Whistleblowing not recognised by former employer

[Retromau5]

Just wanted to give an update on this and get some advice or views.

There is now less than one month until the hearing date, and as my solicitor does not represent at court there is a real possibility that I'll be representing myself on the day (3rd March). Having gone through the whole 'there was no discrimination/we don't believe he has a disability/we couldn't have been expected to have reasonable knowledge of a disability at the time' scenario, it looks like they're now singing the tune of 'the effects of his condition didn't qualify as a disability at the time of the discrimination. This comes after they have had access to my medical records and corispondence with various people within HR and management. I believe I can prove this though.

I'm now in a position where I can see what needs to be in the final bundle, and my question is regarding the respondents use of a witnesses opinion as a statement of fact. At the time of the investigation a witness made a statement that made several claims the misrepresented my wife's thoughts and feeling towards my colleagues. I raised a complaint at the time that the comments were defamatory against my wife and it was dismissed at the time on 2 grounds. Firstly they stated that it did not damage her reputation enough for it to be defamaton, and secondly they said that the witnesses statement was only their opinion, and never considered to be anything other than that. Now they are describing this witness statement as evidence, would it be fair to object to the use of it? It's gone from a statement of fact in the investigate, to a persons opinion when they needed it as a defence against defamation, and now back to a statement of fact.

This surly cannot be fair?

[Pezza54]

I agree with you. A witness statement should be based on facts. Prepare notes to point out to the judge at the hearing and draft a question about this to ask the witness after they have presented their statement

[Retromau5]

Thank you Pezza54. I've asked for the statement they made regarding it being opinion to be submitted to the final bundle. There is another part to this I'm unsure of, I'm keen to hear the views of others on this too. It's quite long winded but I'll try to explain a best I can.

The original claim started with me complaining to my employer about discrimination due to disability. Off the back of this I made a whistleblowing disclosure to my regional manager during further discussions. It was accepted at the time as a whistleblowing disclosure by the company. The whistleblowing was later played down and essentially killed off by my employer later, and the discrimination was also ignored and the company stopped acknowledging my illness.

After this there were 4 allegations made against me from 2 of the the people who where implicated in the whistleblowing, and I was suspended. The suspension letter outlined the 4 allegations. Mr. B had made 3 allegations against me (A, B, & C) , and Miss. M had 1(D). At the investigation stage I was invited to 2 separate meetings by 2 different managers, but both invites only named the Mr. B's allegations, A, B, & C. I questioned this at the time but it was confirmed that both managers were interviewing me for the same allegations in unrelated matters. It became apparent during one of the interviews this was incorrect as one of the managers they were asking questions about two further allegations (E & F). When the investigation findings was released allegation D is referenced at the end as a foot note.

Allegation D is a very serious accusation, and it does not appear again on any paperwork after this point. Yet my former employer's solicitor has referenced it in the grounds of resistance. After this things moved to a disciplinary where I was dismissed after settlement talks broke down.

To make things even more confusing, the disciplinary summary states that the allegations were upheld as follows:

1. Mr. B's grievance is upheld on allegation A.
2. Miss. M's grievance is upheld on allegation B (not D).
3. Miss. K's grievance is upheld on allegation C.

This was produced before the settlement talks. Miss. K was only ever a witness (the one who's statement is that of opinion and not fact that I mentioned in my previous post), and no grievance from her has ever been produced, so as far as I'm concerned the process is to be deemed unfair. But this outcome is then changed again after the settlement talks ended to:

1. Mr. B's grievance upheld on allegation A.
2. Miss. M's grievence is upheld on a matter not discussed previously (admittance of having platonic relationships with colleagues).
3. A lack of professional conduct.


Does anyone have any idea if the Tribunal would accept this lack of transparency and direction as unfair? It's frustrating as their solicitor is trying to steer things away from all this, but I suppose they wouldn't be doing their job properly if they didn't. This is causing me an enormous amount of stress.

[ULA]

Retromau5 I have been reviewing your last two posts as I have been offline.

POST #16

Sorry to hear your solicitor is not representing you at the ET, unfortunately there are a number of employment law solicitors that will not undertake the advocacy part of an employment claim and I believe a claimant should be told this at the outset.

From what you have said has the final bundle has been exchanged yet? What is the exchange date for witness statements as this is usually after a reasonable period from when the bundle has been exchanged. This is making me confused with regard to your comments on the "witness statement" is this being used within the bundle in regard to the documents provided for the investigation or are you referring to the witness statement that this person had written and for which they will be called at the ET hearing and against which they can be cross examined.

POST #18

My one comment is what if anything did you do at the time to query any in discrepancies?

[Retromau5]

Hi ULA thank you for taking the time to read my posts, it is very much appreciated.

#16

I was aware that my solicitor would not attend the final hearing from the beginning, and they were pretty confident that my former employer would settle. I've had very little contact with my solicitor for about 6 months, and that's not for the lack of trying believe me. From what little information I have been able to extract from them I think the last date for the final bundle is 14th of this month. I asked to see it last week and from what I have seen it consists of 200 pages of what I consider to be of very little substance of use. I've spent the last week sharing all the information I will want to refer to, IF it gets to the final hearing. I've also asked them to reach out to the respondent for original documents in their possession that have been referred to in the grounds of resistance. I feel, that outside of a settlement, my solicitor has little to no interest in this.

The witness statement from Miss. K I spoke about in post 16 is from the investigation into my alleged conduct whilst I was still employed. Miss. K is the person who informed Mr. B (who raised the grievance against me) that I made several offensive comments about him, and is currently the only remaining witness. My feeling is that they're using it to justify the inclusion of the allegations as they are trying to apply Polkey and contributory fault (which is asking for any award to be set at nil), even if the discrimination and unfair dismissal is proven. My way of thinking on this is that if they claimed it was only ever considered to be her opinion, then it should never have been given the consideration it was during the investigation and dismissal. Nor should they be able to claim it is a statement of fact at the tribunal. Some times, I feel, people make statements that could be true because they don't want to be proven wrong. I believe this is one of them some times.

#18

"My one comment is what if anything did you do at the time to query any in discrepancies?"

If I'd made any more noise about these discrepancies at the time, they'd have debated it in parliament! Nothing I said, did, or would have changed their mind. Email after email was sent, objection in the interviews, and several complaints made. All fell on deaf ears. I had been affected by a mental health crisis, whistleblown about health and safety concerns and fraud, made a complaint of disability discrimination, and then shown that they had breached GDPR by using special category data belonging to me wife throughout the investigation due to their own incompetence.


The absolute 100% certainty was that I had to go, no matter what it took.

[ULA]

#16

In terms of the final bundle it should contain all the information that both parties are relying on to either prove the claim or defend the claim. The responsibility for compiling the bundle is generally with the respondent particularly if they are represented, however the claimant needs to ensure all the documents they want in the bundle are either requested, if in the respondent's possession, or supplied to the respondent if not. Documents referred to in the ET3 and/or Grounds of Resistance, ET1 and/or Particulars and within exchanged witness statements need to be in the bundle.

If Miss K alleges that she was witness to several offensive comments made by you about Mr B, then that is a factual account of what she observed. If she is being called by the respondent as a witness and there is an exchanged witness statement to be presented at the hearing setting out what she observed, then she will be asked to account for that statement. You will then be given the opportunity to cross-examine the witness about the statement. Remember what one person considers to be offensive another person may not, so effectively that is a matter of opinion.

#18

The factors for the Tribunal to consider on this point are; firstly whether you made a protected disclosure and secondly where you dismissed as a result of this. They will look at the process undertaken by the company in respect of those two factors. It therefore requires you to prove both of these and how the respondent erred in law when dealing with this.

[Retromau5]

Thank you ULA as always your advice is incredibly informative and useful.

When it comes to Miss. K's statement this is how it was discribed by the company in the investigation

"Secondly, throughout any investigations, miss. K's statement has never been referred to as anything other than her opinion. In Section 3, Honest Opinion, of the Defamation Act 2013, it states that a valid defence to an action for defamation is that the statement complained of was a statement of opinion. Miss. K's statement is quite clearly an expression of her opinion and as previously outlined, in none of the evidence to which I have access is it stated that miss. K's statement is anything else."

This is what I have issue with.

Further to the saga, the respondents solicitors made contact yesterday in an attempt to settle. The amount offered was rejected on the grounds that it did not accurately compensate for the discriminatory treatment and further suffering I experienced through their actions. My solicitor countered with what we believed to be a figure that reflected it in a much fairer way. This was rejected by them and they increased their offer by 60%. Again, I don't believe this is fair compensation but it does show that they aren't as confident with their case as they would like people to think.

I'm also aware that this, to some degree, it is a matter of business. They have to prepare the bundle which needs a lot of work even at this late stage, they have to organise witness statements, and possibly get them to appear in court, and a barrister will be present to represent them at the final hearing and on top off all this they may not be able to defend the claim. This all costs money and it will not be cheap. The right balance just needs to be found, an hopefully we can put an end to this madness before the hearing.

But failing that, it's likely I'll have a busy week at the beginning of March.

[ULA]

I think in terms of Miss K's statement it would appear you made an accusation it was defamatory in the grievance and in handling that part of the response the company set out what they did in relation to the Defamation Act. However, should she be called as a witness and provide a witness statement, it is likely to be on the basis of what she observed in terms of the comments made by you about Mr B, then that is a factual account of what she witnessed.

Please do no think that they believe they do not have a case and that is why they are negotiating, quite often settlements are reached on the basis of it being a commercially better option than the legal costs of continuing to prepare and attend a hearing as you have acknowledged. If you do settle they will not admit any liability.

Just be mindful that as they take are likely to be taking into account commercials, you need to take into account your time and stress, as conducting a hearing as a litigant in hearing against a represented respondent is very stressful. This is something that you need to take into account. Also this is a negotiation, if they have come up 60% you will need to come down but I am sure your solicitor is advising accordingly.

[Retromau5]

So, as far as the final bundle is concerned, I've requested the inclusion of close to 30 documents which are mostly short email and response type and my medical records and occupational health assessment. I've offered my assistance in providing these documents if needed, but all of them are accessible from the companies side and I know they have the task of putting it all together. I have provided them with a full chronological index of what they are to make this task relatively easy for them. I believe that these documents are relevant and fall into the following categories.

1. Proof of illness amounting to disability
2. Proof of discrimination arising from disability
3. Proof that the process was unfair (the means were not proportionate to achieving a legitimate aim, and the grievance procedure was not followed correctly on multiple counts)
4. My treatment was less favourable than colleagues (with direct comparators)
5. The disciplinary action was too severe given the circumstances (with a direct comparator)


Now I'm starting to think about the terms of the settlement. There has been progress made in this area so iff it does succeed I'm assuming that there will be a contract drawn up, so I would first like to ask for a standard reference and retain the to have my personal data amended to reflect the truth (there was false allegations that I was suicidal thoughts and my marriage was breaking down during the investigation). My wife will also be exercising her 'right to be forgot' under the GDPR. Is there anything else I should bee thinking about?

[ULA]

It seems like you are sorted on what you want included in the bundle and you will just need to make sure all the relevant documents get into the bundle when you it is sent to you.

If there is a settlement it should be drawn up under what is known as a COT3.

Yes you can agree a standard form reference and I would certainly suggest you ensure this happens.

In terms of your last two request:

" ...retain the to have my personal data amended to reflect the truth..." This may not be something that is included in the COT3 as that is an agreement setting out the financial arrangements in compensation for you giving up the right to make any further claims. There may have to be a separate document asking the respondent to sign declaring they have done this, if they are so inclined to do so.

In respect of your wife then she will need to make this request direct to the respondent and again unlikely it will form part of the COT3.

[Retromau5]

This matter has now come to a conclusion with a result that I am willing to accept. The relief I feel is beyond what I was expecting, and I can now use all of my time being their for my family, especially our 2 month old daughter.

I would like to say a hugh thank you to those who gave their time to read and understand my case, and have given advice that I have found invaluable (and ultimately helped me guide the process to where it ended).

[ULA]

Retromau5 I am pleased to hear that you have concluded with the claim and are in a position to focus your energy on your family.

It is great to hear that you have found our advice helpful as you have progressed with your claim to a conclusion you are at peace with.

Wishing you all the best.