Can Former Employer Counter-claim

[Binuchander]

Hi

I have tried a couple of times this afternoon to respond but my response keeps on getting not uploaded when I submit post reply so apologies if this is a duplicate response.

The bundle is in PDF electronic format and I am happy to get the software to edit the latest copy that I have.

Exchange of witness statements is due 4.6.24 and the tribunal date is 2.7.24,.

Interestingly there is nothing stated in the case management orders about when the bundle and witness statements need to be submitted to the ET but the respondent has said they want to exchange witness statements on 4.6.24 at 23.59 and will be submitting the bundle straight away so I really do wonder what they have up their sleeve.

On the basis that we have near agreed bundle and the respondent has said that they cannot update it before the date for exchange of witness statements, do you think a Judge would criticise me for adding in my documents, updating the index and sending it to the respondent in advance of the day for exchange of witness statements?

[ULA]

The date the respondent has said they want to exchange witness statements is as ordered by the Tribunal so no issues there.

Typically Case Management Orders will state that electronic versions of the bundle and WS have to be sent to the Tribunal anywhere between 7-4 days before the hearing and typically 5 sets of hard copies need to be provided on the day of the hearing.

As I stated in my post #57 you need to write to the respondent if you want to go through the process of adding in the documents, repaginating and updating the index given that they will not do this. Unfortunately you may now be running short on time, if you have not done this already.

[Binuchander]

Thanks ULA - I have now received an updated bundle with the documents in so I think all should be ok.

Apologies if this is a silly question but could the respondent ask the judge to not take into account these documents at the hearing given that they were submitted after the date of exchange for documents?

I think I’m just winding myself up - I hope fact that they are in the bundle will mean that there should be no issues in referring to them at the hearing?

[ULA]

No question is a silly one.

There is an ongoing duty of disclosure throughout the case, if documents come to light that are relevant. Although the majority should be in the bundle by exchange date, I have known documents be submitted after and even during a hearing. So quick answer if they are in the bundle they can be referred to at the hearing.

[Binuchander]

Thank you ULA - I really appreciate your response

[Binuchander]

To recap, my former employer is counter-claiming, saying that I was given excess annual leave and has submitted a list of dates taken, many of which are untrue and I can only assume have been made up. I have evidence to refute these dates and to demonstrate that all annual leave was taken in full agreement with the employer.

They have included 2 periods of sick leave within their annual leave calculations as well - there was one day when I was sent to hospital for some tests and I have included the email confirming their agreement to sick leave on that date and there was a 3 week period in 2020 when I had an operation and was given a hand-written sick note by the hospital. They are refusing to disclose this sick note and as it was hand-written (not electronic), I cannot get a copy from my GP. I have however included a copy of the discharge summary from the hospital showing I had the operation and stayed in overnight.

Is there anything I can do at this stage (4 weeks out from the hearing) to force them to provide me with a copy of the sick note and add it to the bundle?

[ULA]

Do you know why are the claiming that a period of sick leave absence was in fact holiday for the calculation of holiday leave?

The only thing I can suggest is that you email them stating that if you do not get their agreement by return of email that this evidence, which is relevant to the claim is disclosed, as it should be, then you will be making an application to the ET for an Order for them to disclose.

[Binuchander]

Thanks ULA - I honestly don’t know why they are claiming my sick leave was annual leave - the whole thing is complete nonsense if I am honest - they are just trying it on as they have done throughout.

I will email them tomorrow giving them till the end of the week to disclose the sick note otherwise will apply to the ET.

Is there a specific way that I request an order from the ET?
could you help with wording of the request please?

Thanks in advance

[Binuchander]

Please ignore above - they have now acknowledged via email overnight that the dates in questions were sick leave and not annual leave.

Witness statements are due to be exchanged today and They emailed me at 00.30 overnight to say that they will amend their claim to reflect this.

So my question is - can a party suddenly their evidence on the day of exchange of witness statements? I really don’t have time today to change my witness statements. They have produced the bundle and it is password protected. My concern is that in the final bundle that they send to the employment tribunal, they will remove the sick leave dates to make it look as if they were never in there.

[ULA]

They need to amend the claim otherwise it would not be correct given what they acknowledged in the email.

You should have been given the password otherwise how can you access the bundle and you should have the same copy as sent to the ET.

Just make sure you have copy of the email you received printed off when you go the ET just in case would be my suggestion.

[Binuchander]

We have had a huge number of issues in relation to the joint bundle - the respondent denied receiving some of my documents (had to send some 3 times) then put in the wrong contract of employment (put in an original unagreed draft version rather than the true version). I got very frustrated with this so rang the ET and was advised to email in which I did about 2 weeks ago. The respondent (who is responsible for creation of the bundle) then decided to create 2 separate files, 1 with their documents in and 1 with my documents in which he labelled as 'documents submitted after the agreed date for exchange of evidence' which is completely untrue.

The day after exchange of witness statements, both parties received a letter from a Judge at The ET saying that there MUST be one single bundle for the CVP hearing.

We are however going around in circles again - the respondent wants me to send one single file to him which contains all my documents but he has said he will delete what he wishes to and will intersect my documents where he wishes to - clearly this is not acceptable.

I appreciate this is a very open ended question but is there anything I can do about this? I have created 1 single file of my documents and will send it to him this week but if he insists on altering it, do you have nay thought on what the likely outcome would be if I send my own bundle to the ET with an explanation as to why? I don't want to weaken my case by doing this but equally I have confidence in my documents and want the Judge to be able to see them.

[ULA]

If the Judge has ordered one bundle to be produced for the hearing, then that is what, between you and the Respondent, you need to work to produce.

Bundles are typically in chronological order therefore your documents will be interspersed with those from the respondent.

When you send over your file of documents, I would suggest that in the covering email you reiterate that all the documents that you are providing are relevant to the claim you are making and therefore, under the duty of disclosure that the Tribunal places on both parties, are required to be put into the bundle by the respondent. Confirm that when a copy of the bundle is provided to you then you will be ensure that all your documents provided in the file are included and if any are found to have been excluded you will be contacting the Tribunal in respect of the matter.

[Binuchander]

The date for exchange of witness statements was 4th June.

On 14th June my ex-employer sent 2 additional witness statements from current employees. One of them is dated 6th June and is signed and the other is also dated 6th June and is not signed. Neither of these people are listed to attend the hearing as witnesses.

Can I ask Whether a Judge will take into account:

1. Witness statements submitted after the CMO's deadline for exchange of witness statement

2. An unsigned Witness statement


Thank you in advance

[ULA]

CMO's tend to have within them a 14 day mutually agreed extension to deadline date and even if not specifically stated it is effectively "baked into" the process. Even if not agreed but documents are provided in that timescale, then the tribunal is going to do little if either party complains. The time it becomes an issue is if it delays deadlines of documents being sent to the Tribunal.

If the individuals do not actually attend as witness to be cross examined by you and answer any questions from the panel, then little account will be taken of their statements, regardless of whether or not they have been signed.

[Binuchander]

Thanks ULA - that is really helpful.