Failure to make reasonable adjustments, dismissed, dithering over grievance

[ULA]

Do you have any indication that your current employer is unhappy with your work, ability to get on with work colleagues, attendance etc? If not and they are being supportive of you making a request for reasonable adjustments if necessary then you should take this as a positive sign. You have not stated how long your probationary period is for, however to reassure yourself that all is well, you could request of your supervisor/manager a meeting just to check that they are happy with your progress so far and ensure that there are not areas they think need to be improved and if there are what do you need to do to improve.

In regard to the pursuit of an ET claim then I would refer you back to my post #10. You may also want to consider that currently with the backlog in the Tribunals is is unlikely your claim would be heard until some time in 2022 and potentially towards the end of the year and as in making any legal claim, can be a very stressful process for a litigant in person. You need to consider whether your aggrieved feelings are worth you pursuing a claim and that is only a decision that could can make.

[Bronwyn]

Current stage - ET1 submitted last September, Respondent failed to respond before the deadline, but appealed (giving a family bereavement of the one person apparently dealing with the response as a reason - this is in a global company ...) and the judge has just accepted. My preliminary hearing is set for a next week, and I have no legal/union support so am going in alone.

I have a question regarding my respones to their response - the judge has asked that I give a response, and I have screengrabs/emails that prove that they are lying. Can I enclose these or would that leave me open to being pursued by the respondent for breaching my contract? It contains a section on not capturing client data, but this is data only referring to the employer's communications with me.

Presumably anything they've sent me previously in the DSAR is also clear to submit?

Also, is there a 'how to' guide for tribunals to help me understand what evidence/information to submit and what to say?

[ULA]

Has the response been just in the form of of the ET3 or have they also submitted what is called a Grounds of Resistence (GOR) document?

What you will need to do is go through each point made in the ET3 and/or GOR and detail any response you have to what your ex-employer has stated.

You have to make sure that evidence you provide has not been obtained in contravention of any policies that were in place during your employment and therefore you should not have in your possession. Yes anything that has been provided by the employer under the DSAR can be submitted if relevant to the response/your claim.

There is not how to guide but you have access to support via this forum and this thread. You should also make yourself aware of the contents of the document linked to below:

https://assets.publishing.service.go...tober-2021.pdf

[Bronwyn]

The reply is an ET3, which I can see contains a fair bit of factually incorrect information (the even have the wrong start-of-contract date). I've also been sent an agenda filled out by the repondent, do I need to fill one of these out? I haven't received this from the ET, just been CC'd into the respondent's communication to the ET.

It seems the main point of the preliminary hearing is to request proof that I have the condition I claim I have. Can I send my diagnosis report to the judge prior to the hearing? Or do I wait until the hearing itself?

[ULA]

You should have been asked to complete an Agenda for the case Management at a Preliminary Hearing. Both parties need to do this and submit to each other and the Tribunal to arrive not later than 2 days before the hearing. For expediency I have linked you to one below:

https://www.judiciary.uk/wp-content/...g-20170810.pdf

Is your Preliminary Hearing (PHR) in person or over video link?

[Bronwyn]

Unfortunately the preliminary hearing is on Thursday. Why wasn’t I sent this by the ET? I’ve been checking my junk Mail daily and definitely haven’t missed correspondence.

The agenda suggest that the preliminary hearing is seeking to establish proof that I have condition covered under the EA. Should I forward the judge the diagnosis letter I have before the hearing?

I was also let go from my job this week, so my precious fears were well-founded. I have union representation this time and have been encouraged to proceed with a grievance (again, for failure to make adjustments), but of course the union is understandably unable to help with previous ETs.

[Bronwyn]

The hearing is via video link also.

[ULA]

I cannot say why this has not been sent to you. I would suggest that you get this completed and sent over as soon as possible tomorrow along with the medical evidence you mention. Remember to all copy in the Respondent. Your case number and who the parties are needs to be put in the email subject line.


Sorry to hear about the situation with your most recent job.
.

[Bronwyn]

I contacted the ET today and it seems that I did not receive the notification of hearing (sent last year), likely because it was delivered to my junk email. They've now forwarded that to me, and a blank agenda, and asked that I email it to them ASAP so that they can forward it the clerk ahead of the hearing.

I will be sending proof of my disability diagnosis (this is in the form of a letter from my consultant to my GP so will hopefully suffice) along with my completed agenda, and I'm compiling and indexing all emails/documents/evidence this evening to hopefully enable me to refer to relevant information easily if needed.

The notification of hearing states "unemployment judge will discuss the claim and response. The judge will make orders to prepare the claim for a hearing and will fix a date for the next hearing" and "the agenda shows what types of orders might be made at the hearing and what information you will be expected to provide at the hearing".

Presumably the types of orders/information to be provided is what's included in the blank agenda? This page https://medium.com/adviser/open-and-...e-5a292eb20f4f seems quite helpful in understanding what I need to provide (and hopefully it's accurate), so I'm using the ET3 and the respondent's supporting info when considering if I need further information.

I'm not entirely sure what remedy I can seek at this point, nor whether I should disclose that I've lost my most recent employment. It is technically relevant as I received psychological support whilst in the post due to poor confidence and its resulting high stress impacting on my ability to perform. However, would stating I've lost my job be used against me by the respondent?

My claim is for failure to make adjustments and injury to feelings,. Their ET3 confirms that I did request an adjustment, but they declined it and instead suggested an alternative adjustment (one which I hadn't requested, nor felt would help). The ET3 makes lots of 'it is not known and not admitted statements (most of which I can prove with evidence), and ends by saying I will be required to set out what adjustments could have been made that would have prevented me from being disadvantaged with relation to the dismissal criteria.

I realise that the PH/ET will only deal with points of law and not subjective opinions/feelings, so I'm concerned at how to present my evidence in the correct manner. Is the fact that I have proof that they didn't respond to my repeated requests for help and assistance with how the workplace was affecting my mental health enough? Or will I have to prove that I was unfairly disadvanataged (this is difficult as they are still yet to disclose fully how I was selected for dismissal).

I'm sorry for the clumsy email, I'm quite stressed and anxious.

[Sky90]

I have no legal qualifications, however I have (am still) going through the tribunal process with my previous employer for failure to make reasonable adjustments. It’s an extremely stressful situation and it really knocks your confidence.

I had a preliminary hearing and unfortunately the respondent did not agree that what I had provided proved disability (PIP award letter for severe crohns, and bipolar, and letters from consultants, and an occupational health report from my employer stating I met the criteria for disability). They requested my medical records, and again said these were not proof. I then had to have medicals. It was only at my tribunal the respondent agreed I was a disabled person at the relevant times. Your case may be different, and the other side may not be as aggressive, however if they are, please do not take this personally, unfortunately the other sides legal team have a job to do and that is to make sure their client doesn’t lose.

I was partially successful, and now have to have further medicals and then a remedy hearing. The first medicals were merely to find out of I was disabled at the relevant times. These ones will be to determine if what happened with my employer caused my health to deteriorate.

Due to how my employer acted, I was left with PTSD, severe anxiety and depression and a huge amount of shame. My currently work are extremely supportive, however I am terrified that it will all happen again. Please keep in touch with your GP and make them aware of the stress you are under and your anxiety. They may be able to provide someone for you to talk to try and help your mental well-being.

In terms of remedy, it is normally things like loss of earnings, injury to feelings and possibly injury. If what happened had had a detrimental effect on your health and your ability to work, then I think that would be classed as an injury.

[ULA]

Sky90 thank you for sharing the experience you are having with your Tribunal process. Shared experience is really helpful for others going through a similar type of claim.

Bronwyn sorry to have been able to respond before your PHR, please let us know how it went.

[Bronwyn]

Sky90 Thank you for your reply. My PH was similar in that the respondent has requested proof of my disability. I have to submit medical records and explain how I was affected day-to-day, whether medicated etc within a month, and then there'll be a further PH to discuss that. I've also been asked to submit a schedule of loss.

The judge seemed concerned that I did not have legal representation, and strongly suggested I find someone (and has included a short list of possible support in the case management/orders sent after the PH). Unfortunately, I can't see that it's included in any of my insurance policies, and the only other way I'd be able to finance legal help is on credit card (and then only if I knew there was a strong likelihood of not losing the claim). Unless there are reputable no-win-no-fee options?

Even though there wasn't logically anything to be anxious about at the PH, it still knocked me sideways and I wept throughout. Losing my most recent job in the last few weeks has compounded the feelings of stress and failure that losing this tribunal job prompted. My union is suggesting that I've been discriminated against in the most recent job too, and will fully support me in pursuing a claim there, but I need to be very careful of managing my own stress levels too so am undecided on that one yet.

I'm not sure what happens next now. After I submit medical evidence to prove that I have two long-term conditions (both of which I am medicated for - one is a lifelong hereditary condition, the other I have had already for 6 years with no suggestion of being cured), presumably the next PH will consist of the respondent denying discrimination/failing to make adjustments? Is the request for a schedule of loss usual? I feel that the reason I lost my recent job is directly due to the confidence blow caused by losing the first job, but how do I prove that/include it in a schedule of loss? I didn't bother my GP about this much either because it was so difficult to get appointments during the pandemic, so have no 'proof' of the distress caused other than calling my partner as witness.

[Sky90]

Bronwyn

If you do go as far as tribunal:

In terms of representation. I had a lawyer, and I wasn’t happy with him, he was out of his depth dealing with the aggressive team my employer used. I think it is possible to put together your case without legal representation, however when it comes to tribunal, I would advise trying to find someone to represent you. I got a barrister via direct access. This means that you do everything, but they’ll look through your bundle and then talk you through how they’re going to argue your case and then represent you. My barrister highlighted things my lawyer had missed and I think having him really helped me win my case. It also meant that once k was cross examined, I could tune out if I needed to. Also, if the other side said something, I could message the barrister and he would decide if it was worth bringing it up.

Direct access barristers can be found online and the cost will depend on their experience and the length of your tribunal. Mine was 5 days.

Make sure you have support with you. Tribunal cases are public, if you’re they’re in person, people can come in and watch. If it’s online, then people can log in and watch. I just had my barrister, and the other side had 3 witnesses, a barrister, a lawyer and 2 employee relations managers. It was intimating, until some unknown person logged in to watch my tribunal. I don’t know who it was, as they don’t need to turn their camera on or say who they are, but them being there made me feel less alone.

Some advice for representing yourself at tribunal with regards to cross examination. Don’t try to answer questions if you don’t know the question being asked. My barrister said if you try to answer what you think they’re asking, you could end up making yourself look bad. Also it’s about being a credible witness. Does the judge think you are a credible witness. This means answering the questions asked, and trying not to trail off. The other side tried to shame me for how I answered a question, but thankfully the judge argued that what I had said was relevant a sufficient.

In terms of what happens next, it’s depends on the respondent. They may accept disability, but deny they didn’t give you reasonable adjustments, or they may say that your evidence doesn’t prove you were a disabled person at the relevant times. If this is the case, they may request medicals. With regards to a schedule of loss, yes it is normal at this stage.

I saw my GP when I was initially signed off, and because I was in a situation that wasn’t improving, I saw no point in seeing my GP as I felt I was wasting his time, because my mental health was not going to improve whilst going through what I was going through. I wrote a letter to my GP and explained what was going on and how it made me feel. I then booked an appointment to discuss treatment options

I suggest writing to your GP and explaining why you haven’t contacted them sooner. Explain what you’re going through and how it’s making you feel. This way the GP can read it before you see them. It’s a chance for you to provide a lot more information than you could do in a 10 minute appointment.

[ULA]

Bronwyn the medical records and the explaination of how your medical conditions affect you on a day-to-day basis are going to help support your claim that you are disabled as defined by the Equality Act 2010 (EqA). The latter document is under your control to clearly set out how your daily life is affected including general activities then any impact within a working environment.

If the Judge after the next PH determines that these reports support your being disabled under the EqA then as you say the respondent will then need to prove that they did not discriminate against you as a consequence of your disability.

Yes the preparation of a schedule of loss is common at this stage, although it can be updated as the process moves on given the backlog in the Tribunal system at the moment.

I would say that if you have been given Case Management Orders (CMO) for the PH with deadlines for documents to be provided please make sure you meet them and provide copies to the Tribunal and the respondent at the same time.

It was a responsible judge that showed conern for you being a litigatant in person (LiT) and given that discrimination can be quite complex. Even if you cannot afford to look at support in these early stages I would consider what Sky90 has said about a direct access barrister in the lead up to a final hearing.

Please do feel free to keep coming back to this thread as often as you need to ask any questions as you go through this process, you are not on your own.

[Bronwyn]

Bronwyn

If you do go as far as tribunal:

In terms of representation. I had a lawyer, and I wasn’t happy with him, he was out of his depth dealing with the aggressive team my employer used. I think it is possible to put together your case without legal representation, however when it comes to tribunal, I would advise trying to find someone to represent you. I got a barrister via direct access. This means that you do everything, but they’ll look through your bundle and then talk you through how they’re going to argue your case and then represent you. My barrister highlighted things my lawyer had missed and I think having him really helped me win my case. It also meant that once k was cross examined, I could tune out if I needed to. Also, if the other side said something, I could message the barrister and he would decide if it was worth bringing it up.

Direct access barristers can be found online and the cost will depend on their experience and the length of your tribunal. Mine was 5 days.

Make sure you have support with you. Tribunal cases are public, if you’re they’re in person, people can come in and watch. If it’s online, then people can log in and watch. I just had my barrister, and the other side had 3 witnesses, a barrister, a lawyer and 2 employee relations managers. It was intimating, until some unknown person logged in to watch my tribunal. I don’t know who it was, as they don’t need to turn their camera on or say who they are, but them being there made me feel less alone.

Thank you for this, I didn't know that it was an option to just have representation at the tribunal itself. I'm sure I could assemble documentation myself, but then again I'm not sure what's relevant and would worry that I'd left something out that could be relevant. I would also be concerned at the legal representative not fighting strongly/not being experienced enough for such a. claim. My ET was originally set for a 3-day period, although I can't imagine what could take that long, presumably the cost would be in the £1000s not the £100s for this? I have asked that it not be heard publicly as I haven't disclosed my disabilities to all friends and family, but it sounds unlikely that this would happen. I'd also be fearful of future employers searching for my name and avoiding hiring me because of this.

Bronwyn
In terms of what happens next, it’s depends on the respondent. They may accept disability, but deny they didn’t give you reasonable adjustments, or they may say that your evidence doesn’t prove you were a disabled person at the relevant times. If this is the case, they may request medicals. With regards to a schedule of loss, yes it is normal at this stage.

The respondent's representative has stated that medical records will suffice as evidence, and that no further medical would be necessary. I have evidence of requesting adjustments specifically, and these weren't made (but instead they suggested an alternative adjustment which would have actually made things worse), and also I have evidence of asking for support several times that they didn't respond to at all. The SAR did provide me with internal emails between managers who called me 'difficult' and 'challenging' in response/defence to my request, although I was never sent the outcome of this communication at the time.

BronwynI saw my GP when I was initially signed off, and because I was in a situation that wasn’t improving, I saw no point in seeing my GP as I felt I was wasting his time, because my mental health was not going to improve whilst going through what I was going through. I wrote a letter to my GP and explained what was going on and how it made me feel. I then booked an appointment to discuss treatment options

I suggest writing to your GP and explaining why you haven’t contacted them sooner. Explain what you’re going through and how it’s making you feel. This way the GP can read it before you see them. It’s a chance for you to provide a lot more information than you could do in a 10 minute appointment.

I saw no reason in visiting the GP as the stress of attempting to make an appointment (which would usually take c.200 attempts to get beyond the engaged tone before being placed on hold) caused huge anxiety by itself, and the only thing they'd have done would have been to increase my medication which is already near maximum legal dose. So, I just unloaded on my partner instead and will be calling him as a witness to testify to this stress. Whether this will be considered a reliable witness I don't know.

I'm so used to dealing with things alone, it had never occurred to me that I may one day need to provide proof of my process. I know for sure that being dismissed from an awful job that kept on people who had never worked in that field before/had no qualification ahead of me with considerable experience, qualification and results crippled my self-confidence, and I'm still trying to work out how to get past that. How can I evidence that for a tribunal though?