Am I missing something? Discrimination case

[Willow1990]

Hi All,

I would be really grateful if you could give me a basic opinion on a case that I have currently got going ahead for maternity discrimination and unfair dismissal. The respondent has not offered me a penny in way of a settlement but appears to be so laid back with this case, I really cannot fathom their actions!

I will try to give you a brief overview:

I was made redundant via a letter 2 days before Christmas, 6 months into my maternity leave, without any prior warning, The reason given was that my job had become 'surplus to requirements'. I was not given a right to appeal. I know it wasn't a genuine redundancy because the person who was performing my role during maternity leave had been taken on in a permanent position and was not made redundant, along with several other members of staff performing the same role (some of which had started after myself).

Prior to this I had placed a flexible working request. This had been handled horrifically with myself having to chase their response more than 10 times, getting ignored on several occasions, attending two meeting and still I did not receive an answer. No answer was given to my request, when I received my letter of termination it had been more than 3 months since I placed my request.

I raised a grievance straight away and asked how they had come to make their decision and how I had been chosen specifically. The only reason given was due to sales within the company, there was no explanation as to why I had been chosen over others. Again I was not given a right to appeal.

I contacted ACAS and began early conciliation, at this point they told the ACAS conciliator that I had not appealed, and my conciliator advised me to for fear it may jeopardise any compensation I may earn in court if I did not. I explained that by this point I could not return to work for a lack of trust and now feeling uncomfortable, but he advised me to appeal anyway.

I appealed and made it clear I only sought an agreement in the form of compensation, suddenly on the back of this appeal I got offered my job back due to a 'change in circumstances.' I later turned this down and continued with my claim after being advised to by solicitors.

After completing my claim, I received threatening letters from the respondent's solicitor saying that I had been reinstated following on from my appeal, and therefore my dismissal never technically happened and therefore I had no claim for unfair dismissal. They also threatened to make a cost order if I didn't withdraw right away. I was shocked by this as I had been offered my job back not told of a reinstatement, I never gave consent, and I had not been paid any money owed to me and therefore suspect I was never actually reinstated. I stuck to my guns and continued with my claim, after all it is for discrimination and a failure to handle a flexible working request in a reasonable time frame as well as unfair dismissal.

A few weeks before the preliminary hearing the respondent requested that the court strike my claim out on the basis that I had been reinstated and that my dismissal had vanished. I applied for an appeal if necessary to change my dismissal from unfair dismissal to constructive unfair dismissal if it is deemed that the dismissal had vanished because I had been reinstated (arguable as that is). The judge declined their order and said that regardless of how I was dismissed my claim for unfair dismissal would stand. He almost laughed in their face at the prospect of a cost order being made against me, and said that their defence regarding the reinstatement was weak anyway considering I had never been given a contract, they had not made the reinstatement explicit to me and I had not been paid.

I was also shocked that the respondent has only got one witness. I assume that this is the chief executive (the person I believe was pulling the strings), however the majority of my case, meetings, correspondence etc is between myself and two managers who have not been called as witnesses. How can they defend something if they do not have a witness to defend it?

We disclosed documents this week and I was surprised to see that the respondent's list of documents was smaller than my own, it only contains letters that have been sent from either of us, and lacks emails between myself and my managers that I obviously have. I requested any documentation to be provided regarding their decision to hire my maternity cover on a permanent basis, the decision to make me redundant, how the restructuring affected the company, the handling of my flexible working request, the meetings regarding my request, the handling of my appeal and the decision to reinstate my employment. Obviously this would be emails, documents, meeting notes etc. I also asked for evidence that I had been reinstated in the company.

I have been told that they do not have any such documents. NOTHING. Am I missing something? Does this not just say 'guilty'? Why are they still proceeding with this case? I don't understand how they can have no documentation throughout all of this. Therefore they must have something to hide. And how can they possibly prove themselves in court with no evidence?

What do you think guys?

Also what happens now that I have been told that they do not have any of the documents I have requested? Do I ask them to use the email regarding this as part of the bundle of evidence so that the tribunal can see that they claim they do not have any documentation? Or do I ask the tribunal for an order regardless?

I am in a right mind to make a cost order myself. I am representing myself but understand you can make time orders. I am new mother, who suffers from depression and all the time and energy spent on this case seems to be such a waste of time. It seems apparent to me that they should be offering a settlement. Should I make a cost order?

Sorry for the life story!

[ULA]

Costs orders are relatively rare in employment tribunal proceedings and are the exception rather than the norm. However, there is nothing to say that you cannot prepare a costs schedule for the reasonable time you have taken to prepare your case. I would suggest that you prepare a spreadsheet that details your time with dates etc and the current hourly rate you can claim is I believe £38.

I suggest that as the first course of action you do ask the company to add to the bundle your email to them detailing the list of documents you are requiring to be provided together with their response detailing that they do not have such documents. I do agree that if they have conducted the process fairly these internal documents should have been part of either your personnel file or notes of company meetings as part of decisions made in the redundancy process.

If they disagree then you can create your own bundle with all your documentation which would include this email. ET’s don’t like tow bundles because it can make following the evidence difficult, but in this instance, it proves an important point in your case. You would need to ensure you create enough copies of the bundle (usually 6) if you do go down this route.

Alternatively, if you believe that the documents are in existence but the company are “being difficult” you can write a letter to the tribunal with a copy of the original request and ask for an Order. The letter to the tribunal must briefly state why the requested information and documents are relevant to the case. This explanation can be fairly general if the requests are uncontroversial and obviously relevant. A copy of this letter would need to be sent to the company.

[Willow1990]

Thank you Admin,

I have messaged the respondent asking them to include the correspondence in the bundle and they have emailed back rather sarcastically saying they would not be including it in their bundle as it is not relevant! Shall I contact the tribunal office to see if it is worth requesting an order, or if they advice me bringing it along myself? I'm really irate about this, how is it not relevant to the case?!

Thank you

[ULA]

I would agree that you should speak with the Tribunal office or even with ACAS in regard to the best way to proceed with this. My view is that this evidence should be included in the bundle since it highlights the apparent lack of process your company went through in making their decisions and this should support your case.

[mariefab]

A few tips.

Make sure to highlight in your witness statement that:
While on maternity leave you received a letter informing you that you that you had been made redundant on 23/12/17.
Before that date you had not been informed:
1. There was a problem regarding sales within the Company.
2. A restructure was planned.
3. Redundancies were possible.
4. The criteria which would be used to decide which roles would be selected for redundancy.
5. That your role specifically was at risk of redundancy.
6. What, if any, alternatives to redundancy were considered.
7. That the person who was performing your role temporarily while you were on maternity leave had been taken on in a permanent position.

The grievance that you raised after your dismissal could have been a (mislabelled) appeal.
The Company's response appears to be that your dismissal was due to sales (lack of?) within the Company.
Check what they wrote to see if there's anything at all that appears to confirm your dismissal at that point.
It could be something about the date that you'll receive your final pay, when your notice period will expire, etc.

You only put the second appeal in because ACAS informed you that it may be held against you if you didn't do so (and because you hadn't called the grievance an appeal).
However, what you presented was an attempt to settle your potential claim rather than an appeal against your dismissal.
Your employer offered you your job back siting only a "change in circumstances" giving no indication of what had changed.
As far as you are aware the only change in circumstances was that, by indicating that you would be prepared to accept compensation, you had made them aware that they were facing a potential claim.

The fact that the Judge refused to accept (albeit at a preliminary stage) their claim to have reinstated you suggests that he may have had something like this in mind.
So, if the documents that you have can be interpreted in the above manner this is the way you should present it in your witness statement and at the Tribunal hearing.

I think that it's possible that their defence to your claim is going to remain that you were reinstated and that there is therefore no dismissal. It's the only reason I can think of for them continuing the case and for their statement that the documents that you asked to include in the bundle aren't relevant.
Something to bear in mind is that as you were 6 months into your maternity leave in December surely (if as they say you remain in their employment) they should be expecting you to return to work soon. Wait quietly and see what, if any, action they take when you don't return at the end of your maternity leave.
If they fail to take any action do not mention this in your witness statement unless you write it some time after the date that you would have returned.
Definitely raise it at the Tribunal hearing.

How you present your case is important. How your former employer presents theirs is their problem.
They have informed you, in writing, that they have no documentation whatsoever showing how they went about dismissing you by reason of redundancy!
That is an astounding confession.
You should make at least 5 copies of your request for the information and their response. At the start of the Tribunal hearing hand 1 to the Respondent and 3 to the Tribunal panel stating that the Respondent refused to include them in the bundle.
(Trying to get this included in their bundle might alert them to their potential danger and inspire them to claim that they misunderstood your earlier request for documents about your redundancy and to set about creating some.)

One other thing. Have you specified on your ET1 that one of your claims is that your employer failed to comply with your flexible working request?
If not, leave anything to do with that out of your statement and don't refer to it at the hearing.

P.S. Am I correct to assume that you hadn't worked there long enough to qualify for a redundancy payment?