for the legal experts.

 

I was lead to believe that an employment tribunal cannot award damages for psychiatric injury.

 

However, at the CMD last Friday the EJ asked if I had any other claims in relation to this matter and I told her I had been investigating a PI claim in the county court. The EJ said that if my claim was successful I would be awarded an element for injury to health as well as injury to feelings.

 

Which is true?

 

DJ

[Pusillanimous]

I have this morning received a written copy of the court order and have read it realised I had left something out of the clarification document to which I have also made a few changes. Down to 7 pages in total, which I hope is more acceptable, but more importantly covers everything.

 

DJ

 

Much more readable, in terms of an overview of what your case is about. A couple of things.

 

1) You stipulate "Harassment". However, harassment is legally defined (although there is no one formal definition) as more than one act (however, it can be just the one), i.e, "a course of action" that the perpetrator/s know/s, or ought to know, is unwanted and causes distress to the subject.

 

You need to briefly list whcih courses of actions constituted the harassment, linked to your disability.

 

2) Check your chronology. You have victimsiation coming before the harassment. Should it not be "harassment", "grievance" "victimsiation" as the logical sequence? In other words, unlawful discrimination in the workplace has an element of harassment to it (for it to constitute "behaviour" giving rise to a complaint). If it were not harassment it would cease on complaint. Victimisation is then the escalation of the discrimiantion (harassment) because you complained.

 

3) The direct race discrimination claim. Did you complain about it at the time? Is it in the ET1? This type of thing is so shocking, you can argue that you omitted it initially becaus the trauma of it took a while to sink in. You start there were several witnesses. However, you might find when you ask for their witness statement they will "not remember that".

 

If you have no evidence in the form of a witness statement, or written record at the time, it is a bit "iffy". If you do have a relaible witness in this, then you should include it.

 

Hope this helps.

[Pusillanimous]

 

I was lead to believe that an employment tribunal cannot award damages for psychiatric injury.

 

However, at the CMD last Friday the EJ asked if I had any other claims in relation to this matter and I told her I had been investigating a PI claim in the county court. The EJ said that if my claim was successful I would be awarded an element for injury to health as well as injury to feelings.

 

Which is true?

 

DJ

 

WE are told that any work-related injury or illness should be taken before an Employment Tribunal, as its natural home (research the Ministry of Justice judgments database and there is case law that sets this out). Yet I know of several people who took work-related personal injury to the High Court. How so?

[dj1971]

Thanks Pusillanimous,

 

Point taken, I guess the events I had labeled as "victimisation" need firstly to have been harassment?

 

The direct race discrimination claim I did not complain about at the time and yes it is in the ET1. In fact EJ made specific reference to it at the CMD. She said something like I note this incident happened and there is no claim for race discrimination, but I did not pick up on it at the time.

 

I had considered adding it to my formal grievance that I submitted 3 days later but decided against that because it was a 1 off incident and a bit obscure in relation to the rest of my grievance, so I decided to leave it out.

 

So an ET can award damages for injury to health?

 

I have read during my research and been advised here that they cannot and that is why I was enquiring into a separate PI claim.

 

DJ

[Pusillanimous]

Thanks Pusillanimous,

 

Point taken, I guess the events I had labeled as "victimisation" need firstly to have been harassment?

 

DJ

 

Victimisation is a legal term that refers to actions against you because you have issued a grievance or brought proceedings.

 

If the EJ picked up on the race incident, it is a good idea to include it. It need not be a "complaint" per se, but evidentiary, if not strong enough to be a case. Then it will be a case of whose version the EJ prefers to believe if it is your word agaisnt theirs.

 

You must state what race description you are. This is mandatory. It is important to get this right. I saw a news report in the Irish Press about some post going to a fellow catholic/prostestant acquaintance of the CEO, so you could research how the claimant - who won - was self-classifed, in such cases.

[dj1971]

Personally,

 

I would class myself as Irish national.

 

Have reread my old posts and Becky actually clarified the point re ET and injury to health.

 

If the tribunal can link the injury to a disability, an element of compensation can be awarded by the EJ for injury to health. Or at least that is what I understand.

 

DJ

[becky2585]

Personally,

 

I would class myself as Irish national.

 

Have reread my old posts and Becky actually clarified the point re ET and injury to health.

 

If the tribunal can link the injury to a disability, an element of compensation can be awarded by the EJ for injury to health. Or at least that is what I understand.

 

DJ

 

Injury to health falls under injury to feelings, unless negligence caused a diagnosed condition.

 

So stress falls under injury to feelings, really... But a diagnosis of a resulting psychotic episode, if caused by your employer, is a separate county court claim for personal injury.

[dj1971]

Now even more confused than I was before.

 

What does all that mean in plain English please?

 

DJ

[dj1971]

Becky,

 

Is not something I would normally do, but I have sent you a pm about a private matter.

 

DJ

[Pusillanimous]

Injury to health falls under injury to feelings, unless negligence caused a diagnosed condition.

 

So stress falls under injury to feelings, really... But a diagnosis of a resulting psychotic episode, if caused by your employer, is a separate county court claim for personal injury.

 

 

I think I understand this now. Stress = injury to feelings. If you have a nervous breakdown which is substantial you can go to county court. That fits. Would the Mental Health Act have to come into it? (Sectioned?)

[dj1971]

I have just thought of something.

 

I am claiming my former manager bullied and harassed me and of course he denies it.

 

We were all monitored by cctv cameras 24/7 in particular our work stations.

 

Am I entitled under a subject access request to obtain copies of the cctv tapes of particular dates?

 

DJ

[Pusillanimous]

I wouldn't waste energy. If you want to see reams and reams of footage they will claim "fishing expedition" (frowned on), or, if you have a specific incident in mind, time, date, they will almost certainly claim it is not available for whatever reason. Anything that incriminates them will be withheld, or edited!

 

No harm in applying, though. You can download the form from ICO webpage.

[dj1971]

Thanks Pusillanimous,

 

Think I will ask and see what happens.

 

In terms of the medical records consent, are they entitled to ask for all of my medical records, or only those from the period I was employed by the respondent?

 

DJ

[Pusillanimous]

There is an argument, especially in mental illnesses, that they need to see all as it may be relevant as to what has caused it.

 

You should inform your GP you want to see it first, so that you can veto anything that is not relevant, for example your ingrowing toenail or that operation you had for piles.