Employment tribunal claim for victimisation

[Ots]

I've submitted a claim against me ex employer for victimisation. The brief circumstances are that in 2006 I made protected act (disability discrimination) against my then employer, which I won in the ET. In 2020 I asked them for a reference for a job. They refused. I didn't get the job. I suspected the refusal for the reference was because of the protected act made in 2006. Through disclosure, I have seen a email document which says that person A in the company requested my full paper personnel file from person B in HR. A further email document sent by person A to person B over three weeks cancelling my file.

I suspect that person A did in fact obtain the file from person B and that they saw documents about the protected act made 14 years prior. The Respondent is not calling person A or B to give evidence in the final hearing. Can I ask the ET to draw an inference about the Respondent failure in not calling A and B.

Thanks for any advice.

[dslippy]

I doubt they will draw such an inference without you at least first showing clear reasons why your employer should be expected to call A and B. They will listen to the evidence presented, and add it up.
In discrimination associated claims there is sometimes a shifting of the burden of proof from the claimant to the defendant, but these are limited, and should not be confused with drawing of adverse inferences.

[Ots]

My questions to A & B, which I can't put to them are why did A request the file. Why did A decide they no longer required the file. What did B do in the intervening period of over 3 weeks between being asked for the file and B cancelling the file. ??

[Ots]

One more thing. Is it ok to include facts established through disclosure of documents that I got after the claim was submitted and that I wasn't a witness to in my statement for the final hearing?

[dslippy]

Have you asked the Tribunal or the other side to make sure they attend?

[Ots]

I asked the Respondent if A & B would attend. They Both said No. Did an application for a witness order. ET Judge said no.

[ULA]

Yes you can refer to documents as part of your witness statement that have been part of disclosure. Just remember these references need to be part of the correct chronology of events and you should cross reference the page in the bundle where these documents are.

[dslippy]

If the ET judge said he would not order their attendance, it seems difficult to see how the ET can draw any inference from their non-attendance.