EMPLOYMENT TRIBUNAL- opening and closing subs and cross exam

[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.

mariefab any chance of giving me some words of wisdom please?

[ULA]

For the case management order, remember you are needing to prove that the actions of the Respondent and the way in which you were treated were because of discrimination, on their part, due to your ethnic origin/colour. Specifically, you are being asked to proof the primary facts which would allow the Tribunal to fairly infer that in fact the actions were discriminatory. Specifically, the CMO is requiring you to provide proof that:

1. The score awarded to you in comparison to other candidates was due to your ethnic origin/colour

2. The way in which you were dealt with in your requests for further information and copies of documents and the lack of explanation provided was because of your ethnic origin/colour

3. That the feedback provided by Mr Taylor was not true.

In regard to your approach I think you are missing a couple of things that are being required by the CMO other than the points you have indicated you are going to have to cover, namely:

1. This is not only about just your communication skills but also about any other criteria for the job where you have scored less well than other candidates. The CMO refers to “The scores awarded to him in comparison to the scores awarded to others…” So, you have to consider the overall score as well as the individual score for communication.

2. Don’t forget this point. I presume you claim raised the issue in regard to the requests for further information/documents and lack of explanation. The CMO is asking you specifically to evidence this therefore you need to prove that you were treated this way due to your ethnic origin/colour and that other candidates that did not share your protected characteristics were treated more favourably.

3. You seem to indicate that you have the necessary evidence to prove this. The statistics are useful but be aware that the Respondent may have an argument/reasonable explanation that adequately deals with why the % percentages are as published.

The case S Hinds v Education Support Partnership suggested by Amethyst is a useful one for you to go through. Although Mr Hinds lost the case, it may provide some help in understanding how the Respondent presented their case and what you need to be “countering” in your evidence. Although a lengthy task to undertake, the published ET cases website link given is useful - you can filler by race discrimination but unfortunately not specifically related to job interviews

Sorry I do not have any samples of a race discrimination closing submission.

In terms of timings I have seen guidance that say closing submissions should normally last about 30 minutes for each day the hearing has lasted. Although, this is not an absolute rule and some short cases deal with complex legal points that will require extensive discussion; some long cases are best dealt with a shorter closing submission. However, the most common mistakes in closing submissions are excessive length and irrelevance. It is very easy to speak at great length, while doing nothing to help your case. A short, relevant submissions will almost always be the most effective one.

[Amethyst]

Ula Thank you

[mariefab]

Ula has comprehensively described what you'll need to demonstrate at the hearing.

I assume that the reason that you haven't divulged the evidence that infers racial discrimination that you intend to rely on is because you don't want a discussion on the merits of your claims. (I would expect that it's to be found in the interview notes that were disclosed and the feedback given to other candidates.)

But (just in case) I'll further stress that it's not enough to say...

a. I was awarded less favourable scores than other candidates so wasn't appointed to the higher paid role.
b. The Respondent provided vague, unsatisfactory feedback.
c. Candidates who do not share my protected characteristic were awarded higher scores.
e. Therefore, I invite the Tribunal to make adverse inferences of racial discrimination.

...because this misses out the crucial d.
i.e. the evidence that the decisions to award you lower scores etc. were on the grounds of your colour/racial origin.
Unless you provide this evidence the burden of proof will not shift to the Respondent.

I wouldn't do an opening submission.
Follow all of the CMO issues list to present your case.
Have everything you intend to say written down in front of you in well spaced bullet points.
Make sure that you've noted the page number of any documents you refer to.
Mark things off as you go along.
Practice going through it aloud to someone.

Do prepare a closing submission.
I don't have an example either. But basically it's a document in which you lay out why you should win.
Again use the issues list to set out all the evidence proving each point.
Show, where possible, that the Respondent has failed to provide a satisfactory non-discriminatory reason for the less favourable treatment.

How many days have been listed for the hearing?
If it's 3-5 you'll probably be able to read out your closing submission.
Will you have a companion to take notes?
If someone is taking down the Respondents evidence that'll assist you when amending your closing submission at the end of each day.

[psychojuice]

Ula has comprehensively described what you'll need to demonstrate at the hearing.
I assume that the reason that you haven't divulged the evidence that infers racial discrimination that you intend to rely on is because you don't want a discussion on the merits of your claims. (I would expect that it's to be found in the interview notes that were disclosed and the feedback given to other candidates.)
But (just in case) I'll further stress that it's not enough to say...
a. I was awarded less favourable scores than other candidates so wasn't appointed to the higher paid role.
b. The Respondent provided vague, unsatisfactory feedback.
c. Candidates who do not share my protected characteristic were awarded higher scores.
e. Therefore, I invite the Tribunal to make adverse inferences of racial discrimination.
...because this misses out the crucial d.
i.e. the evidence that the decisions to award you lower scores etc. were on the grounds of your colour/racial origin.
Unless you provide this evidence the burden of proof will not shift to the Respondent.
I wouldn't do an opening submission.
Follow all of the CMO issues list to present your case.
Have everything you intend to say written down in front of you in well spaced bullet points.
Make sure that you've noted the page number of any documents you refer to.
Mark things off as you go along.
Practice going through it aloud to someone.
Do prepare a closing submission.
I don't have an example either. But basically it's a document in which you lay out why you should win.
Again use the issues list to set out all the evidence proving each point.
Show, where possible, that the Respondent has failed to provide a satisfactory non-discriminatory reason for the less favourable treatment.
How many days have been listed for the hearing?
If it's 3-5 you'll probably be able to read out your closing submission.
Will you have a companion to take notes?
If someone is taking down the Respondents evidence that'll assist you when amending your closing submission at the end of each day.

As always thanks. I appologise for sounding silly, but you said:

...because this misses out the crucial d.
i.e. the evidence that the decisions to award you lower scores etc. were on the grounds of your colour/racial origin.
Unless you provide this evidence the burden of proof will not shift to the Respondent.

This is my understand, please correct me if necessary:
I have no direct evidence e.g. racist name calling, so I am having to rely entirely on indirect evidence such:

1. Statistical data;
2. That no one of my ethnicity was selected for one of the jobs;
3. That there is no evidence of my poor communications on the interview notes;
4. The respondent did not supply me with both sets of interview notes until after 6 months

etc.

My understanding is that from the above, the ET can make a inference of race discrimination IF the respondent is unable to give a reasonable argument for them? If that is not right, then what is?

Am I barking up the wrong tree?

May I please send you my cross exam questions for you to check and give me some constructive criticism?

[psychojuice]

mariefab Ula re disclosure, I am 99.9% sure that the respondent in my case has failed to disclose documents that would assist my case.

For example I was interviewed by 2 people. In the 9 months this matter was investigated by the company, only 2 emails (1 from each interviewer) have been disclosed. There is just no way they could be the only emails. I have asked the respondent's solicitor to confirm that there is no other disclosure that could assist my case and replied no. If I were to allege that the respondent had intentionally withheld evidence that could have assisted my case, would I have to let the judge know at the start of the proceedings?

Also, one of the respondent's witnesses (one of my interviewers) had disclosed test scores from a work course that I failed. He is using the failure of the course against me. Given the test score has nothing to do with my claim- had the witness breached the DPA/ GDPR? AGain, if this is the case, would I have to to tell the judge at the start of the hearing?

[psychojuice]

Ula mariefab Any chance on getting your thoughts on the above?

mariefab could you please respond to my last email? I guess I am just very unsure and need to some reassurance!

[mariefab]

The Respondent only has to provide their own arguments if you first show a prima facie case.

1. Statistical data;
Insufficient on it's own to make an adverse inference.

2. That no one of my ethnicity was selected for one of the jobs;
Only potentially helpful if the documents you received from disclosure showed that a significant number of those interviewed were of your ethnicity.

3. That there is no evidence of my poor communications on the interview notes;
This may help if the quality of communication was mentioned in the interview notes of many of the other candidates.

4. The respondent did not supply me with both sets of interview notes until after 6 months.
If you can show that candidates of a different ethnicity were provided with requested interview notes promptly, this may help.

If you are sure that documents have been withheld you could try to get them to reveal this when questioning witnesses.
I wouldn't raise the failed course.

[psychojuice]

A quick fire question if I may:

I have 3 respondent witnesses to cross examine. My preparation has out one witness first, second and third.
If the respondent brings on a witness that is not in my order- can I say to the judge that I am not ready to cross examine yet and that I wish to x examine another witness first?

If counsel for the respondent won't play ball and offer me the witnesses in the order I want, I may have to do this. Any thoughts?

[mariefab]

The Respondent will decide the order in which it's witnesses are called.

[psychojuice]

The Respondent will decide the order in which it's witnesses are called.

Can I say I am not ready to ask a witness questions and question them after I have done another witness?

[psychojuice]

If a witness at a ET refuses to give out confidential info, like a person's name- is it acceptable to ask him to write it down on piece of paper and hand it to the judge?

[psychojuice]

Amethyst could you make this public again please and cancel and refund my membership. I cant see any real benefit to it- sorry!

[ULA]

"Can I say I am not ready to ask a witness questions and question them after I have done another witness?"

As Mariefab has stated it will be up to the Respondent as to the order they wish to call their witnesses. You need to be in a position to cross examine the witness immediately after the Respondent has completed their questioning of the witness. Following your cross examination there is the opportunity for the Respondent to ask any further relevant questions arising out of the questions and answers given in cross-examination. The Tribunal may also ask questions of the witness at any stage, although this typically takes place at the end of cross-examination and before re-examination

"If a witness at a ET refuses to give out confidential info, like a person's name- is it acceptable to ask him to write it down on piece of paper and hand it to the judge? "

I am not sure what you are getting at here. Remember your cross-examination questions need to be based on information contained within the Bundle.

[Amethyst]

Amethyst could you make this public again please and cancel and refund my membership. I cant see any real benefit to it- sorry!

Yip, no problem