Employment tribunal appeal

[psychojuice]

I found out today that my claim for discrimination at the ET failed. But I'm going to appeal it. A few questions if I may

1. The judge did not allow me to submit my written submission and only told me an hour before that I would have to give an oral submission and nothing else. I was completely unprepared and I feel I was put at a disadvantage. The judge said that written submissions are no longer taken! That was very surprising given that I attended a similar type of ET were written submissions were taken. Can I use this as grounds for an appeal?

2. Much evidence that I provided to the tribunal has been ignored. I directed them to the pages in the bundle but no reference to the evidence has been made in the decision.
Can I use this as grounds for an appeal?

3. The respondents witness agreed that he got some of his notes wrong from his interview and I should have been awarded a higher mark, but the ET have not taken this into account. Can I use this as grounds for an appeal?

4. The decision also says I did not make a prima facie case. Could someone explain to me in the simplest terms how this is done. I just do not understand how it works and I suspect the ET do not either.

I'm so angry. Some of the things written are so one sided and I can't help thinking that I've been discriminated against by the ET- unconsciously of course course.

For anyone looking to make a claim for race discrimination at an ET my advice is don't. You simply will not be believed. Unless you have evidence that you were called the n word or the p word you stand no chance of winning. God I'm so depressed for both myself and for the future of our country. Fascism is on the rise...

[psychojuice]

One other question. What is the point of taking the oath when the ET does nothing when a witness lies? In my ET the respondents witness took the oath, stated his statement was true, then after I challenged him, admitted he made up some of the evidence. The crazy part of it is that the ET was prepared to believe him even after he told his lies ☹️

[psychojuice]

Ula mariefab

[mariefab]

1. You had a written submission prepared, you could have read it aloud. No.

2. There is no requirement that every piece of evidence is referenced in the judgement. No.

3. The witness admitted a mistake. That alone isn't evidence of discrimination. No.

4. a. You start with what happened.
e.g. Low overall score, your communication score, the unsatisfactory way your feedback requests were dealt with, alleged lies from Mr Taylor, you weren't awarded the higher paid role.

b. Next, you show that you were treated less favourably than candidates of a different race.
e.g. others scored higher, their feedback requests were dealt with better, they weren't lied to, a white person was awarded the higher paid role.

c. Then you have to show something more. It doesn't have to be much. Just something from which the Tribunal could infer that the reason for the difference between 1 and 2 could have been race.
Specifically race. Not something that could just as easily be due to sex, religion, age etc.
It doesn't have to be much, perhaps something as simple as being asked at interview which country you were born in and/or the interviewer seeming surprised that you were born here.

If you don't show all 3, and particularly c, you will not establish a prima facie case.

It's discrimination 101 and the Tribunal does understand it.

5. If a witness lies in one part of his evidence, then admits it, that doesn't make the rest of his evidence less credible.

[psychojuice]

5. If a witness lies in one part of his evidence, then admits it, that doesn't make the rest of his evidence less credible.

So what's the point of taking the oath if a person lies and the court is still happy to take their word for all other issues? Taking the oath seems a pointless exercise.

mariefab I plan to appeal the decision, can you recommend a good barrister in this area?

[mariefab]

It's a sad fact that people tell lies,under oath, in court.
Sometimes it's a flat-out, bald-faced lie that flies in the face of all the evidence.
Sometimes it's because they misremembered a fact, or confused it with something else or even that they've convinced themselves over time that what they are now saying is true.
Judges know this so they make an assessment of someone's overall credibility.

If, when challenged, a witness admits that something they previously stated was not true the Court will not automatically assume that everything else they said was a lie.

No, I can't recommend a barrister and unless you actually have evidence that covers 4c above you might want to reconsider an appeal.

[psychojuice]

A quick one if I may.

My ET was against a company not against an employee. I attended an interview where I did not get the job, but the person who got the job was less qualified than me (and a different race). I know they were less qualified because their interview notes show he barely gave any good answers. Mine were far better.

Anyway my interview and the successful candidate's interviewer were different people.

At the ET I was told by the judge to not ask my interviewer about the notes made by the successful candidate's interviewer.

In retrospect that was wrong because it would have allowed to show that the candidate was less qualified (as per their answers) and they were a different race. Was it wrong for the judge to do that? If not, how should that evidence have been presented?

mariefab Ula

[mariefab]

No, the Judge wasn't wrong.
Your ET was against the Company because the Company, as the employer, is vicariously liable for what you claimed were the discriminatory actions of your interviewers etc.

The notes taken by people who did not interview you and/or the quality of the answers given by other candidates were not directly relevant to your claim. The ET was not an opportunity for you to demonstrate that you were better qualified for the job.
A Tribunal must not substitute it's opinion for the employer's in this way.

[psychojuice]

No, the Judge wasn't wrong.
Your ET was against the Company because the Company, as the employer, is vicariously liable for what you claimed were the discriminatory actions of your interviewers etc.

The notes taken by people who did not interview you and/or the quality of the answers given by other candidates were not directly relevant to your claim. The ET was not an opportunity for you to demonstrate that you were better qualified for the job.
A Tribunal must not substitute it's opinion for the employer's in this way.

So the only i/v notes I can use to compare are the candidates who were interviewed by the same people as me. Ok, understood.



mariefab Another few questions if I may.

I request feedback after the said i/v. Manager for the whole recruitment process (not my interviewer) sends me feedback about i/v. I request more detailed feedback. After 2 months nothing. I email the company's HR and state for the first time that I may have been racially discriminated. Manager writes to me stating xyz- still doesn't make sense to me. Several months later ET1 submitted, clearly stating the allegation of RD. ET3 submitted stating the failure of the interview was down to better candidates than me. About 8 months after the i/v, an updated ET3 was sent which stated that the manager had made a mistake and the feedback was for someone else.

Then about 3 months later, a few weeks before the ET, manager writes his statement saying that he had got confused and sent me, and a number of other people, the same feedback from one of the candidates he interviewed.

At ET, he took the oath and confirmed his statement was true. Under x-examination, he admitted he made up the feedback.

Question 1- given that I made it very clear about 2 months after the i/v that I believed the matter was RD, the manager continued to lie about the feedback for almost a year- until the ET where he stated he got confused with the feedback. Could this be construed as RD by the ET?

Question 2- Re point C in your email above about a prima facie case- if one of my interviewers wrote down that I would send my proof to work in the UK later (despite me being british) and interview notes for other candidates interviewed by the same person, shows that he did not check anyone else's documents, could this be used for point C? The other candidates were white british.

Question 3- If a company hires 9 white british people and one person who identifies herself as Turkish, does that mean the company have a strong defense against RD from someone who is off a chinese background (given that both people originate from Asia)?

thanks once again mariefab!

[mariefab]

1. You need to let go of the lies because they are not relevant to your claim of RD.
He sent the same feedback to a number of other people.
Unless you can show that those other people were not white and he sent better feedback to the white candidates this indicates that sending the duplicated feedback was not racially motivated.

2. It's weak, but if you can prove that the white british candidates had not provided proof of their eligibility to work in the UK before or at the interview it might assist if you have other indications.
Did you raise this at the ET?

3. Possibly, but absent a prima facie case they don't need a defence.

[psychojuice]

1. You need to let go of the lies because they are not relevant to your claim of RD.
He sent the same feedback to a number of other people.
Unless you can show that those other people were not white and he sent better feedback to the white candidates this indicates that sending the duplicated feedback was not racially motivated.

2. It's weak, but if you can prove that the white british candidates had not provided proof of their eligibility to work in the UK before or at the interview it might assist if you have other indications.
Did you raise this at the ET?

3. Possibly, but absent a prima facie case they don't need a defence.

1. Okay, I am starting to understand all of this a bit better. With cases like this, you do not look at the mens rea, only the actus reus. I keep forgetting that.

2. What I can prove is that no notes were made in the "right to work in the UK" box for white candidates, but in mine there were. Yes I did say this in cross examination, however due to my poor oral submission, I did not emphasize the point.

3. Isn't that itself racist? I am of chinese origin, how can someone who is of say turkish origin be considered to be the same as me! What is the interviewer was racist against chinese! How can that possibly be right?

[mariefab]

2. If you raised it at the ET they must have decided that nothing could be inferred from the absence of notes. For all you and the Judge know the reason for the absence of notes could have been that proof had already been provided.

3. It just indicates that the employer doesn't exclusively hire white british employees.
For the purpose of recruitment; turkish, chinese, white british and all other ethnicities should be considered to be the same.
You're not suggesting that, in order not to deemed racist, an employer must be able to demonstrate that they have employees of every possible ethnicity proportionate to the local working age population? That would definitely lead to discrimination.

[psychojuice]

2. If you raised it at the ET they must have decided that nothing could be inferred from the absence of notes. For all you and the Judge know the reason for the absence of notes could have been that proof had already been provided.

3. It just indicates that the employer doesn't exclusively hire white british employees.
For the purpose of recruitment; turkish, chinese, white british and all other ethnicities should be considered to be the same.
You're not suggesting that, in order not to deemed racist, an employer must be able to demonstrate that they have employees of every possible ethnicity proportionate to the local working age population? That would definitely lead to discrimination.

2. Actually no. There was a yes and no box to tick as to whether documents had been seen. Mine was ticked no- then a note stating that documents will be sent later. Everyone else's want just left blank (no tick or notes).

3. No what I am saying is that a person can be racist even if he hires an East African person, but refuses to hire another person because they are from west Africa. Or he hires a turk, but is racist towards chinese. Why is that not racist, I just can't get my mind around it!? Why does the ET not accept that hiring one person who calls himself asian is not proof of non racism, when someone else who is also under the umbrella of the asian category is discriminated? Chinese are different to turks who are different to Israelis who are different to Indians who are different to Japanese! We are are unique races, who are capable of being discriminated individually and therefore should not be placed under the umbrella of "asians!"

Of course, I believe that jobs should only be offered on merit only.

[mariefab]

2. OK, did the respondent have any comment on this?
3. I see what you mean now. An ET is certainly able to see the distinction. But they need some evidence from which they can infer that this has happened and the possibility that it could have been in the interviewer's mind isn't evidence.

[psychojuice]

2. He just went quiet.


3. Sure. As long as the ET do not accept that just because they hired a Turk, they can't be racist towards other Asians, which is what my decision letter appears to say. However because of my poor summing up at the end, perhaps because I didn't explicitly say that, the EJ could not assume it.