Protected Disclosure detriment claim

[gban]

A bit of background to the case. I am representing my wife in a claim for detriment for her making protected disclosures to the CQC when working in a care home.

My wife started working in the care home, run by the biggest care home provider in the UK in February 2021. The standard of care was shocking, there were many things wrong and dangerous. The most serious concern my wife had was how the medication was being given to the residents. It was being left with them and they did not have the capacity to take it themselves. She was reporting this and many other things along the way to the manager of the care home but nothing changed ,so in June 2021 she reported all the things she had been reporting to the manager to the CQC.

My wife was handed a letter to attend a probationary review meeting, two days after the home manager became aware of her contacting the CQC. This meeting was to take place five days after being handed the letter which was my wife's day off work. My wife attended the meeting and was dismissed with immediate effect and told to leave the building immediately. My wife asked for the minutes to the meeting but was told that because she was on probation they do not have to provide them. The reasons given were completely fabricated.


Over the next ten days, my wife phoned and wrote to both the home manager and the HR department of the company several times but was completely ignored so we obtained the certificate from ACAS to lodge a tribunal claim. The company only responded when I wrote a formal letter myself to them outlining the case and giving them five days to respond before i filed the ET1.

The minutes to the meeting they provided were completely made up so I filed the ET1, claiming automatic unfair dismissal and i let the company know I had done so. One of the emails my wife sent them that they ignored was an appeal,l so after finding out I had filed the ET1 they invited my wife to an appeal meeting with the area director and the HR manager. We had lots of evidence contradicting everything that the home manager had dismissed her for, in the way of text messages, one of which was two weeks prior to dismissal, asking my wife to take on a more senior role. My wife attended the meeting and was subsequently reinstated even though she had made it clear that she didn't want her job back and that the purpose of the appeal was to show she had done nothing wrong and to get an apology from the home manager. We have in writing from the area director that every reason she was dismissed for was untrue.

My wife then wrote back to them refusing reinstatement and we told them that we were continuing with the tribunal claim for unfair dismissal, not knowing that the offer of reinstatement makes the dismissal vanish so there was no claim for unfair dismissal. It was clearly a tactical offer of reinstatement.

We received their ET3 about 2 weeks later and they were accusing my wife of a whole new set of lies, some of which were shocking and completely untrue again.

A preliminary hearing was scheduled that we attended, their solicitor didn't but sent a junior out of the office to listen. The judge was not happy with them and he explained about the offer of reinstatement making the dismissal vanish and he amended our claim to a detriment claim instead. I then started reading about detriment claims online and i realised that in their ET3 they say that the company took all reasonable steps to stop any detriment, which is the statutory defence to these claims so I applied to the tribunal to get the home manager added as a respondent. Their solicitor emailed several times asking me to withdraw the application if they withdrew the reasonable steps defence. I declined their kind offer so they sent an email to the tribunal objecting to my application and giving silly reasons for their objection, one of which was the address being wrong for the home manager.

A preliminary hearing was called to decide whether the home manager will be added but a week before the hearing their solicitor wrote to the tribunal with an application from themselves for the home manager to be added which i agreed to so she was added as a respondent without the need for a hearing.The tribunal ordered them to put in the home manager's response within the normal 28 days. In these 28 days was when the bundle needed to be made and agreed and it was, with a lot of evidence from us proving everything we said to be true and everything they said to be lies again.

They put in the same response as the first time which i objected to because on her viewing the evidence i had provided, it was obviously all lies. The judge wrote back saying the respondents are entitled to use the same response for the second respondent as the first which I was surprised at. In my objection, I outlined some of the main reasons, attached the bundle and referenced the reasons to the documents in the bundle. It is so clear from the bundle that my wife had done nothing wroing.

I have prepared my wife's witness statement and was wondering if anybody on here could review it for me to see if its acceptable and in the correct format etc.I can send the bundle of evidence with it so you can see how clear cut the case is.

[gban]

Anybody help ?

[atticus]

What exactly do you want?

As I read your post, you are asking for a review of a draft witness statement. Checking whether something is in the correct format (what do you mean by etc?) is relatively simple, and you can probably find guides online*. Anything more detailed than that may well require several hours spent reading the statements of case on both sides and the evidence bundles.

* example guidance: https://www.citizensadvice.org.uk/wo...ment-tribunal/

[gban]

I guess I want somebody who sees these witness statements regularly to have a look at it to see if it is strong enough. The way these people have treated my wife is appalling but I am wary of going in to hard or is it acceptable ? This is all new to me so any advice would be appreciated.

[atticus]

The point surely is not to be "hard" but to be clear and above all factually accurate. That should convey the strength of the case. You want to put the evidence to the Tribunal that will enable it to understand what your wife says and to draw the conclusions she asks it to make.

Have you read that CAB page, link in my previous post?

[gban]

Yes I read that a while ago. The respondents ET3 is absolutely shocking, aggressive and full of “hearsay lies”. I have been factual in the ET1 and in the witness statement and in my opinion it is perfectly clear what has happened. I’ll stick to the facts then. One more question. I’ve received two offers of settlement. Would i be seen as unreasonable in the tribunals eyes if I refuse all offers of settlement and proceed to the full hearing ?

My stance on this is that I want these people to face a judge for what they have done and to make them think twice before they treat anybody else like this again.

[atticus]

Remember that this is not your case but your wife's.

She needs to evaluate offers carefully. There may be good reasons to refuse an offer, and certainly I am not saying that any offer should be accepted, but on the other hand settlement brings certainty and finality, and avoids the very real stress involved in going through a hearing, particularly if all kinds of sh!t is being thrown at her.

That is not quite an answer to your question. Perhaps someone else can add a comment.

[gban]

That is our stance. My wife is in full
agreement that these people need to be brought to task. My worry is that this would be seen as unreasonable conduct and trigger a costs application.

The respondents have said in their settlement offers that if we refuse the offer and we receive less at tribunal then this would be seen as unreasonable conduct in the eyes of the tribunal and they will be awarded costs ?

[ULA]

Hi gban having reading read the thread let me break down the component parts you are currenlty asking for support on.

Witness Statement (WS)

n terms of the WS for an ET claim there are two things to bear in mind one is layout and the second is content. On the layout the WS must be written in the first person perspective, use one and a half line spacing, use a font that is not too small to read (maybe 11/12 point font) and a left hand margin for the tribunal to makes notes.

The WS is an account of the events that took place at work, and also what has happened since then. It should be in chronological order, with short numbered paragraphs, for example:

1. On 20 November 2021, I did this, or I did that.
2. On 30 November 2021, Mr Jones of the Respondent did this or that.
3. etc

In the content the aim is not to repeat what has already been stated in the ET1 claim, however what you want to do is:

1. Add in the detail or any additional information surrounding the events of the claim being made. Be very specific about dates/time/potential witnesses.
2. Pick up on relevant comments on the ET3 and defend them with reference to point 1 above as needed.
3. Contain details of all the relevant evidence to support the claim.
4. Leave out anything that is not relevant to the issues of the case.
5. Identify the source of any information which your wife does not know first-hand.
6. Detail your wife's attempts to mitigate her loss (i.e. get another job) if appropriate to the claim.
7. Comment on the documents disclosed by the other side, which will not have been seen at the time the ET1 was submitted. If there are any documents which are clearly missing, and perhaps withheld intentionally then comments can be added about them.
8. Comment on any written answers or further information obtained from the Respondent after the proceedings started.

When you are commenting on the documents, it is good practice to refer to page numbers of the bundle, as the judge will be grateful for this time saving exercise when trying to cross reference your statement with the paginated bundle of documents, which will be used at the Tribunal.

Also consider detailing in your WS :

1. What are the legal issues in the claim, what sections of the law set out the grounds of the claim?
2. What is it that you must prove to the ET?
3. What documents (evidence) in the bundle back up what you need to prove?

Do not:

1. Waffle
2. Waste words on repeating agreed facts such as dates of meetings etc. You can touch on those briefly.
3. Include anything irrelevant.
4. Make any generalisations, everything must point to something of relevance to your claim.

Also just double check, on occasions I have seen Tribunals put word limits on WS.

Settlement

The process of trying to reach a settlement does not stop at Early Conciliation and if an agreement can be reached before a Tribunal hearing that is encouraged.

As has already been stated all offers of a settlement need to be consisdered by your wife very carefully in the context of the merits of her claim, the value of her claim against what is being offered as a settlement and to holt the persuit of a claim that has no merit or what is being offered is consistent with the value of the claim and therefore would waste the time of the Tribunal to pursue it any further. Sorry if this sounds harsh but this is what any Tribunal will consider if they feel your wife has unreasonably not accepted an offer of settlement in advance of a hearing.

It is not about as you say "bringing them to task". A Trbunal will not tell them they are a bad employer and take them to task about it. They will be looking at the facts of the claim and defence and making a judgement based on sound employment law pincicples. Hence the reason for everything I have directed you to under the WS heading.

If your wife is not going to accept a settlement offer, I would suggest that she writes down the reasons for her refusal based on the reasonable expectation of the value of her claim against what has been offered. At least if this is done now, in the event she has to account for herself at any hearing she has the considered response to hand rather than having to think "on the spot" in a stressful situation.

I hope that the above has been helpful but if you have anything further please come back to this thread.

[gban]

Thanks ULA, that is helpful. The offers so far nowhere near reflect the value of the claim.

How seriously do Tribunals take to lies on the ET3? Would the tribunal not want to know how they came up with the new allegations in the ET3 after the first set of lies were overturned on appeal and an offer of reinstatement made?
How seriously do they take taking unfair advantage of LIP's lack of legal knowledge?

The witness statements were supposed to be exchanged last Friday but the respondents asked for an extension until 30/09/2022 because they said the home manager, who is now the second respondent, is off work sick. I happen to know she has been sacked.

Can I inbox you the witness statement for you to have a read of? It's about a five-minute read. It will give you more details on the case.

[ULA]

"How seriously do Tribunals take to lies on the ET3?"
What your wife has to prove to the Tribunal is that the defence as contained in the ET3 is unfounded in fact and law.

"How seriously do they take taking unfair advantage of LIP's lack of legal knowledge?"
Your wife has entered a legal process and as such the Tribunal expects that she will, via research, ensure she has enough knowledge to understand the rules and procedure of an Employment Tribunal and the relevant case law applicable to support her claim together with facts of the case.
In respect of the respondents solicitor are covered by the Solicitors Regulation Authority Code of Conduct and at point You do not abuse your position by taking unfair advantage of clients or others and your wife as the third party would come under this latter category.

I quite often hear of extensions being agree between parties, if it is reasonable and time allows for sufficient review and preparation between exchange of the WSs and the hearing date. Over 4 months away does seem excessive but if that gives enough time before the hearing it is up to your wife whether to agree or not. Make sure if this new date is agreeable you make the respondent aware this will be the date that your wife's WS will be provided.

If the WS is not lengthly then PM it to me.

[gban]

Thanks ULA, I have emailed it to you. Is their solicitor not bound by the SRA code of conduct when finding out she has been lied to, to stop representing the client?

[gban]

Thanks for looking at the witness statement ULA. The reason for point 1 - 30 is because the respondents are saying my wife did not tell the home manager any of these concerns before contacting the CQC and as such it was unreasonable of her to go direct to the CQC. Am i right in thinking that if we get a reasonable settlement agreement then the respondents should offer a payment for us to take legal advice on it ?

[ULA]

In regard to my comments on the WS they could only be based on the details of your wife's claim claim as you provided and the actual WS, I had no other documents to "go on". However my comment about being succint even on these points 1-30 will be relevant.

Since your wife is no longer employed there will not be an offer of a settlement agreement (SA) so it will need to be a COT3 which is a legally binding agreement to settle actual or potential claims in the Employment Tribunal. It is similar to an SA but the wording of a COT3 tends to be more concise. In the same way as a SA prevents an employee from pursuing claims in the Employment Tribunal, a COT3 draws a line under claims which have been raised and may also prevent further claims from being pursued in the Tribunal. The key difference between the two types of agreement is the involvement of ACAS.

It is always advisable to take legal advice to ensure that a COT3 is as fair as possible and that the settlement process goes smoothly, however unlike a SA there is no requirement for the respondent to pay towards the cost of this advice.