Employment Tribunal

[Freshstart24]

Hi Ula, we do have legal assistance on our insurance cover. Our case was passed to a lawyer, he called today to say that he can’t quite get the 51% due to some elements being time barred. We are awaiting his report. He says there is clear evidence they failed to consider a reasonable adjustment. However, this part is time barred…I thought because there was a continual pattern of failures that it would have linked together leading to constructive dismissal but this doesn’t seem to be the case, also I did a DSAR and have evidence of bullying but apparently this can’t be used against them as I am no longer employed by them and as I didn’t discover the details until after I had resigned it can’t count as bullying. It’s so frustrating, struggling to come to terms with the fact that I may need to let the, away with it…

[pc0101]

You can take them to tribunal without a solicitor, you’ll have to do the work yourself and you will probably have less chance of winning without a professional to assist you, but that is still better than no chance which is what you have if you do nothing.
If you believed that you were being bullied and that contributed to your resignation then you should still be able to take them to tribunal on that basis. You are claiming on the basis of the things that you experienced before you resigned. The SAR evidence might not relate to the events that you experienced before you resigned but if it is your word against your employers on those events then the SAR evidence could be used to demonstrate a pattern of behaviour by your employer that gives more credibility to your statements about the bullying you did experience.

[Freshstart24]

Thanks so much for your reply, I guess I just feel that if I do it myself and lose, it’ll be yet another win for them and that it would be really hard to take. Basically I took out a grievance which was upheld but there was no remedy. My ex employer failed to follow pretty much all of their policies, treated me unfairly, embarrassing and humiliating me repeatedly along the way. I asked for a reasonable adjustment which was a change of department as working under the current management was making me ill. This was refused, my union asked that they support a move, again it was declined. I had been employed by them for 15 years and didn’t want to leave the company, I just needed out that department. I applied for every internal job available to try and get a move myself but was unsuccessful and I resigned. The DSAR shows that management were mocking me throughout the grievance process using GIF’s and emoji’s, referring to me as a ‘wanted leaver’ and a ‘problem’. I also have evidence that the request made by my union to allow a move to another department for mental health reasons was declined as they ‘didn’t think it would be of value’. I am still within the time limits to claim for constructive dismissal but apparently the failure to consider reasonable adjustments will be time barred and even though I have evidence to show they were bullying and using derogatory language about me during the grievance process, I can’t use it as I didn’t know that was going on behind my back at the time (I obviously had a feeling but had no proof until the DSAR) Oh I also have evidence that I never got the internal jobs due to character assasination, I passed the interviews and when the hiring manager asking my manager about my performance and sickness, my manager sent an email about my grievance saying I was a ‘complicated one’. The lawyer says that as there isn’t anything that links everything together, he can’t prove a continual pattern and can’t get it to the 51%. He said if I had have came to him sooner I,e after the grievance, he would have been able to take it on.

[pc0101]

I have no legal knowledge but from my lay point of view:
If you believed you were being unfairly treated and that was the reason that you resigned then you don't need to have had the proof at the time you resigned so long as you knew/believed you were being unfairly treated and that motivated you to resign, the SAR evidence that you subsequently gained is the proof that you were correct and were in fact being unfairly treated. The explanation for why you resigned rather than tried to use the internal grievance system to resolve the unfair treatment is that you previously raised a grievance but nothing changed, you (and your union) also asked for a reasonable change which was refused. You had made all reasonable attempts to resolve the situation internally and were left with no option but to resign.
So your case is for constructive dismissal because of unfair treatment but the previous grievance and the request for adjustment are brought into scope as they motivated your resignation over seeking an internal remedy.

As long as your case is not vexatious or has no reasonable chance of succeeding your employer will have to pay for their own solicitors fees so apart from your time and effort you do not have to invest anything.

Hopefully ULA might be able to comment on my proposed argument?

[Freshstart24]

Thankyou so much for all your time and effort constructing such a helpful response. This is what the lawyer said with regards to the DSAR results. I don’t really understand why the Equality Act needs to come in to it. Is it perhaps that without that breach the claim would not be worthwhile to them in terms of potential compensation vs legal cost? That’s not what’s important to be at all, I honestly just want them to be held accountable. I have been batting them for so long and they always seem to get away with their actions.

Whilst it would appear that the claimant has subsequently become aware of internal emails making what she considers to be derogatory comments about her (including that she was a ‘problem’, ‘under performer’ and ‘wanted leaver’),and which she considers adversely affected her attempts to get a job in a different department, she was not aware of these until she obtained a response to her DSAR in or about December 2023. The EAT held (Greasley-Adams v Royal Mail Group Limited) that a person cannot be harassed under the Equality Act 2010 if they are not aware of the unwanted conduct at the time.

[Freshstart24]

Just to add that my grievance was upheld but there was no remedy offered. I appealed the grievance outcome and in the appeal meeting my union officer made it clear that I needed a change of department for mental health reasons as I was being made ill by my current role/management. The investigating officer said she would consider this as a potential outcome, she approached senior manager who declined on the basis it would not ‘be of value’ I have evidence of this from my DSAR also. It was from this point that I applied for every internal vacancy available and was unsuccessful, I then resigned. So yes I did everything possible to resolve matters internally and to stay at the company but I couldn’t stay where I was as it was making me ill and I had no other choice but to resign. I left a job I was in for 15 years and I am now on a temp contract elsewhere that ends later this year.

[pc0101]

What that is saying is that you can't be harassed by something you did not know about, that is reasonable but that is only one point of argument about those statements. In my opinion the more pertinent argument is that the statements contributed to why you were not given the other jobs that you applied for. You were clearly aware that you did not get those jobs and that you were a suitable candidate for them and so did in fact know that you were being treated unfairly. The statements uncovered by the SAR are just the details of how that unfairness manifested itself with the untrue and derogatory comments tarring your reputation and preventing you from getting those positions. So whilst they are not usable to prove harassment I think they can be used to show you were unfairly treated when you applied for those other roles and thus contributed to your constructive dismissal.

The compensation receivable in an employment tribunal is low and because costs are not awarded it makes it uneconomical most of the time for solicitors. Even with your insurance it seems that is the case, however if you are prepared to put in the time and effort yourself then you can bring your own case. The other side of the coin though is that the same thing applies to your employer, either they will have to put in a lot of effort to defend or to pay a solicitor and that might very well be enough to encourage them to settle before any hearing.

[Freshstart24]

Thankyou. Again, much appreciated. The lawyer has said that most things will be time barred because there is nothing to link them to prove a continued pattern. For example, I was informed at my grievance appeal outcome that senior management had declined a move of department but if a vacancy became available they would support me with reasonable time off to attend the interview. I applied for every internal vacancy available to try and get out but was unsuccessful but they lawyer has said that because I didn’t ask for the move again it will be time barred but senior management had already said no so how could I have kept asking, I did what they said and tried everything I could to get a move until I realised it was pointless.

I am within the time limits to claim constructive dismissal but he has said that I can’t prove a breach in contract?

[Freshstart24]

What that is saying is that you can't be harassed by something you did not know about, that is reasonable but that is only one point of argument about those statements. In my opinion the more pertinent argument is that the statements contributed to why you were not given the other jobs that you applied for. You were clearly aware that you did not get those jobs and that you were a suitable candidate for them and so did in fact know that you were being treated unfairly. The statements uncovered by the SAR are just the details of how that unfairness manifested itself with the untrue and derogatory comments tarring your reputation and preventing you from getting those positions. So whilst they are not usable to prove harassment I think they can be used to show you were unfairly treated when you applied for those other roles and thus contributed to your constructive dismissal.

The compensation receivable in an employment tribunal is low and because costs are not awarded it makes it uneconomical most of the time for solicitors. Even with your insurance it seems that is the case, however if you are prepared to put in the time and effort yourself then you can bring your own case. The other side of the coin though is that the same thing applies to your employer, either they will have to put in a lot of effort to defend or to pay a solicitor and that might very well be enough to encourage them to settle before any hearing.

I did ask the lawyer about the fact that I was unfairly treated when applying for other positions and he has said that because they informed me I was unsuccessful more than 3 months ago, this part will also be time barred. He has said that I have until 1st Feb to submit the ET1 if I do decide to do it alone but that all of the acts of unfair treatment, bullying etc are more than 3 moths ago so time barred. It’s so confusing….

[ULA]

My thoughts given the recent posts, yes you could go it alone and be what is called a Litigant in person, however you should consider what has been advised by the employment lawyer from the insurer that looked at your case.

1. Time barring - maybe the best way to explain this is that the 3 months less a day is either from when your employment ended or the problem/s that you are making the claim about happened.. For example if you thought you lost your job unfairly, the 3 month less a day period begins from the date your employment ended. If your claim is about discrimination or a dispute over pay, the 3 month less a day period begins when the incident or dispute happened. What the lawyer is saying is that many of the potential claims you are trying to take your ex-employer to an employment tribunal for, are about events which have happened more than 3 months less a day ago.
The consequence of this is that even if you become a litigant in person (LIP) and made the claim yourself without legal assistance they would be time barred and a Judge doing an initial review of your ET1 would strike those out and not allow them to proceed.

2. That leaves you, it seems, with a potential claim for constructive unfair dismissal which has to be submitted by the extended Early Conciliation date of 1 Feb according to the lawyer.
Just on constructive unfair dismissal this is handled slightly differently by the Tribunal is it will be down to you as the claimant to prove that your employer
has seriously breached your contract of employment for which you had no choice but to resign.
I am not sure what evidence you have to prove constructive unfair dismissal and what process you went through to try to resolve the issue before you resigned but these are all things that the Tribunal would want to see set out for them.

3.In terms of your comment about the Equality Act this does come into play as this covers discrimination for which there are 3 types of harassment:

• harassment related to certain "protected characteristics"
• sexual harassment
• less favourable treatment as a result of harassment

I hope that some of these explanations help.

[Freshstart24]

Thankyou again for all your help on this thread. I have completed and sent the ET1 form myself. I may not get far but will sleep easier knowing that I tried and didn’t give up. Thankyou.

[ULA]

If you need any further assistance as this progresses then just come back to this thread. It will be a waiting period for a while now.

[Freshstart24]

Thankyou

[Freshstart24]

I have a letter already and preliminary hearing date …is that a sign that they might want to strike out my claims?

[ULA]

Can you redact the personal information and post what has been sent to you by the ET.