Tribunal hearing on Monday

[sangie5952]

It is far too late to provide any effective advice for a hearing on Monday (and I'm mystified as to why a preliminary hearing was held one working day before the hearing), especially since I can't see any case here. You say yourself that you have no evidence of your claims, and I'm afraid that if you resigned without exhausting the grievance procedure, then your chances of winning unfair dismissal or anything else are exceptionally low.

 

You appear to not understand that a doctor cannot tell an employer that they are not allowed to use their capability process- if your employer says that you are not performing, then that had nothing to do with the doctor, and nor, regrettably, does the tribunal care about it either. The employer is deemed to have the right to manage, and it is their judgement that the law assumes. So if the employer says that you were not performing, then unless you can show substantial evidence to the contrary, that judgement is accepted by the tribunal.

 

I'll be brutally honest - based on what you have said here, I'm not seeing any grounds for a tribunal. Your complaint appears to be that your employer managed you in a way that you did not agree with. You had no right to work from home - what others do is irrelevant (and contractors are not employees anyway, so they are not a comparator). Contrary to the myth, salary differences are neither uncommon nor illegal. Nor is it unusual or illegal to refuse payrises to people in capability processes.

 

So the case that you have laid out here is that your employer managed you in a way that you did not like but was entirely lawful; and that you claim they were discriminating but you have no evidence of that. I'm really sorry, but I'm going to have to say that if that is the extent of what you have, the employers lawyer is going to make mincemeat out of you. And that worries me immensely because you do not appear to come across as resilient enough to withstand that. And if that is the extent of what you have, you may also find that the employer goes after you for costs.

 

Whilst I think I understand your imperative is to have your day in court, that is not something that is without severe risk to you. It is not too late to withdraw. Unless you have something better than you have stated here, I'd have to advise you that it is not too late to go along on Monday and withdraw your case.

[sangie5952]

The OP has a tribunal on Monday and no evidence. So simply claiming other staff are comparators won't work. The other staff, I'm relatively certain, won't have had two performance /capability processes. So simples - the employer allows flexibility, pay rises, etc etc when staff can be trusted to perform. You have no evidence that isn't the case - and the employer has loads of evidence it is!

 

We also don't even know if the other staff are comparators. There is no evidence here to say they are - a comparator is more than "Someone else they employ," - there are tests for comparators, and the OP must prove they are comparators.

 

Remember, the OP resigned. Every bit of their case is for them to prove. And they have no evidence. That's what I have to come back to, because it's what the OP had said. They must prove discrimination and constructive unfair dismissal with no evidence. Opinion isn't enough. So yes, it is possible that a costs order could be applied for. Especially since these days very few employers actually have insurance - that used to be the case decades ago, but these days it's too expensive for most employers.

[sangie5952]

Ps. sorry I got interrupted and lost my train of thought. But an example of what concerns me here is the OPs comment about the email and the managers witness statement. They obviously think this demonstrates something about the employer. I'm afraid that, to me, it doesn't. I would agree that in many employments that one liner would raise eyebrows and be considered quite inappropriate. The managers response is quite normal. Nevertheless the manager arranged a meeting. Job done. Nothing untoward here - except the OP seems to think this is a denial of promotion. Asking for a promotion and applying for a promotion are two very different things - refusing an asked for promotion isn't going to evidence anything other than, in the managers view, this employee, who isn't performing well, has not really grasped realities. Not giving someone what they ask for isn't evidence of discrimination. It needs more. A lot more.

 

My concern here is not that the OP loses. That won't be good for them, but it isn't good for anyone. My worry is that the OP has had, for whatever reason, an objectively bad period of mental ill health and does not appear to be over that period. The "I HAVE TO" worries me immensely. Courts of law are not places to settle scores, and they don't dole out justice. Even if the OP is right about everything, without evidence they have nothing and cannot win. But they can't simply walk in and make a whole load of unsubstantiated allegations. Losing isn't the worst thing that can happen. Being ripped to shreds when already vulnerable is. That's my concern.

 

At this stage they will do what they will do. I hope I'm wrong and they can withstand this. But tribunals aren't easy.

 

It's too late for now. But learn the lesson. Join a union. Don't stand alone in the future. Even if the news isn't what you want to hear and your interpretation of events isn't right, at least you have an impartial view that's impartial but on your side, and is bothered enough to tell you the truth, even if it's unpalatable.

[sangie5952]

You believe incorrectly. In the first place, warnings are often not overt- there is some evidence here that you may not have heard things in the way they might have been meant. But also, they could apply for them in the tribunal. I do agree that they are unusual - although happening more than it used to - but that is not even the biggest risk here. You have no evidence. You said this. Why are you going to a tribunal with no evidence of your allegations? And have you told your new employer that you are at a tribunal? Hopefully so. Because there's every chance they'll find out.

 

This is not about what is true. Truth and justice are for Superman movies. Neither happen in a court of law! Or not remotely as often as people think. I simply want you to understand what you are looking for isn't there - but there are things you definitely aren't looking for that might be. If that is a risk you are happy to take, then fair enough. But do be sure that you understand that this is not risk free.