EMPLOYMENT TRIBUNAL- opening and closing subs and cross exam

[psychojuice]

Hi There,

I am taking my employer to a tribunal for race discrimination. I previously had representation, but it stopped when my insurer pulled out citing that my prospects had fallen below 51%.

Anyway, I am now going to represent myself and the only things I need help with are my opening and closing submissions and my cross examination questions.

The case management order states the following:

The case management order states the following:

1. Has the Respondent subjected the Claimant to the following treatment falling within section 39 Equality Act, namely:

a. scoring the Claimant low overall for the job?

b. scoring the Claimant 2 out of 10 for communication skills?

2. Has the Respondent treated the Claimant as alleged less favourably than it treated those candidates who do not share the Claimant’s protected characteristic (colour and/or ethnic origin) or would have treated such candidates?

3. If so, has the Claimant proved primary facts from which the Tribunal could properly and fairly infer that the difference in treatment was because of the Claimant’s colour or ethnic origin? The Claimant will invite the Tribunal to draw inferences from:

a. The scores awarded to him in comparison to the scores awarded to others of different colour/ethnic origins;

b. The way in which the Respondent dealt with his requests for further information and copies of documents and the lack of explanation provided

c. The feedback provided by Ms Taylor which the Claimant’s says was untruthful

4. If so, what is the respondent’s explanation? Does it prove a nondiscriminatory reason for any proven treatment?

Could anyone advise me as to what I would need to put in my opening and closing submissions? What sort of questions would I need to ask during cross examination, in order to prove my case? I know it may seem obvious to some, but I guess I am just very unsure about this, as I have never done this before. Any positive input would be greatly appreciated!

Thank you x

p.s. I have found in the past that some people get a little "funny" when asking for help with race discrimination issues. Hence, I am not looking to analyse my case or debate the merits.

[psychojuice]

bump!

[davenewbergr]

Hi There,

Could anyone advise me as to what I would need to put in my opening and closing submissions? What sort of questions would I need to ask during cross examination?

Dude, this is just impossible. If you don't know what questions to ask, there's no way that anyone can help you with that without knowing your case in full and the employer's defence in full. If you don't know what questions to ask, you should seriously consider pulling out. I'm not an employment expert and as I understand it the Tribunal doesn't normally make costs orders, but I'm under the impression that it can make costs orders against parties whose behaviour was unreasonable. If your insurer thinks your chances are below 51% and you don't know what questions to ask, you should be wondering whether you might not be better off calling a halt.

If and only if you feel inclined to consider that, contact the employer's representative and ask if they will agree a 'drop-hands settlement'. That means: all stop, nobody pays anything.

[ULA]

Firstly, I would just like to say that if your insurer has reconsidered your prospects of success and now has them at 51% you really should consider the strength of your case. Have they given you any information as to what has led them to this decision and was it the result of seeing some documentation from the other side which has made a material difference to your chances of success?

Who made the application for the Case Management Order?

Has your representation spoken to you about costs? Unlike the courts, you don't automatically have to pay your employer’s legal costs if you lose the case. However, there are a few situations where there is a risk that you might have to pay costs. For example, this might be if you brought a hopeless case that had no chance of success, or you behaved very badly in the way the case was run or you turned down a good offer to settle. So again, you need to consider this in light of what your insurer has now determined the success rate of your case is.

Was ACAS involved in the early stages in terms of trying to get you and the other side to agree a settlement? It may be worth considering speaking to ACAS again and seeing if there is any way of opening negotiations again in regard to agreeing a settlement prior to the hearing.

When is the tribunal date set for and when will you get access to the bundle?

I would seriously suggest though that you do take a step back and really consider how strong a case you have.

If you do decide to pursue then you will also need to ensure that you are fully familiar with all witness statements from both parties and all other documentation that is contained within the bundle. If needed I can provide some general guidance on submissions and what you need to consider when thinking about questions for cross examination.

[mariefab]

Items 1-4 are an 'issues' list.
It's a summary of the matters that need to be proven.
At the hearing the Tribunal will look at the evidence provided, by both sides, on these issues in order to reach a decision.

[psychojuice]

Ula could you please make this forum non google-able and private?

[Amethyst]

I'll move you to the VIP section and request it's removed off Google.

Edit: Done. it will take a few days to die from Google but anything new posted on here won't be public or listed on Google Cache.

[psychojuice]

On the advice of Ula I am going to post here my case and hope I can pick the brains of some legal boffins. Please, please, please, I am not here to ask for people's opinion on the merits of my case. I know what they are and I know the risks. I am only here for advice on how to put my case across during cross examination and final submission.

This is my case:

2 years ago, I was invited for 2 interviews with the same company for the same type of job. One paid £20k a year and the other £40k a year. Please just accept that both jobs required the same skills set as, despite the pay difference.

I went to the first i/v (£40k) and came out thinking it went really well. I went to the second i/v (£20k) the following week and came out feeling a less confident. 2 weeks later I was offered the £20k job and rejected for the £40k. Fair enough I thought, I just want some feedback about the £40k job and I will accept the £20k job.

The feedback was slow and very unhelpful. I was given feedback after about 2 weeks, that told me nothing. Just that other candidates had scored higher than me! When I asked for more clarification, I was ignored for another 2 weeks. That is when I felt something was wrong. I wrote to the company's HR asking for more feedback and I was eventually given more unhelpful feedback from the same person who gave me the first! He said I had not done well on a couple of the competencies and other had done better than me. The strange thing was that the person who gave me the feedback was not either of my interviewers for the £40k job!

I joined the company, but was constantly chasing the HR for copies of my interview notes taken. But I just wasn't getting anywhere. Eventually I was sent interview notes, but for only one of the two interviewers! I immediately asked for the second one (to this day- I was never sent the second set of notes, but given it to me by my ex-solicitor via disclosure).

Having looked at the marks, I was right. I would have been given one of the multiple jobs available had I not been marked down for one of the competencies- communications. I was basically given the lowest mark possible.

6 months later, I receive the respondent's first et1. They states that I simply had very poor communications skills, hence the reason for the mark. In relation to the 2nd i/v which I got the job for, they said that I was given an advantage due to the previous £40k interview. However, what they failed to spot, due to an admin error, the interviewers for the £20k job used a different paper to the one used for the £40k. The £20k paper was for promotional purposes and not for new employees. Hence it was a more difficult interview with harder marking criteria.

Anyway 3 months later an amended et3 was received. The respondent, had changed their tactics. They said that the reason was not now because other simply did better than me, but because I had very poor interpersonal comms skills! This was the first time I had ever been told this by anyone!

Anyway a few months later came the witness statements. My two interviewers and the guy who gave me feedback.

My 2 interviewers both said that I had very bad communication skills, but the problem for them is that no where in their interview notes have they indicated this. Furthermore, for about 9 months, no mention of this was made by either of them or the respondent (until the amended et3) was received.

However the best was from the feedback guy (I promise I am not making this up). In the amended ET3 he states that he got my feedback mixed up with someone else. But in his statement he said that he got confused because he didn't know who my interviewers were and thus decided to write me and other failed candidates the same email! He then followed up by doing the same with the second feedback email.

I think I have covered everything.

So in 2 weeks I go to the ET. I am here to see if you boffins are able to help me (now that my solicitor is off the record as my insurer said my prospects had just dipped below 51%).

Basically this is what the CMO states:

1. Has the Respondent subjected the Claimant to the following treatment falling within section 39 Equality Act, namely:

a. scoring the Claimant low overall for the job?

b. scoring the Claimant 1 out of 10 for communication skills?

2. Has the Respondent treated the Claimant as alleged less favourably than it treated those candidates who do not share the Claimant’s protected characteristic (colour and/or ethnic origin) or would have treated such candidates?

3. If so, has the Claimant proved primary facts from which the Tribunal could properly and fairly infer that the difference in treatment was because of the Claimant’s colour or ethnic origin? The Claimant will invite the Tribunal to draw inferences from:

a. The scores awarded to him in comparison to the scores awarded to others of different colour/ethnic origins;

b. The way in which the Respondent dealt with his requests for further information and copies of documents and the lack of explanation provided

c. The feedback provided by Mr Taylor which the Claimant’s says was untruthful

4. If so, what is the respondent’s explanation? Does it prove a nondiscriminatory reason for any proven treatment?

So this is what I think- I have 3 things to cover:

1. Prove that the scoring was low overall for the i/v;
2. Prove that the scorings for the communications was low for the i/v.
3. Prove that Mr Taylor lied previously and provide any other information that the ET could make inferences on.

Certainly point 2 is easy enough. If I communicate in the way the respondent alledges that I did at the i/v, they win, if I don't then my case is very strong.
Point 1- I plan to compare the scores of other candidiates and what they said and were scored. This was provided in disclosure, only on the request of the judge. I have got a few very good examples, where others who got the job scored highier than me, but gave less evidence.
Point 3- I think I should be able to do this. But I am unsure about what other information I can provide to the ET to make other inferences. I have stats released by the company under the FOI which shows in the last 10 years the number of candidiates for BME candidiates was 15% overall, but only 7% were offered a job, compared with 65% white candidiate applicants and 79% jobs offered to them.

Is there anything else I could use that the ET could infer race discrimination?

Thanks very much for reading all of this! Please let me know if there is anything that needs clarifying.

Also does anyone have a sample of a race discrimination closing submission that I could read? How long should the submisson be? If my final submisson is say 25 pages, when giving my closing oral submisson, should I read it word for word, or sumerise it, perhaps down to 5 pages?

Thanks again.

[psychojuice]

anyone available to help?

[psychojuice]

Ula any chance of giving me your thoughts and tagging anyone else you think might be able to assist?

[Amethyst]

mariefab might be able to help xxx

[Amethyst]

Have you been through previous cases btw - you can find them https://www.gov.uk/employment-tribun..._date%5Bto%5D= - bit tedious looking through but this one is quite recent - they lost their case but it might give you some ideas, and I'm sure there will be similar cases to look through.

Race Discrimination - Job not offered after interview - https://assets.publishing.service.go...-2016_Full.pdf

[Amethyst]

Btw - did your law firm give reason why the believed your chances of success had reduced to under 51% after disclosure ?

[psychojuice]

Have you been through previous cases btw - you can find them https://www.gov.uk/employment-tribun..._date%5Bto%5D= - bit tedious looking through but this one is quite recent - they lost their case but it might give you some ideas, and I'm sure there will be similar cases to look through.

Race Discrimination - Job not offered after interview - https://assets.publishing.service.go...-2016_Full.pdf

I've been reading this book albeit an older decison http://www.rubensteinconferences.com...ion-law-guide/ it is very useful with important cases. £150 for the latest edition. Does anyone have a copy I could read, or perhaps they could quote a few of the most important recent cases regarding interviews?

[psychojuice]

Btw - did your law firm give reason why the believed your chances of success had reduced to under 51% after disclosure ?

It is because before the respondent did not give a acceptable reason, now a year later, they are saying it is down to my communication skills. Basically it will come down to how I perform on the day. If I hold my nerve and speak clearly (which is what I do anyway) I will win. If the barrister badgers me and uses tricks, and demonstrate poor communication skills, then I will probably loose. However I would have to demonstrate very poor communication skills to loose!