Tribunal help....

[N80rbo]

My partner has a case in tribunal, wondering if anyone could go over case and advise please, I feel she is being duped, had one preliminary hearing..... Thank you.*

[ULA]

I presume that your partner is not represented.

We will need some more details of the claim to be able to help including an understanding of what the claim is about and what happened at the prelim hearing. Please keep any details anonymous in regard to your partner and the company against which the claim is being made.*

[N80rbo]

Thank you ULA, yes, apart from myself, she is unrepresented. My partner had worked for her firm approx 19months. In April 2019 she was moved from salaried to hourly paid without notice/knowledge even to her line managers. This resulted in @£150 less in her pay pkt per month, (pay slips etc all went online and this were inaccessible to mess ups for a few months) my partner tried first through her line managers to rectify the issue to no avail, word was passed down she was now hourly paid. My partner tried to sort out herself but suffers anxiety/depression and the attitude of her work caused her A/D plus her skin to flare up, leading to her not wanting to go to work etc.

I myself wrote an email asking for a grievance meeting and met a brick wall with them, they saying partner has to raise grievance (I can't). I explained how she is and why and I'd like to attend has companion with her this was refused, they saying 'she had capacity' and in line with acas only a TU or work colleague could attend. I explained she is not in a TU and a colleague would unlikely wish to attend with her and understand her A/D and support her fully, this was refused. I enquired with ACAS and they asked they explained that this amounts to 'unlawful deductions from wages', a breach of contract, that this could be raised in tribunal if firm refuse to sort and went on to explain, early conciliation, et1/et3 etc plus mentioned that due to partners A/D, could be 'disabled' and firm is discriminating by not 'making reasonable adjustments' by allowing myself to attend grievance meeting with partner but to ring the Equailty Advice Services which I did, they supported what Acas said.

So I emailed my partners firm to explain this, they replied that it was the first they knew of this 'disability' (my partners line managers knew what had been going on and were very supportive of her) and nothing was on her file...... (my partner has suffered A/D most of her life (38yrs old). A meeting was arranged but again I was told I couldn't attend only a TU or colleague.... 1.5hrs before meeting the manager cancelled saying he had double booked that day (on the et3 it says he was sick?) couple of days later sent new meeting date, my partner who was a mess getting prepared for the original meeting said she couldn't go through that again to have it cancelled, so I asked Acas if they could intervene, they tried to no avail, issued us a certificate and we applied to tribunal. My partners doctor put her on the sick with 'work stress', sick notes were submitted... Shortly after her line managers (couple) resigned. ET3 was returned to tribunal/us, full of lies. Then the firm got in touch with Acas with a Cot3 draft and in bold letters for the firm not to pay monies unless an agreement was reached, the firm went ahead and paid owed monies into partners bank acc, my partner had incurred 'debt' due to shortfall of wages per month but no offer of compense was forthcoming.

Prehearing took place via phone all, judge said due to firm paying owed monies into bank account that was the end of that, I asked if it was right that they went against Acas order NOT TO PAY MONIES, but judge said its paid and basically nowt else could be done mentioned the debt it had caused, but to no avail, to my understanding a person should be returned financially to where they would have been had incident took place?. Moved onto 'reasonable adjustments', other sides solicitor said my partner doesn't have a disability regardless of what sicknotes say and nowt on files, my partners line managers knew and supported her (proof of this) so surely the firm 'does know of partners' disability'. Judge said medical records should clear up whether disabled or not.

Two amendments were added by us,( my partner couldn't face going back to work, more so since her line managers had left) , these being withholding holiday pay (non payment for 10wks) other sides solicitor said he wasn't aware but will look into it, the other amendment was unlawful dismissal/constructive dismissal, judge pointed out that my partner had no case has not worked for firm for two years, I pointed out that due to the firms actions etc that she resigned due to her disability but unsure how to word or fit it in as an amendment if possible??

[N80rbo]

Sorry its so long....... The questions I have are:-
Can the original claim of unlawful deduction be reheard due to I 'm certain the judge wasn' t aware my partner was on sick and was having certain financial shortfalls due to original problem and deserves to be compensated for such?*
2nd.... I believe that the line managers knowing and supporting partner will stop firm from saying they weren't aware of partners disability?
3rd.....* Again due to withholding owed holiday pay, partner borrowed money off her mum to top up rent, can this be claimed for?
4th....... Is there a way that her resignation from all these actions amount to disability so no time limit to bringing a claim?

Thank you for reading such long posts etc, look forward to any help/advice that can be offered.*

[ULA]

Thank you for all the further information. In answer to your questions:
1. Once the payment of the amount being claimed as an unlawful deductions of wages has been made by the employer then that part of the claim is no longer valid and cannot be heard by the judge. A claim for unlawful deduction of wages is purely for the wages that should have been paid and were not, once they have been paid there is no valid claim to make.
2. Has your partner ever mentioned A/D to her employer during the time she was employed? To prove that her A/D is covered under the Equality Act 2020, she would need to prove that her mental health condition has a "sustainable and long term, averse affect on her ability to carry out normal day-to-day activities".
3. Unfortunately no, all that can be claimed for is the holiday pay that is owed and was not paid.
4. Has your partner resigned from the company, if so did the letter make it clear the resignation was for an issue or issues that amounted to a potential constructive dismissal situation? The qualifying period for bring a claim for constructive dismissal is 2 years service unless you can prove discrimination. See my point 2 for the definition of disability that would need to be proven for there to be discrimination and therefore not require the 2 year qualifying period.

It would be helpful to know what the et claim was for. *

[N80rbo]

Thank you for prompt reply, gutted that employers can treat employees in such a way and not be held properly accountable.*

[N80rbo]

Points 1 & 3i can erase then. Point 2, yes, she had been struggling at work for many reasons, not good management, being put on, this initially caused her to get depressed and struggle to get out of bed, I was waking her to go, she was late on 2/3 times, had couple of days off, her skin broke out into a all over rash, face was really bad, I paid private to get her seen to, she has always had eczema but never anywhere nr this outbreak, the dermatologist said it was probably flared up by stress at work but also her doctor was treating for one condition whereas on her face she had two and treatments were working against each other, she had 2/3days off work at the time, she couldn't face anyone. Her line managers were very supportive and spent time at work and when not at work talking etc, they knew of her depression/anxiety and stressed out, she cried many times to them at work, she was ready for jacking job in in 2019 but they talked her into not doing so, they tried to sort wages etc but also met brick wall, upper management said she being paid hourly end of. They left shortly after partner went on sick. Partner didn't feel she would get sufficient support from work now they had gone and the problems arising before going on sick.*

[N80rbo]

Original et1 form was for 'unlawful deduction from wages' and 'failure to make reasonable adjustments'.*

[N80rbo]

The case management summary asks for medical records to be obtained which is done, I will be sending to the respondents solicitor, but not all info on them needs to be disclosed, there's obviously a lot of personal unrelated stuff on there.*

[N80rbo]

The amendment of constructive unfair dismissal I explained relied on a breach of trust and confidence term and the breach was founded on the respondents failure to support my partner during her sickness absence..... The judge requires a need to clarify this...... I feel if they hadn't withheld her monies initially, then been obstructive etc regards the grievence mtg then she would never have ended up having 6months off work til resignation, maybe a week or two of hols or if the company had been more approachable.... Adjustments made to assist my partner.*

[ULA]

Great thank you for the further information that helps me piece it all together.*

It is good that you now have the medical evidence which the judge will need in order to consider the reasonable adjustments part of the claim. It will also be needed to consider any amendment and the time ruling on a constructive dismissal claim.*

Make sure when you send the medical information to the respondent's solicitor you also send to the tribunal as well.*

[N80rbo]

Thank u for your prompt replies ULA,* I'd like to ask, because of my partners line managers knowing and being employees themselves of the firm, is this enough to stop the firm claiming they didn't know or reasonably not known of partners disability?* If its accepted that a) it is a disability, b) they didn't make reasonable adjustments c) could we then use it to support her claim for constructive dismissal? Thank you once again.*

[ULA]

The duty to make reasonable adjustments only applies if the employer knows or ought reasonably to know that an employee is disabled. For an employer to be deemed to know of an employee's disability, it must have knowledge of all three elements of disability i.e. that the employee has:

* A physical or mental impairment
* Which has a substantial and long-term adverse effect
* On their ability to carry out normal day-to-day activities.

What you would need to prove is that the knowledge of the managers concerned meets the above requirements. Now the company could argue that those managers did not raise any concerns they may have had about a potential disability situation regarding your partner meaning they could not establish the facts.* However, there was the email that you sent in to explain about your partner's medical situation and that should have prompted them to "take a step back" and consider what they should do to investigate further which could have been by reference to getting permission to obtain medical records, have a meeting with your partner to discuss her condition, or make an appointment with an occupational health consultant. Any or all 3 of these would have been a good way for them to establish whether or not your partner was disabled.*

If the disability is accepted then potentially the two year length of service criteria will not apply. In terms of then proceeding with a constructive dismissal if this amendment to the claim was to be accepted then the onus will be on your partner to prove that there was no alternative but to resign and it was on the basis of disability discrimination. i presume that you have all the written correspondence around the grievance that your partner raised. Do you also have any notes of the discussions that you had with ACAS and the Equality Advice Service as that may be useful.*

However all of this will depend on whether the medical evidence you are now providing confirms a disability. *
*

[N80rbo]

ULA, thank u so much for your help today, you have been excellent, i will send a email to other sides solicitor to her partners holiday paid, I will send doctors records to solicitor and judge has you say, I did attempt earlier to send you what was said about 'disability' proof etc by judge but files are too big. I will keep you updated as it progresses, plz have a great wknd and stay safe..... Kind regards Tony....*

[N80rbo]

hi, wondering if you could help again please, sent medical records to respondents solicitors who have said ' on the issue of the disabilty claim,there several issues to consider as per the case management orders.i have just thought that we could potentially resolve the whole case in one settlement. in regards to the single act of discrimination (admittance?)what do you value this at?'

then says ,normally single acts of discrimination would be at the lower end of the vento scale....£500-£3000 and that the claimant has many significant hurdles to leap prior to making out the case, it could be possible to resolve this issue with the one for holiday pay. on the proviso that litigation cost was taken into account in any offer and it was realistic.

if you would consider making an offer, i can put it forward and see whether or not a settlement could be reached,but obviously,it does depend on how you value the claimants claim.

Also the repondents solicitor has said that because the respondent sent out the claimants p45/60 BEFORE paying out holiday pay , they can no longer pay it net but gross and claimant will have to sort with HMRC any tax liability. ( When my partner ,the claimant put in her notice it was accepted immediately and p45/60 was in same envelope????? premature?? before holiday pay ,owed wages etc was sorted? now she has to borrow money to pay her bills again, due to employer not getting this sorted. is there anything that can be done regards compensation?

thankyou once again for your anticipated help..tony.