Employment Tribunal - Discrimination - Advice Please

[Ediepeedie]

Hi there,

I'm new to this forum so hopefully I posted in the correct thread.

I represented myself at a tribunal in September and the case was a bit like David & Golliath (I work for a very large well known company)

Anyway, I had plenty of evidence to prove my colleauges (Respondent) were not being truthful at the hearing. In this case there were 4 colleagues for the respondent and just me as the claimant.

After the hearing took place, we were advised that a judgement would follow in due course (still waiitng). However, the following day I found some additional evidence to support my claim and also, highlight that the respondent's version was completely untrue.

I submitted this evidence and asked if the judge would consider when making their judgement. A few weeks later I found an email that literally blew their whole version out of the water, so again I referred it to the judge for consideration.


At this point, I was not aware that I needed to also request permission from the respondent - so when it came to light that I had submitted new evidence, I was advised by their counsel that they strongly object to the additional evidence being submitted and that I had my chance at the hearing (so to speak).

A few weeks later the judge advised that the judgment was made prior to receiving my request and therefore has not been considered. At the moment, I am not aware if this is because my case was upheld.

My question is, I submitted the first part of my evidence within 24 hours of the closing submission and the second part a few weeks later. More importantly, this evidence was not readily available to me at the time hence why it was not submitted during the hearing.

I am fully aware that if my case is not upheld, I can request a review under the Ladd v Marshall test:

1. The evidence could not be obtained with reasonable diligence for trial ( I contacted IT on various occasions and the day after the hearing they attempted a sync with old hard drives and this is when the information came to light) (second piece of evidence was an email that I didn't realize I had printed and when having a clearout it was tucked at the back of cupboard);

2. The evidence must be such that if given would probably have an important influence on the case though it need not be decisive;

3. The evidence must be such as is presumably to be believed, it must be credible, though it need not be incontrovertible.

Can anyone advise whether they have experienced a respondent brazenly sticking up for one side when there is copious amounts of evidence to show they are not telling the truth (under oath)?

Another question I have is that, would the judge have even looked at the evidence provided to them even if they had made their judgement?

The waiting game is certainly taking a toll on my health, but despite this, I am struggling to understand how the company in which we all work for, we hell bent on protecting the guilty and reprimanding the innocent.

Surely a fair case from the respondent point of view is to get the bottom of it and follow procedures accordingly? Yet, it's all about them and how they can be protected.

Grateful for any advice or experiences you are happy to share with me .

Thanks in advance

[ULA]

Hi sorry for my delay in responding.

Unfortunately, there is nothing you can do at the moment in regard to the further evidence you have found. If you win without the evidence, this won’t matter but if you lose all or part of your case then you do have some options.

One as you are aware, is to request a review under the test set out in Ladd v Marshall however, just be aware this is not an easy test to meet. The tribunal system is, for obvious and sensible reasons, reluctant to reopen cases that it has already dealt with. Many applications fail, either because the tribunal believes that if reasonable steps had been taken the evidence would have been available, or they simply do not think it is significant enough to justify reconsidering the case.

Alternatively, you could appeal, however seeing as this is evidence based then in my view the review process would be the best one.

It is unlikely that the new evidence submitted after the hearing would have been reviewed since there would have been no opportunity for the judge to hear what the respondent would have had to say in regard to this evidence. Effectively a judge has to hear the arguments at the time of the hearing from both sides and their respective counter-arguments and make a judgement based on them and the legal facts of the case.

Each party will have their own perspective on the situation and once it gets to a tribunal hearing each side is effectively defending their standpoint. It’s unfortunately the nature of litigation in general including the proceedings at an employment tribunal.

Not sure how long ago your hearing took place and I appreciate that it is an anxious wait but “hang in there”.

Hope this has helped but if you have any more questions just pop back and post them here.

[Ediepeedie]

Hi sorry for my delay in responding.

Unfortunately, there is nothing you can do at the moment in regard to the further evidence you have found. If you win without the evidence, this won’t matter but if you lose all or part of your case then you do have some options.

One as you are aware, is to request a review under the test set out in Ladd v Marshall however, just be aware this is not an easy test to meet. The tribunal system is, for obvious and sensible reasons, reluctant to reopen cases that it has already dealt with. Many applications fail, either because the tribunal believes that if reasonable steps had been taken the evidence would have been available, or they simply do not think it is significant enough to justify reconsidering the case.

Alternatively, you could appeal, however seeing as this is evidence based then in my view the review process would be the best one.

It is unlikely that the new evidence submitted after the hearing would have been reviewed since there would have been no opportunity for the judge to hear what the respondent would have had to say in regard to this evidence. Effectively a judge has to hear the arguments at the time of the hearing from both sides and their respective counter-arguments and make a judgement based on them and the legal facts of the case.

Each party will have their own perspective on the situation and once it gets to a tribunal hearing each side is effectively defending their standpoint. It’s unfortunately the nature of litigation in general including the proceedings at an employment tribunal.

Not sure how long ago your hearing took place and I appreciate that it is an anxious wait but “hang in there”.

Hope this has helped but if you have any more questions just pop back and post them here.

Thank you for responding. I received my outcome a few days ago and it was good news ....It succeeded. I now have to prepare for the remedy hearing.

I have a few queries which I'm hoping can be clarified on this forum (thank you in advance)....

1. Can I request a preparation cost order for the work I have done (from start to finish) if so, am I correct in saying it's £19 p/h?

2. The discrimination claim stated 5 acts of discrimination, however, only the one succeeded, but this was the most important one, the other points were a by - product. Am I correct in saying that this will be treated as a one off act? Will I be better positioned due it being around mental health?

3. Finally, I can also provide, in my view, recommendation's that I feel would benefit me and others going forward. I welcome suggestions if possible as I want to ensure this doesn't happen to anybody else in the company


Thank you, and I look forward to hearing from you in due course.

[ULA]

Congratulations on winning your case.

In preparation for the Remedy Hearing (RH) you may be ordered by the ET to prepare your documentation in advance of the RH, if so, then be guided by the directions given. If you do not hear from the ET, you should get together all of the information in regard to the compensation you are claiming, this may just mean that you have to update the documentation/Schedule of Loss which you submitted for the main hearing. Also ensure you have all relevant supporting documentary evidence.

Just so you are aware and if you wanted to, you are now in a much stronger position to negotiate with your employer, and you are still able to reach a settlement with them at this stage if you want to.

In regard to the specific questions you asked:

1. You may apply for a costs order or a preparation time order but you need to do it by 28 days after the date on which the judgment finally determining the proceedings was sent to you and the Respondent. I believe that the hourly rate is now £39.
2. The award will be based on the element of the claim that succeeded. The award is likely to be made up of two parts a) any financial loss b) injury to feeling. This latter award is based on the Vento bands

- a lower band of £900 to £8,800 (less serious cases);
- a middle band of £8,800 to £26,300 (cases that do not merit an award in the upper band); and
- an upper band of £26,300 to £44,000 (the most serious cases), with the most exceptional cases capable of exceeding £44,000.

1. I am not sure about this specific point. Generally at the RH the ET will want to hear from you about how much you are claiming and the reasons for the amount you are claiming. The employer will have the opportunity to put forward their argument and any reasons why they think that your compensation should be reduced. The ET will consider all of the evidence submitted regarding remedy and will make a decision about how much compensation you receive. This will then be confirmed in writing following the RH.

[Ediepeedie]

Thank you so much. I thought I read £39 p/h but could only find £19 when I was researching so that's great news.

I have to submit my particulars by next week. With regards to settling prior to Remedy hearing, I am not overly keen, especially as they have been so negative about my claim from the outset. For me it's more a principle than money if this makes sense.

With regards to cost order, is this something I need to submit seperately or can it be included in the remedy bundle?

Thank you once again

[ULA]

I can understand on the issue of settling but this is still encouraged if possible prior to the RH.

I presume the particulars are going to the ET and the respondent. If so, then as that is within the 28 days, add

in the application for a costs order

but make clear reference to it in the covering email correspondence so that it cannot be overlooked.

[Ediepeedie]

Thank you, I will do this. I will let you know how it goes.

[ULA]

Good luck and yes please come back and tell us the outcome.

[Ediepeedie]

Quick update for you...Met with. Solicitor to go through my evidence Inc new evidence and was advised to submit a request for reconsideration based on the new evidence (it basically probes the respondent lied).*
I submitted my request and coincidentally so did the Respondent - the argue the outcome was not viable against the evidence presented.
I have also been advised by the ET that the pieces of evidence submitted prior to chambers day was not passed to the Judge, yet I had received an email one week prior to say it will be put before the judge for consideration, then one week later I received an email from ET stating the judge did not have sight of my evidence when discussing judgement so therefore was not considered.

Based on this recent activity I have a few queries which I would be grateful if you help.


1. I have read the appeal process and the options are incorrect judgement or perverse - should I issue an appeal citing the errors re new evidence not passed to judge when advised it would? I'm presuming this would fall under perverse?
2. I am pretty certain this will be the route the respondent intends to take while waiting outcome of reconsideration so not sure how this works for me?
3. I've submitted my preparation of costs - will this be processed or will it be discussed at Remedy (if it still goes ahead)

The situation is likely to be taken to the highest court before they concede the judgement and I will admit, this has left me slightly out of my depth and extremely sad that they feel the need to pursue the matter when they did discriminate against me.

[ULA]

Appeals to the Employment Appeals Tribunal (EAT) are only allowed on a point of law and the EAT will not normally reconsider facts already decided upon by the employment tribunal. The appeal has to be lodged within 42 days of the tribunal decision. *

To follow a perverse argument, you would need to prove that the decision was so ‘perverse’ as to involve an error of law if the tribunal has reached a decision that no reasonable tribunal, on a proper appreciation of the evidence and the law, could have reached. It is difficult to formulate with any clarity what that means, however the case of Mummery LJ Stewart v Cleveland Guest (Engineering) Ltd does give the various expressions that have been used in cases.

What would you want to gain by the appeal since your claim was successful? Is it that the claim was only successful on one of the five points and the additional evidence could have potentially increased the number of points that you would have been successful on and thereby have a more positive outcome on the remedy?

The Tribunal will need to notify the respondent who will be given a reasonable opportunity to make representations (in writing or at a hearing, as the Tribunal may order) in response to the application. Given that you have a remedy hearing due, your order and subsequent response may well be decided at that hearing or the judge may just notify both parties the outcome of the decision on whether to award costs or not.
*

[Ediepeedie]

Appeals to the Employment Appeals Tribunal (EAT) are only allowed on a point of law and the EAT will not normally reconsider facts already decided upon by the employment tribunal. The appeal has to be lodged within 42 days of the tribunal decision.
To follow a perverse argument, you would need to prove that the decision was so ‘perverse’ as to involve an error of law if the tribunal has reached a decision that no reasonable tribunal, on a proper appreciation of the evidence and the law, could have reached. It is difficult to formulate with any clarity what that means, however the case of Mummery LJ Stewart v Cleveland Guest (Engineering) Ltd does give the various expressions that have been used in cases.
What would you want to gain by the appeal since your claim was successful? Is it that the claim was only successful on one of the five points and the additional evidence could have potentially increased the number of points that you would have been successful on and thereby have a more positive outcome on the remedy?
The Tribunal will need to notify the respondent who will be given a reasonable opportunity to make representations (in writing or at a hearing, as the Tribunal may order) in response to the application. Given that you have a remedy hearing due, your order and subsequent response may well be decided at that hearing or the judge may just notify both parties the outcome of the decision on whether to award costs or not.

Hi there,
The ET Judge has agreed to consider both applications for reconsideration and has informed both parties that will take place at the Remedy hearing in March.
My question is - with regards to the new evidence which is being considered at the Remedy hearing, is it permissible to include written statements from colleagues (who were there at the time) to support my case? Or should it be enough that an email trail is suffice? The reason I ask is because the email is printed and no longer available on line (inbox in work is deleted every 12 months). I thought it may be useful to have further backup but wasn't sure if this was acceptable.
I have received the hearing bundle from the respondent in readiness for the hearing but it doesn't include either of our applications for review so wondered how this is actioned during the day i.e.wouldn't we need to have copies in front of us?
Grateful for any advice you can provide at this time and thank you

[ULA]

I am not entirely sure.

When you submitted your request for reconsideration you and the other party, who also requested reconsideration, would have both had to set out details for why the decision made by the ET should be reconsidered. I presume in your case that would have included presenting the new evidence. So it may be the case that the Judge will be relying on the information submitted in both your request for reconsideration at the RH.

May I suggest that you take along copies of what you submitted for our reconsideration and as the Respondent would have been obliged to send you a copy of what they submitted to the Tribunal in regard to their application for consideration you take that with you as well.

May also be worth a double check with the solicitor who advised you to submit a request for reconsideration.