Advise regarding disclosure

[Cazzy]

Hi, my son is currently in the middle of taking his former employer to tribunal for unpaid wages and unfair dismissal. So far his employer has missed the deadline for the ET3, although with representation has submitted another ET3 and asked for an extension to the deadlines. My son has emailed the court with an objection. No news on that yet.
The employers ET3 was sent after my son had submitted his evidence. He received no evidence back from his employer or representative. He has since been sent a draft trial bundle on the day of the deadline. I’m this they have included a draft contract of employment, my son was never asked to sign one. He worked there 2 years, last year as part of an apprenticeship.
My son has asked for the contract to be excluded as had it been given he wouldn’t of signed it. They have refused so can we request that if it is entered as evidence that they also include signed contracts from their current employees. I know for a fact that the remaining employees have all refused to sign this due to the 2 year non compete clause in it.

[ULA]

Couple of points:

Tribunals at the moment are really backlogged so anything send into them make take a while to process and get a response back out.

Has your son ever seen or been given a contract of employment signed or otherwise?

It is doubtful that you be able to get signed contracts from other employees even if there are any as they would hold personal sensitive information under GDPR.

[legalwoo]

Whether or not the contract your son signed is included in the bundle should not really be a concern to you because if he did not sign the contract then that point may simply be raised at the hearing itself. This may actually be a benefit rather than a disadvantage.

As far as requesting documents is concerned, you may request any documents you believe have bearing on proceedings. If the respondent will not satisfy your documentary needs you ask the ET for a preliminary hearing or perhaps the issue could be resolved without a hearing by correspondence, not to sure but as per the Employment Tribunal Rules:

Disclosure of documents and information 31. The Tribunal may order any person in Great Britain to disclose documents or information to a party (by providing copies or otherwise) or to allow a party to inspect such material as might be ordered by a county court or, in Scotland, by a sheriff.

GDPR does not override ET powers if they have good reason but I should not think GDPR will even enter as a concern in this case since you do not need copies of contracts of individuals to show there is a difference between your sons old proposed contract and the contracts of new employees.

[ULA]

Some point for clarification:

If your son has not seen or been given the contract that was in the trial bundle as per my question to you in my post #2 then this is a point that he can make within the content of his witness statement.

You do not need to ask the ET for a prelimainary hearing in the event that documents you request from the respondent, which are believed to be relevant to the claim, are not forthcoming. What you need to do is make an application to the Tribunal to make an Order for Disclosure on the repondents to produce the documents. In that applicatation you will need to set out the steps you have gone through already in asking the respondent for them, list the documents you are requesting and why they are relevant to the claim. Please be aware that any correspondence to the Tribunal needs to be sent to the respondent as well in accordance with rules 30(2) and 92 of the Employment Tribunals Rules of Procedure 2013, and in your application you need to confirm to the Tribunal that you have done this.

[Cazzy]

Thank you for the replies. My son asked several time at the start of his employment about contracts but was never given one. The company claim in their ET3 it was an oversight and had he remained employed this would of been rectified. They have only now given contracts to their remaining employees. I think he is just going to address this point in his witness statement.

Apart from this contract, they have added no other evidence to support their case.

He got an email off the tribunal on Friday and their request to extend the deadlines and have both ET3s accepted has been approved. 2 weeks have now been added to all deadlines.

They owe him just under a thousand pound in wages they provided payslips for during furlong but didn’t pay into his bank. They also accept they owe holiday pay but have not calculated the amount as yet. They also just took him off the books with no notice and never told him he was no longer working for them. He only found out when checking his gov gateway account.

Although he feels he has a strong case, he is now concerned about being unrepresented as he can’t afford legal advice and they can.

[legalwoo]

You may have a claim for redundancy pay or unfair dismissal. redundancy pay is capped at ~£16K and unfair dismissal is a years pay or ~£83K which ever is smaller.

You can not get free legal aid except for discrimination in ET. On the other hand a union may represent you at ET hearings at no cost.

You may be lucky enough to find a law firm who will take your case on a no win no fee basis. Perhaps Leigh Day may help you; they are quite good with employment and you could email them. Otherwise you may get help finding other no win no fee solicitors at the law society.

The only remaining option is self representation. In this case You may want to start by looking at the "guide for litigants in person" however that could cost you a lot more time than it is worth in regard to all the required researching.

[ULA]

Sorry but again points for clarification:

Your son would probably already have had to belong to a union for them to take on the case to provide representation. Does your son by any chance happen to have legal insurance as part of any insurance policy he may have? If so it may be worth him speaking to the insurance company to see if the policy would cover representing him.

Redunancy pay is based on length of service and age and here is a link to calculate the potential value of just the statutory redundancy payment he would be due. Your son would also be entitled to notice pay and any accrued but untaken holiday.

https://www.gov.uk/calculate-your-redundancy-pay

Calculating the value of an unfair dismissal claim is much harder and the tribunal would take into account a number of factors before deciding on the level of any award. If in the ET1 your son is claiming unfair dismissal, I would just suggest from a practical perspective, if he is currently looking for another job that he keeps evidence of time spend looking for jobs, all the job applications he has made, how many interviews he as attended etc. One of the things he would need to prove is that he has tried to mitigate his loses by trying to find other employment the above evidence would help towards that.

Your son would not be the first person to represent themselves at an employment tribunal and this forum has provided help to individuals going through that process.

What happened in the early conciliation phase?
Did the company engage with the process at all?
Even though an the ET claim is in the system, ACAS can continue to try an negoitate a settlement even whilst the ET process continues.

[Cazzy]

Thanks. Unfortunately he’s not a member of a union and as he still lives at home, the only insurance he has is his car and it doesn’t cover legal unless it’s a motoring issue. So it’s looking like he will be representing himself.

As far as the early conciliation phase, he decided against mediation. In hindsight that was probably a mistake but he was angry at the way he had been dismissed and that he was still speaking to his former employer without them even mentioning he had been dismissed. They spoke with acas and admitted that they owed him wages but made no offer to pay.

He has records of his job searches and emails he has sent enquiring about work. The only other thing that could possibly go against him is that he was offered a weeks work, working out of the area for one of his bosses friends. At the time he turned down the offer as a) he couldn’t afford to put fuel in his car as he hadn’t been paid in months b) he was under the impression he was still employed at the time (offer was 4 weeks after they ended his employment) c) the way the offer was put to him was that he would be paid for this weeks work by his former employer. He advised the company that he was unable to accept the weeks work as he had stuff to sort out with his boss. His thought at the time was he wasn’t going to do another weeks work for them and risk not getting paid as he was already owed almost £1000.

The company have made a very low offer to settle and have told acas they are eager to settle the matter. My son has turned down their offer and put in a counter offer. Hopefully they can negotiate an amount they can both agree on.

Should they come to an agreement is there anything he needs to make sure is included.

Thanks again for all the help.

[ULA]

Glad to hear he is keeping records of his job search. He has reasons that he can set out to justify why he did not take the work that he was offered.

At least there is negotiation still going on and as you say hopefully they come to an agreement that your son is happy with rather than having to go through the stress of dealing with a tribunal process, which will not happen quickly, as they are very backlogged at the moment.

If a settlement is agreed via ACAS then it is likley that the terms of the agreement will be set out in what is called a COT3 agreement. This is a document setting out a legally binding agreement to settle a potential or actual claim. Both parties sign the COT3 form as a formal record of the agreement reached following conciliation with the assistance of the ACAS officer. Signing a COT3 will mean your son would not be able to bring any future claim in relation to matters covered under the agreement.

A word of caution that an agreement will become binding at the point both your son and his ex-employer confirm to ACAS the terms upon which an agreement has been reached, even before these terms are documented by way of a COT3 form. As such, the agreement can come into effect via a telephone call or even by email. Also, once agreed at this stage, the terms cannot be changed and your son would have no further claim against his employer. Therefore it is really important that he is happy with the terms reached before communicating this agreement to the conciliation officer and the COT3 is prepared.

[Cazzy]

Just wanted to say thank you for all the help. Your advice helped him have the confidence to stick with it and hold out for an offer that he feels is fair. A settlement amount has now been agreed and cot3 has been drafted and agreed. He feels this is a good result and can now focus on finding a new job.

[ULA]

Thank you for the update and glad to hear that everything is successful resolved for your son. Best of luck for him finding a new job