Appealing a dismissal

[MrSharples]

Hi Ula , many thanks for your reply, and yes your correct, what I have received is the full bundle with all documents numbered, however they are still saying its a draft version, I really think that the only thing missing is the respondents witness statement, which in all honesty I don't think he has done. Would be right in assuming that the respondent has to do a witness statement, or can he use what he has stated in his et3 form as his defense, will a tribunal judge expect a witness statement from him , cheers and many thanks again for your help david

[ULA]

I wonder if they are hedging their bets that there may be further disclosures to make. However, given the hearing is in July my suggestion would be that the bundle is agreed as the final version and is now paginated and indexed accordingly. Of course if any further documents, relevant to the issues of the claim, are found by either party then they can just be added to the bundle.

Witness statements are required by both parties and need to be exchange prior to the hearing. If the respondent does not decide to produce one then I guess that is his "look out" - not a legal term but I am sure you get my meaning.

[MrSharples]

Hi Ula maybe this will help , like I mentioned I don't think he has done a witness statement, but I'm sure the bundle they have sent is complete, and this maybe why they keep referring to it as a draft copy, cheers david

[ULA]

Have you provided details of the relevance of the documents to the claim. If not then I suggest that you do.

[MrSharples]

Yes but that was just via a phone call , I will be sending them back an email as we speak, and will explain the relevance of all the documents I sent many thanks David

[MrSharples]

Hi Ula , well since our last post I can confirm that I have sent everything they need , and I have received a Final hearing index email from them, and a hard printed copy in a file this morning through the post. The printed file copy through the post states also that it's the final hearing index , however as I have always suspected it does not include any witness statement from the corespondent, he does mention in the ET3 form, he does point out many reasons for my dismissal in a document called, Voluntary Further and Better Particulars of Grounds of Resistance, which is 5 pages long. Can this document be used instead of a witness statement by the respondent during the hearing, as its quite a lengthy document, of about 20 paragraphs, once again many thanks for all your help , David

[ULA]

My view is that you need a witness statement from the respondent.

I suggest you email the respondent's solicitor in the morning and ask when you will be in receipt of their clients witness statement. If there is a case management order giving reference to the date this was due to be exchanged, add this into your correspondence.

[MrSharples]

Hi Ula , well its getting really Close to the tribunal hearing, and I'm a bit confused about this latest email from the respondents solicitors, I've never been sure of the difference between unfair dismissal, and constructive unfair dismissal, but have stated in my et1 form , and my witness statement that it is just unfair dismissal as I never really resigned at any time , I would have thought that I have made it quite clear that I would be claiming unfair dismissal, so do not see the relevance of this recent email which they have also copied the tribunals office into. We are about to swap the final witness statements, as mentioned above my witness statement concludes that I am claiming unfair dismissal, just wondering what your thoughts are before we finally swap , once again many thanks for your help and support, David

[ULA]

So according to your first ever post on this thread you stated you were dismissed and you received a letter to this effect from your employer, which I hope you have retained a copy of and is in the bundle. I guess you followed this through in your ET1 by stating the date you were dismissed at 5.1 and then at ticked the first box at 8.1.

What is the letter referred to of 28 June was it the request for the witness statement from the respondent as set out in my post #52?

If all your answers to the above are Yes then all you need to do is a short brief email to the Tribunal (with the case number in the subject line) copied into the respondent's solicitor as follows:

Dear Sirs,

Further to the correspondence you have received from the Respondent dated xxx, which seems to imply there is some need to clarify my claim, I can set out that since the Respondent sent me a letter dated xxxx dismissing me from my employment, then I am correctly claiming unfair dismissal. I did not resign and therefore it would be inappropriate for me to claim for constructive unfair dismissal.

This correspondence has been copied into the Respondent.

Yours faithfully,

[MrSharples]

Hi Ula , once again thank you so much for all your halo I appreciate it so much , ok I think the respondents solicitor maybe referring to paragraph 8 on my Et1 form , I have ticked the first box confirming I was unfairly dismissed, however I have mistakenly ticked the last box aswell , for some silly reason. I have also filled in section 5 correctly with regards to start dates and when my employment ended. I have noticed that the respondent has stated in section 6 of his et3 form that he states that several witnesses attest to the fact that I resigned. As I never filled out any form of resignation letter and never had any intention of doing so , I find it very odd how he can actually state this. I have all of his witness statements from 3 different people and whilst they have mentioned the fact that I was asked to resign, and was even handed a pen a paper to write out my resignation notice, I never ever did.Would I be right in assuming that its impossible for the respondent to imply I resigned without a resignation letter, I'm sure he would not be foolish enough to suggest . I have replied to the tribunal using the format you kindly sent me , thanks so much David

[ULA]

So you ticked the box "I am making another type of claim which the Employment Tribunal can deal with."

You need to set out very clearly in your witness statement in the correct chronological order that manager [name] on xxx date at xx time (if you have the time detail) asked you to resign which you did not do either verbally at the time or at any later time either verbally or in writing.

A resignation letter from you would prove their point so if they do not have it then all that they may try to say is that you verbally resigned to the said manager on the said date. Your witness statement would say differently and you have the letter from the employer dismissing you.

[MrSharples]

Hi Ula , what you have suggested is exactly what they are trying to say, however in my witness statement I have maintained that I never agreed to write out a resignation letter, my line manager said to me if your not happy with your job you can always leave , and write out your resignation letter, I replied I would, but that reply was to his request for me to leave, and not to write out a resignation letter, what they are trying to say is I agreed to write out a resignation letter, but never did, so you're correct they are basically saying I resigned verbally, I can't remember whether I made you aware that they made me an offer about 10 days ago of £3000 which I refused, do you think that they will come back with another offer before the tribunal hearing which is the 12th July, many thanks david

[ULA]

An offer to settle can be made at any time even once the hearing has started, however I cannot say whether they will come back with a further offer. Do they have a figure from you in respect of what you are looking for to settle?

[MrSharples]

Hi Ula, loss of earnings until I started new job 3 weeks ago amounts to 6 months @ £500 per month, other costs which incidentally given by one of his solicitors early on in the case ( much to the anoyment of the present solicitor now dealing with the case ) was the cost of taking my HGV 1 license to further my employment prospects was £2000 , this totals £14000 , however not to come across as greedy I have indicated to the acas conciliator that I would be happy with £10000, which I think is fair , however at a push I would accept £8000. Whilst I'm on and before I nip out for , coloured post it notes , highlighters , notepad etc to prepare for a tribunal, could I just please ask you something about how the tribunal hearing goes , I know in my case that the respondent will go first, does this mean this is my chance to cross examine him , or him to explain his case , or a bit of both , for instance when he goes first and his time is up , I've had my only opportunity to ask him questions, same goes for his witnesses, are they only called upon once , for them to testify, and again have I only got this opportunity to cross examine them at certain times. I would hate to think I'd missed my opportunity to cross examine, because of not knowing when to do so. He has himself, 3 witnesses, plus his representative, and I will be on my own , which I'm starting to get a bit worried about. I know I have a really strong case , but do not want to mess it up , just because I've not understood properly how things work. Many thanks david

[ULA]

As you say in an unfair dismissal case the respondent will usually go first in terms of providing evidence for their case, which they will start with and then you will have a chance for cross examination.

I have produced a Preparing for an ET document which you may find useful and I have uploaded below and hopefully it should answer a number of your questions in your post but if there is anything else you need to know to help you prepare you know where I am.

Post-It notes and highlighters are my personal favourites!