New ET1?

[ULA]

What your son needs to do is prove that the claims they are asking to have struck where in fact made in time i.e.within 3 months less a day from the date of the event being claimed.

Again your son needs to prove that his employer knew of, or could reasonably have expected to have known of, your son's disability. Does he have any evidence of this that he can have at the preliminary hearing (PHR).

[CNeeves]

Hi Ula

Thank you for your reply.

He has hospital discharge letters which he gave to his employer in 2019 which gave his diagnosis, and letters from specialist hospital which confirmed this diagnosis and some of the symptoms. All of his sickness absence has be due to this and is mentioned in all of his fit notes and back to work meetings. Would this be enough evidence?

Although the stage 2 meeting in August is out of time, he is not claiming any discrimination happened at this meeting, only that it had been deferred until it was reconvened in December (this meeting was within time limits) but he was told in August that they would refer to occupational health before making a decision, they held the meeting in December and gave him a written warning but he had not been referred to occupational health. Should he take the meeting letter and notes from August to his hearing?

thank you again for all your help

[ULA]

I appreciate that he has discharge papers and fit notes etc. but does this lead to an employer being able to understand that your son has a disability as defined in the Equality Act 201 (EqA) which is that he had a "physical or mental impairment that has a substantial and long-term negative effect on his ability to do normal daily activities. If so then at the hearing tomorrow he needs to set out this information and that this meant the employer did know, or could reasonably be expected to know, that your son had a disability.

I would suggest have everything available in case it is asked for by the judge - be prepared.

[CNeeves]

Hi Ula

Thank you for your reply

He has found a copy of a stage 2 meeting dated Jan 2020 where he informed his employer that he was no longer able to do the things he enjoyed, had stopped going out, had stopped seeing his friends and basically stayed home. All as a result of his impairment. He said that it had an effect on his daily life and was impacting his mental health. By this time it had been going on for 9 months and was expected to last more than 12 months. It was also getting worse and lead to more sickness absence. Would this prove that they had knowledge? He will have a copy for the hearing.

The Respondents representative has already informed the tribunal that they accept he was disabled at all material times, they deny that they knew “he had this condition” I’m assuming that means they deny knowing it was a disability.

Thanks again and I will let you know what happens

[ULA]

I would not like to confirm yes/no to your question as it will be entirely down to the judge tomorrow to decide whether it proves that the employer had knowledge.

I am not sure how they can claim they have accepted he was disabled at all material times without knowledge of his condition, unless they are trying to say that they accept disability but were not aware of the exact nature of his condition and impact on his normal activities.

Please let us know how he gets on.

[CNeeves]

Hi all,
bit of an update and also a question….

So, we had the Preliminary Hearing, we had put in the request to amend and this was accepted.
A day before, my son was informed he was entitled to legal aid, obviously not enough time for Solicitor to get to know his case so were on our own for this. All went well and not as scary as we thought.

The ET judge was v nice and he asked my son if he knew the difference between indirect and direct discrimination. He went on to say that he believed he was looking at direct discrimination and the respondents legal representative agreed that my son’s legal advisor might also agree.

The judge and respondent agreed to Judicial Mediation, the Judge told my son to talk to his solicitor and let the Tribunal know if he agreed to this and if so, to prepare a schedule of loss. Also a date was set for a 5 day Tribunal in September.

The respondent requested further and better particulars of claim.

Fast forward, Schedule of loss submitted, drafted by legal aid solicitor and son has said he would like Judicial Mediation so waiting for that.

Further and better particulars due tomorrow. Solicitor sent draft copy to us but without claim for direct discrimination.
He said nothing jumped out to him and said would be hard to prove etc…I have added a couple of things to this and it’s pretty much ready to send.

He is unavailable until next week but we have to submit tomorrow. We received the case management orders. ( solicitor did not have sight of these before going on leave) Permission granted to relabel claims to add direct discrimination.

I want to add this as the EJ identified it, I just don’t know how to add it into the particulars or which which part of his claim/s would be relevant.

So, should I just add Direct Discrimination to the list of breaches, alongside indirect discrimination etc. and if so, can I do this without having to refer to each part of the claim this is relevant to? At least for now?

I guess it’s better to add it than not, should I just list it and say he was treated less favourably because of his disability etc?

Sorry for rambling
hope you can help

[ULA]

CNeeves thanks for the update. If your son has been given leave to amend his particulars of claim to include direct discrimination then it needs to be done as fully as possible and refer to each part of the claim where this is relevant.

[CNeeves]

Hi Ula,

I wonder if you can help

Things are progressing in my son’s claim and it’s all getting a bit busy.

A number of things have happened that have probably made it more difficult than it needed to be and I’m struggling a little bit with what I should do. I’ll summarise below:

legal aid solicitor was appointed just after Preliminary Hearing.

He requested lots of documents which were all duly sent. He said he would complete a schedule of loss (for mediation) and then move on to the Further and Better Particulars of claim which the Respondent had requested.

He then went on leave for a couple of weeks with both deadlines fast approaching.

on his return my son contacted him as he was worried about missing deadlines, only to be told that he had not sent enough documents and he was given a long list of what was required. Weeks wasted where we could have been gathering these.

He sent the schedule of loss

Eventually we were sent the Further and Better Particulars and we had to submit them without fully discussing as he then went on paternity leave.

And then he left the company. We had mediation approaching.

Amended grounds were submitted by respondent 2 months late, we had agreed a couple of extensions but long story short, we were assigned a new legal aid solicitor who chased them up and gave a deadline, they were sent, together with the draft list of issues (also late) a day before mediation.

The legal aid solicitor done a merits assessment which was based on the amended grounds of resistance, without having any of my sons evidence as this had not been requested, the respondent had denied everything and our solicitor took their word on it. Needless to say she did not think he had a good case.

Moving on…mediation was not successful.

legal aid say they are now limited to settlement only as they don’t believe he has more than a 50% chance of winning.

So here’s my problem and where I hope you can help.

On the amended grounds, the respondent says the claimant has failed to particularise his claims. I emailed their representative and asked if they wanted me to provide more further and better particulars, they said no. On the AGR they have denied that 2 of the 4 PCP’s are valid

What really worries me is that by Friday, we need to agree the list of issues. (Also deadline for disclosure) I have emailed what I want added to these and I said I had concerns about the AGR that may affect the list of issues, I told them our solicitor was not available until next week
(annual leave).

I am really concerned about the 2 PCP’s, I tried asking our solicitor and told her that her colleague identified these and she said she would be in touch on her return (but what they said still stands regarding their help)

Should I contact the Tribunal and request a Preliminary Hearing to identify the correct PCP’s? Is that a thing? Can I do that? Or,

Should I send further and better particulars anyway and put the PCP’s in that way? It would literally be changing the wording of them slightly. Or,

Do I need to put in an application to amend? I am conscious that the Tribunal is only 2 months away.

I am not worried about the strength of my son’s case and think the assessment was totally unfair in the circumstances, I am worried about defining the PCP’s.

Please can you help

[ULA]

Just to clarify, who has responsibility for the case? You say that you have a legal aid solicitor acting for your son, are they on the Tribunal record as acting or his he still considered a litigant in person?

This matters because whoever is on the record is the party that should be corresponding with the Tribunal. You seem to indicate from your post that you are considering corresponding with the Tribunal despite having solicitors acting.

[CNeeves]

Hi Ula

Thank you for your response.

He is still classed as a litigant in person, the legal aid solicitor only went on record for correspondence as they do not represent at Tribunal. They would have helped with. my current query and with writing the witness statement etc but have told my son their help is now limited to reaching a settlement. They were never representing him, just advising/assisting him.

I am going to email the Tribunal and tell them I will be representing him.

[ULA]

Thank you for confirming that your son remains the litigant in person and that he is on record with the Tribunal.

It is very clear that your son will get limited support from the legal aid solicitor unless it is regarding settlement discussions which means that your son/you on his behalf need to deal with the respondent on hearing proceedings.

When I was last involved in your thread, several months ago, your son had been given leave by the judge at the prelim hearing to amend his particulars of claim, was that done and is the respondent now in possession of them? If they have already been amended with the agreement of the Tribunal then my understanding is that you will need to get further agreement to amend again.

The respondent's AGoR may well state they do not accept 2 of the 4 PCP's, however with respect to the PCPs and agreeing the list of issues then you need to ensure that the respondent has all the issues you want the Tribunal to find on in that list which is a separate document to any AGoR or APoC.