New ET1?

[CNeeves]

Hi everyone,
My son has a current claim in the tribunal for disability discrimination, he has a preliminary hearing in December.
He has since been dismissed for ill health capability.
He has until the 11th November to make a claim for unfair dismissal/discrimination.
Should he submit a new claim or request to have his original claim amended?
He does not have legal representation so we want to make sure we do it right.
I would be very grateful if anyone could advise.

[ULA]

Just to clarify.

Had your son made his initial ET claim whilst still employed by the company?

I presume his dismissal for ill health capability was in August if he has until 11 Nov to make a claim. Has he started the process of Early Conciliation on this yet?

[CNeeves]

Hello,
thank you for your reply.

yes he was still employed when he submitted his ET1, very long story, but briefly, he has been in conciliation with ACAS, his employer did dismiss him in August whist conciliation was still going on, they then offered him a very small amount to settle current and any future claim for unfair dismissal.
He has told ACAS that he wants to bring a claim, they suggested amending but we are worried about time.

[CNeeves]

Also, he went through the appeal process which took some time, his employer upheld their decision. So we are aware that time is quite short.

[ULA]

Your son could do this by making an application to the Employment Tribunal (ET) to amend his application to now include the unfair dismissal element. I suggest he gets this application in as soon as possible.

He would be making the application in accordance with rule 29 of the Employment Tribunals Rules of Procedure 2013 (ET Rules), requesting an order for amending the claim. He would then need to detail the amendments he wants to make, which is probably best done by tracking the changes on the original ET1 form. He also needs to set out the reasons for requesting the order.

In addition, he would need to make sure that he sends a copy of this application to the Respondent or their representative which is probably best done by onward copying the email and any attachments he sends to the ET. At the bottom of the correspondence to the ET, he must add in the following phrase. "I confirm that I have complied with rules 30(2) and 92 of the ET Rules by providing a copy of this letter to [put in the name of Respondent] and I have advised them that any objection to this application must be sent to the tribunal office as soon as possible and copied to me."

[CNeeves]

Hi ULA

Thank you so much for your response and the amount of detail you have included. I really do appreciate your help.

We have decided to go with asking for an amendment which we will do in the next day or 2.

Can I just clarify a couple of things before we go ahead?

You have advised "tracking the changes to the original ET1" Does this mean just giving the case number for the original ET1?

Detail amendments - Does he just say he wishes to include unfair dismissal to his claim?

Reason for requesting the order - would this just be that he was still employed at the time of submitting his original ET1 and that he believes his dismissal is unfair? Or does he have to give all the reasons why he believes his dismissal was unfair and particularise his claims? His original ET1 included claims for Indirect discrimination, discrimination arising from disability, failure to make reasonable adjustments, harassment and victimisation.

Is there a particular form for this process or is it just a case of emailing the Tribunal?

If they do not accept the amendment, would he still be able to submit a new claim?

Sorry to ask so many questions and thank you again for your help.

[ULA]

In answer to your questions:

1. The ideal way is to track the required changes in the original ET1.Having had a quick view of the form this will need to be at sections 5.1, parts of 6 as appropriate, 8 and 9.
2. If that is what he wants to add to his claim then yes that is the amendment he needs to state.
3. The reason would be that at the time he made the initial claim he was still employed by the company however he was then dismissed in August and he wants to amend to claim to add in unfair dismissal as a result of discrimination. I am not sure how long your son was employed at the company but if less than 2 years he could not bring an unfair dismissal claim unless it was discriminatory.
4. Email the amendments to the ET1 form to the ET with the explanatory covering letter ensuring you mention those elements I set out in my post #5.
5. If the amendment is not accepted and he submits a new claim, then this needs to be within the timescale of 3 months less a day from his date of termination. I and also not sure if he would have had to have gone through Early Conciliation for this claim to be able to provide the ACAS number on the ET1 form.

[CNeeves]

Thank you so much for your reply. I will make sure he informs ACAS that he wishes to bring a claim for unfair dismissal (they are aware of what's happened and his ex employer is also aware that he intends to bring this new claim, it has been quoted from both sides in settlement proposals which have so far not got anywhere- at least if he asks for a new certificate it will give him a little longer to see what happens with his application to amend).

I am probably being really stupid, but does he get the actual copy of his original ET1 form and type in the amendments on this and on his original particulars of claim?

He was employed for nearly 5 years.

[ULA]

What I would do is take a copy of the original ET1 and Particulars of Claim then your son has a record of what was originally submitted. Then yes on the original ET1 make the amendments and on the Particulars of Claim add a new section for the new claim. Both these documents should then be sent to the ET by email with the detail as I have sent out in my previous post and make sure you then forward that email to the Respondent.

The only thing as well is that the Tribunals are so backlogged you may need to follow-up the processing of the application to add the further claim to ensure that "belt and braces" he does not go out of time to submit a new claim for the unfair dismissal, if the application does not get processed in time. Follow-up would be best by phone but do set aside time to "sit" on the phone and wait for them to answer and hour is not unusual at the moment.

If your son has to make a separate claim, then it will be with the ET before his hearing in Dec and at that preliminary hearing (PHR) he can ask the judge to join the claims.

Please do not worry about asking any questions regarding the ET process if we can answer and point you/your son in the right direction then we will. This is a legal process and as such not always that easy to understand.

[CNeeves]

Thank you so much, that has helped enormously.

I am really grateful for all the advice you have given me. You are all amazing!

[ULA]

Glad this has been helpful.

Just come back this thread if you/your son have any more questions as the claim progresses.

[CNeeves]

Hi Ula,
My son made a subject access request, his employer emailed him the day before the 1 month deadline to say that due to technical problems they needed more time to gather the information requested. A few weeks later they have just sent him some information but have said they can’t send WhatsApp messages as it’s not a company record…..this was a company WhatsApp group used by employees, and part of his ET1 claim mentions a message from a team leader via this platform that was discriminatory. Should this information be disclosed to him?

Ps. We put in an application to amend, I will update on any progress.

[ULA]

I would say there is a strong argument that if this was a company Whatsapp group created by the company and if employers are encouraged or expected to use it as a means of business communication, the content of such conversations will be disclosable as part of a subject access request response.

Whilst this area of law remains untested in the courts and employment tribunals, the Information Commissioner's Office (ICO) has issued some guidelines, in essence this sets out that it does not expect employers to instruct employees to search their private emails, personal devices or private instant messaging applications such as WhatsApp when responding to a DSAR, unless the employer has a good reason to believe the employee is holding relevant personal data on that device or account.

However, what is of relevance to a company set up Whatsapp group, is the guidance which sets out that if employees are permitted to use their own personal devices or accounts to send work-related emails, they are likely acting on the employer's behalf and, if so, any personal data stored on that device or account could be within the scope of the DSAR.

Hope this helps.

[CNeeves]

Thank you so much, your reply has helped enormously. I thought that was the case as all employees were told to communicate via the company Watsapp group. Luckily he has found a screen shot of the particular message that he had taken at the time it was sent, so even if they don’t include all of the messages, he has the one he needs. Good to know he can request any others if he needs them.

[CNeeves]

Hello again,

My son’s Preliminary Hearing is on Tuesday and I wonder if you can help.

The respondent is asking for claims prior to 19th December to be struck out as being out of time.

He had a stage 2 meeting on 23rd December in which he received a written warning for absence (all arising from disability) and during the meeting discriminatory comments were made that he is claiming Harassment for of which he has evidence.

This meeting was a reconvened meeting that had been adjourned in August pending his specialist medical appointment and a referral to Occupational Health. When they reconvened in December he had not been seen by Occupational Health and adjustments that had been discussed had not yet been implemented. The outcome of this meeting is what ultimately lead to his dismissal.

How do we ask the judge to allow his claims prior to 19th December to be heard? His employer is also denying knowledge of disability for which he has extensive evidence that they had knowledge. The discrimination he faced has been ongoing since his diagnosis in 2019. Disability is not disputed, just knowledge of it.

Any help would be greatly appreciated.