Employment tribunal and 'without prejudice as save to cost'

[mum88]

Hello,

I am supporting my husband in a tribunal claim. They have recently instructed a solicitor and we received an email yesterday basically telling us to withdraw the claim or they will put an order for costs against us. I find this bullying tactics, seeing as we are representing ourselves and they are a lawyer. My question is, it is an out of time by over a year claim based on being mentally unwell, and relating to disability discrimination. It is obviously not a strong case, but we feel justice is needed as it has destroyed his life. Surely, if the judge thinks it is so weak that it isn't likely to succeed they would have struck it out straight away, or struck it out after the telephone call. it is going to preliminary hearing in a few months, I really don't want to withdraw. To me this is not being able to have a fair say over something we believe in. Any info would be appreciated. many thanks

[andreaj1911]

Hello,

There is some interesting information here about ETs and awarding costs that might help you:

[ULA]

Unfortunately this can sometimes be a tactic where the repsondent is represented, however it does not stop them from having the ability to put in a costs order to the tribunal.

There may be some aspect of the claim that the judge may think warrants further consideration hence moving to a preliminary hearing, part of the scope of that will be to consider whether a claim or response, or any part should be struck out under rule 37 of the Employment Tribunal Rules of Procedure 2013 (amended Feb 2017). This same document at rule 74-76 also covers costs orders.

If you have not already done so i would strongly recommend that you at least download a copy of this document as you may find it very useful to refer to in terms of understanding the rules and procedures of an employment tribunal.

https://assets.publishing.service.go...dure-rules.pdf

[mum88]

Thank you for your reply. We have looked at that before but will familiarise myself with it again. After a conversation, we will go as far as we can with this case so if it gets chucked out at least we have tried.
I am not sure how to respond, is less more? They have stated in the letter why they think it is weak and have not got a case ect and we don't really want to give away our evidence that we are currently collating to present as the prelim hearing... I have done loads of research and found a case where they were almost 6 years out of time but held one bit of evidence we have got and were allowed to go to full trial, so although on the face of it ( and what they think) it looks weak, we do have some good evidence to back us up.

When I looked up previous hearing results on gov website this particular company have had many withdrawn over the last few years, initially I thought they must have settled out of court but now I believe they applied this tactic and frightened the claimant off.

[ULA]

There are a few ways to handle this:

1. You could just acknolwedge receipt of their email and leave it at that, depending on what else is in the contents.
2. Point out that at this stage the claim has not been struck out as being too weak and that if that is the case then this is something that would be for the judge to decide at the preliminary hearing.
3. In both cases you could point out that you are aware of the courts ability to award a costs order, however you find the way they have approched this in their correspondence (I am not basing this on having seen what they have actually written) to be intimidating particularly as I (your husband) am a litigant in person.

[mum88]

Thank you. I've just got one other question... the ex employer is saying they dont believe that he was classed as disabled, hes previously had CBT for a mental health problem in 2012 and then went back to the doctor in 2018 as he got worse, they dont make many notes on the GP records but his disability was noted on there 3 weeks prior to the event, and hes written an mpact statement and has loads of evidence after the date in question but will they judge say that is enough? Even though the respondent is saying hes not disabled. I am not sure as his wife if I am able to write a statement to support what he is saying? He definitely has been very unwell for a long time and it has been very difficult to live with at times.

[ULA]

Has your husband ever let his employer know that he has a disability as defined under the Equality Act 2010 which is, you are disabled if you have a physical or mental impairment that has a substantial and long-term negative effect on your ability to do normal daily activities.

If not then the defence from his employer is likely to be on the basis that the employer could not know nor could reasonably be presumed to know about his condition. You would need to prove that they did know he had a condition that comes under the definition of a disability in order to bring a successful disability discrimination claim.

Witness statements need to be provided by people who witnessed the events at work for which the claim is being made.

[mum88]

No they did not know because he didnt want to tell them. He told them at the disciplinary meeting, so they could have referred him to Occupational health or asked for his GP records then before they sacked him but they just went straight ahead to sack him.

[ULA]

Not knowing the circumstances of the dismissal it is hard to say whether they should have taken that course of action.

Did your husband appeal the decision and raise this as to why they had not referred him?

[mum88]

We weren't aware of the option then of OH it's only since doing a lot of research weve found it out. He did appeal yes, based on mitigating circumstances I think? I'm not sure how much to say incase they read these forums but it was around an act that amounted to gross misconduct that was caused by his disability, that he was dismissed for, without them taking into account his disability as apparently he 'wouldnt learn from any sanction short of dismissal' which is crazy considering he worked there 10 years and hasnt done this before xx

[Promula]

Costs are only usually awarded if you act unreasonably. It's very rare for discrimination cases to be struck out unless they're hopeless. Lawyers love to use scare tactics to try to intimidate. I've a lot of experience with exactly this.

[mum88]

Can i just ask your opinion.... I know you can't start adding new information to a tribunal claim but I am just wondering a few things since doing this trial with my husband.

He worked nights for the past two out of his 10 year service and was essentially a lone worker, he had to stay awake all night (for 8 hours) 10pm till 7.30am, are they suppose to give him a break during that shift? He never once got one as no one available to relieve him, I've heard about compensatory rest if he wasnt allowed a break but he got no more than a normal hourly rate of £8. Something no time time enhancements or any other payments. I am just curious if this is against the 'law' or perfectly acceptable.

[ULA]

What sector was your husband working in as there are a few that are excluded from the Working Time Regulations (WTR) which are those that apply in regard to your query?

However that aside the WTR sets out a maximum working week which is not more than 48 hours a week on average - normally averaged over 17 weeks (albeit an individual can "opt out"). In terms of breaks a worker is entitled to 1) a break of at least 20 minutes if they work 6 hours or more 2) 11 hours rest between working days 3) either uninterrupted 24 hours without any work each week or 48 hours without any work each fortnight. In addition, for a night worker limits also apply to the number of hours worked. As a night worker, you must not work more than an average of 8 hours in a 24-hour period. Agains as a rule this is calculated over a period of seventeen 17 weeks, although it can also get worked out over a longer period - up to 52 weeks if agreed bewteen employer and employee.

In regard to compensatory breaks this is a useful link to explain:

https://www.gov.uk/rest-breaks-work/compensatory-rest

[mum88]

Hey guys we have a preliminary hearing in just over a week. The lawyer acting on their behalf has emailed us to disclose the documents we are relying upon for the preliminary hearing. I have gone through the orders and can only find orders relating to the disclosure of documents for the proper hearing. They have emailed again saying we must cooperate?

Can anyone advise if we must, or as it is only a preliminary they dont need to know? Of course we will share documents as per order prior to the final hearing if it doesnt get thrown out.

Many thanks,

[ULA]

Have you had directions from the Tribunal for the conduct of the prelim hearing or been sent a questionnaire, which goes to both parties and that has to be completed and returned to the Employment Tribunal some days before the Preliminary Hearing is to take place?