How do I progress my ET case?

[pc0101]

Hi All,

I have an unfair dismissal case with Bristol ET.

I submitted my ET1 online, 2 weeks after submission I received a response accepting my case and stating the respondent had 28 days from that point to submit their response (the ET3). I have not received the ET3 so far, I waited 10 working days after the ET3 submission deadline (as that is how long it took them to process my ET1) and then sent an email asking for an update. I got a boiler plate response saying they were busy, that my request was noted and to not email them again. It has been another 10 working days since and I have still not heard anything. Even if the respondent submitted on the final day of the allowed 28 days it will have now been over 20 working days (a month in elapsed time) since then.

Does anyone have any information on the likely time for an ET to process a submitted ET3?

Presuming that the ET3 has not been submitted is there a way for me to progress (or encourage the ET to progress) my case without it?

[ULA]

As you may have already found out most courts and tribunals are backlogged.

If you have some time (you may need to wait for a while to be answered) I would suggest the best thing to do is phone Bristol ET and asked if they have received the ET3 from the respondent and if so how long will it be before a copy is sent to you. If they have not received anything then asked when this will be put to a Judge for review.

[pc0101]

Thank you, I will phone up and see what happens.

A separate question I have is:
All the paperwork I have with regard to my dismissal, such as the notification of suspension, report, hearing notes and outcome decision etc, are marked as confidential my former employer stated in my initial notification that if I failed to keep the contents confidential or tried to talk to my colleagues about work things then that in itself would be grounds for dismissal. However, in order for me to prepare my case for tribunal, should it get that far, I will need to tell some of my former colleagues the details in order for them to act as witnesses. Is it accepted that the confidentiality wouldn’t apply when shared for this purpose or should I seek permission from my former employer or the tribunal before I discuss with my colleagues? I would be quite happy for all those documents to be made public as I have nothing to hide.

[FlamingJayne]

Hi
im currently on with an ET too. All witnesses are former colleagues. I am getting legal support for my case and I am aware that such information can only be shared with legal sources, ie union or solicitor, witnesses with a former employer would have to be directed via the Tribunal/via the respondents legal rep. And they can be subpoenaed to provide testimony if they refuse. If your claim came to a full hearing witnesses would be cross examined by your legal rep, or yourself if you self represent. The forum moderators here may offer you more advice, mine would be to hold off from sharing anything with witnesses at the moment so as to not jeopardise your case. Also, I’m sure you will have seen it but there is a wealth of great advice online on legal websites. This forum is also great. Good luck

[ULA]

The documents can be shared with any legal adviser that you may have assisting with your claim. In respect of witnesses I would hold off doing anything about this until such times as you have received the ET3, assuming one is submitted and you are further into the proceedings. You are only at the very beginning of what could potentially be a long road depending, on the complexity of your unfair dismissal claim.

Also just a word of warning in respect of who of your former work colleagues you ask to be witnesses by providing a statement and attending any final hearing. They do not always want to come forward for fears about how this will be viewed by their employer. Yes, ultimately you can make an application to the Tribunal for a witness order (it is not a subpoena) compelling a witness to attend a hearing but this really is a last resort and do you really want to have an unwilling witness there as you try to present your case. Just something to have in your information file for future reference and consideration if needed.

[pc0101]

Thank you for all the help so far.

I phoned up the ET today, remarkably they answered in 3 rings and were able to give me an update straight away. No ET3 has been submitted and since it has been more than 28 days they have put my case in the queue to be looked at by a judge. Apparently, that might take some time but at least things are on the move.

If my case proceeds without a defence what would happen? In my ET1 I outlined my case in broad terms and gave a couple of illustrative snippets of the evidence I have but I wanted to expand on the arguments and present proper evidence and bring witnesses who I feel confident will provide corroborating statements. Will all of that still happen or will the judge simply decide that as there is no defence my case is automatically proven and move straight to determining compensation?

[ULA]

Firstly I would just like to say that your ET1 submission should have presented all the details of your claim for which you could have included a document called a Particulars of Claim to provide more detailed information.

What will happen now is that an employment Judge will decide whether on the available material i.e. your ET1, or they may request further information, which the parties are required to provide, they can make a proper determination of the claim, or part of it. To the extent that a determination can be made, the Judge shall issue a judgment accordingly.

If they cannot come to a decision then the Judge will order a hearing so be held with them sitting alone (no lay panel members). If the Judge directs that a preliminary issue needs to be determined at a hearing, a judgment may be issued by the Judge after that issue has been determined without a further hearing.

Despite not completing an ET3, the respondent will be sent any notice of a hearing and the decisions of the Tribunal and unless an extension of time is granted, will only be entitled to participate in any hearing/s to the extent permitted by the Judge.

[pc0101]

Thank you for your replies.

On my ET1 I provided 3 classes of things for why my dismissal was unfair, e.g. one class was that they failed to carry out a fair investigation because they did not attempt to verify the accusations or interview anyone who could corroborate my view (that it did not happen). I illustrated each of these classes with one example and a short argument, e.g. for the above I quoted a specific accusation which was stated as fact in the report, I then listed some of the documents (which they were well aware of) that proved this was not the case and the colleagues that would have been able to easily say it wasn't the case but were not asked, I then added a quote from my hearing where one of those colleagues appeared as my witness and did in fact say it never happened. I only used 1 example to illustrate each class but I have multiple examples for each class and I was planning on providing all these examples along with some documents and witness statements from colleagues which illustrate each example. From what you have said is it the case that the judge will look at my ET1 and determine based on that if my case is accepted/proven, if they accept it then we move on, if they do not I would then be able to provide the rest of the information with the additional examples, documents and witness statements?

I understand that the respondant's participation is now at the discretion of the judge, but in practice how does this usually turn out, do respondants usually get to take part if they now respond and try to mount a defence?

[ULA]

So the options for the Judge having read your ET1 are:

1. Case rejected.
2. Case accepted and determination made.
3. Judge needs further information to make a determination and parties will be required to provide the information requested. Some of this may be the information you should have provided but did not is your ET1. Judge can then make a determination.
4. Judge decides there are some issues for which a preliminary hearing is required and you will be notified accordingly.

If the respondent decides to defend late then it will be down to the Judge to determine whether there was a justifiable reason for this. If so the Judge may allow the respondent to be fully engaged in the process.

[pc0101]

Hi,

The outline of what happened is:

I lodged a grievance against the manager of my manager for making up and telling other people, things about my performance and abilities and forcing me to work excessive overtime to meet impossible deadlines.

The grievance was rejected and instead I was suspended pending a disciplinary investigation.

The investigation took a long time and resulted in a report being generated. The report suggested lots of classes of things I had done, e.g. 'he regularly doesn't follow procedures and process' but it was very vague on the details and did not provide many examples of me actually doing the things like not following process, so it might have had one specific instance 'he didn't do xyz' but that would be it. The report was based entirely on witness statements made by the person I raised the grievance against and a few of their colleagues. As I stated in my grievance, these colleagues were being were being told these things by the person I complained about, so they obviously just repeated this. No actual evidence was used such as messages/emails/work records and no statements from people who could have said he did in fact do xyz. The report did not leave these things as accusations it stated everything as proven facts and justified this by saying that because these colleagues all said it then it must be true.

My employer refused to record the disciplinary hearing and so I wrote a written response which I then read out so there could be no twisting of words. My response referenced messages/emails/work records and I also called several witnesses to my hearing. The specific instances mentioned in the report were disproven by the witnesses and by reference to messages/emails/work records. For example, I was able to show that I had in fact done xyz, however it was impossible for me to prove that 'he regularly doesn't follow procedures and process' was untrue since there were no remaining examples of me not following process to dispute and I could hardly recount my entire work history. In the final decisions this was mostly acknowledged by my employer e.g. 'we accept that he did in fact do xyz' but they still concluded that 'he regularly doesn't follow procedures and process' and I was dismissed based on the witness statements that said this.

I have lodged my case, which is basically:

• Full details of the accusations against me were not provided so I could not defend myself.
• I disproved the specific examples given in the report.
• The investigation was not impartial since they never tried to disprove any of the accusations by looking at evidence or asking other people.
• The decision was based entirely on witness statements from a small number of colleagues of the person I raised the grievance against, no actual evidence exists and the statements by these colleagues have been proven to be incorrect in several instances and should be weighted accordingly.

After some clerical issues with the ET my case is going to be scheduled for a hearing, this will require me to gather and prepare witnesses. All the documentation is marked as private and confidential and my original letter says that sharing any of this information would be gross misconduct. For my disciplinary hearing, the witnesses were able to come unprepared and I just asked them questions but for the ET they will need to write statements and be prepared to be cross examined so will need more information on what the accusations are. Ultimately, I need to share with them the details of the report and outcome which are marked as private and confidential. I think my best approach to this is to write to the ET and respondent as soon as the hearing is scheduled informing them that I will be sharing these documents with potential witnesses in order to progress my legal claim and as such this would not constitute a breach of trust or be classed as misconduct. Is this the right approach, if not what should I do?

[ULA]

You are still in the early stages of the process of your claim for unfair dismissal, which may get listed for later this year. In the meantime there may be a Preliminary Hearing (PH) and there will need to be a Case Management Order (CMO) which is the document that sets out the timetable for when action by both parties needs to happen in preparation for the final hearing. The key elements of this are :

1. Agreeing the bundle of documents that will go into the trial bundle.
2. Putting that bundle together which is normally the responsibility of the respondent.
3. Getting that agreed bundle paginated and indexed then sent to the other party in order that witness statements can be finalised with bundle page reference numbers.
4. Date for exchange of witness statements.
5. Dates by which the Tribunal needs copies of the bundle and witness statements.

There is an ongoing duty of disclosure throughout the ET process of all documents relevant to the claim by both parties, whether they are helpful to that party or not. So a short answer to your question is that all the documents whether they are listed as private and confidential, if they are relevant to the claim, will need to be disclosed and form part of the hearing bundle.

Your witnesses should be writing statements based on what they witnessed about the events that you are making claims about and in that there would only be references to documents they would have been party to. You cannot given them a whole host of documents they knew nothing about and ask them to make a statement on them.

At the moment there is no need to write to the ET.

I have linked to the ET Rules of Procedure which would be useful for you to familiarise yourself with as you go through this process.

https://www.legislation.gov.uk/uksi/2013/1237/contents

[pc0101]

From the way I gather the ET works, major decisions on cases are made by the judges and then all the paperwork for this is performed by administrative staff. It has been indicated to me that a judge has ruled on my case and that it will be listed for a 2-day hearing. So the admin staff are now just doing the work to prepare the CMO and schedule everything, this should all be complete in the next few days and official letters sent out.

The respondent's case against me is almost entirely devoid of specifics and evidence and really boils down to the statements of a manager and a few people that work for them. The respondent's position is that, because they have these statements and they all say the same thing then that is sufficient to dismiss me. My explanation is that the accusations are false and all originate with the person I lodged the grievance against, the statements all match as they are taken from reports to this manager who are simply repeating what this person said.

I had assumed that the criteria for dismissal would be higher than a few people saying the same thing and that specifics and evidence would be required for a fair dismissal, but the respondent seems to be persisting with their defence on the grounds that it is sufficient, and they have hired an expensive solicitor to back that view. Obviously, I am aware that solicitors will try anything, but I'm concerned that they might be successful with this strategy, and I want to counter it.

The main thrust of my case is that without specific incidents something cannot be 'proven' but as a second line I also want to have my own set of witness statements (at least as many as they do) that say I did not exhibit this behaviour. I expect that the respondent will only be able to muster 2-4 people to act as witnesses against me, whereas I believe I will be able to get around 10-15 current employees to provide witness statements saying the opposite. I have been told that bringing this many witnesses to a hearing would be highly unusual, but I feel like it is my only option to defend against these accusations. Although it would be unusual to do so, do you think the judge will prevent me from bringing this many witnesses?

The respondent has indicated that even if my dismissal is ruled unfair they want my claim reduced based on the fact I would have been dismissed if a fair process had been followed. Again, I am expecting them to use the statements from the manager to back up the 'would have been dismissed anyway' claim and so I will need to be able to challenge these statements anyway should we get to that point.

The issue I am having is how I give the witnesses the context of what information I am asking them to provide as if they don't know what I have been accused of they can't provide information relevant to that accusation. There is no reason for them to expect the accusations against me as they are completely orthogonal to by actual behaviour so they wouldn't have a clue where to start if they aren't given a specific context. For example to defend against 'he regularly doesn't follow procedures and process' I need to give them the context, so they know to comment on if I do or do not follow process and procedures. Do you think it is reasonable for me to format the witness statements as a kind of questionnaire where I have questions like:

• Have you ever experienced PC0101 not following procedures and processes?
• Has PC0101 ever asked you to not follow procedures and processes?
• Have you ever experienced anyone else not following procedures and processes?
• Has anyone else ever asked you to not follow procedures and processes?

Then there would be a box below each question to provide their response. I could then take each accusation in the report and turn it into a question to be provided to the relevant witnesses that I believe can say that that did not happen or is not true.

I want to ask the question about other people doing the things that I have been accused of, but did not do, as I know that these things were actually regularly done by other people with no consequences. This shows that not only have I not done these things but even if I had done these things then taking action against me would have been unfair as no action has been taken against these other people, this is my final line of defence.

Any ideas or comments welcome.

[ULA]

Those of us that deal with the ET system on a regular basis would consider your opening paragraph to be a simplistic interpretation of what happens through the process of a claim. However, if a judge has ruled that the case warrants a two-day hearing then you will receive correspondence from the ET confirming that with the date it has been set for. If the Judge has decided on the requirement for a PH in advance of the final hearing then those details will be provided. If not then you should be provided with the CMO.

You state "I expect that the respondent will only be able to muster 2-4 people to act as witnesses against me, whereas I believe I will be able to get around 10-15 current employees to provide witness statements saying the opposite."

The Judge is probably not going to welcome 10-15 witnesses having to be cross examined, redirected and then take any questions from the panel which in itself could take up or nearly take up the full 2 days of the hearing. I appreciate you want to do the best you can to set out your claim against the respondent (supported by a solicitor) but do not frustrate this by "trying the patience" of the Judge and panel with a succession of witnesses saying very similar things. So I would suggest this many witnesses would not be a wise move.

On your para:

"The respondent has indicated that even if my dismissal is ruled unfair they want my claim reduced based on the fact I would have been dismissed if a fair process had been followed. Again, I am expecting them to use the statements from the manager to back up the 'would have been dismissed anyway' claim and so I will need to be able to challenge these statements anyway should we get to that point."

This is a reference to what is known as the Polkey reduction (after a famous case Polkey v AE Dayton Services Ltd) and is a cutback in the compensation amount made to a claimant after a successful unfair dismissal claim which reflects the likelihood of a fair dismissal in any situation. The reduction made to the compensatory amount under Polkey is done to establish the fact that whether or not the employer had taken certain procedural steps while implementing a dismissal, it would not have made any difference to the dismissal decision. Therefore, if an employee is able to successfully claim for an unfair dismissal, the Employment Tribunal will award a compensation amount that will be deemed to just and equitable under all circumstances. It will therefore not necessarily follow that the claimant receives the full compensation amount and might even sanction some deductions because the entire case needs to be equitable for both parties.

Any witness that you want to give evidence at the hearing will need to provide a witness statement in advance as outlined in my post #11. The starting point for any witness statement is the evidence of fact that the witness can give, it should be in the witness’ own words so no you cannot do as you have set out in your post and get them to write their statement by responding to questions you have set. Their statement should avoid argument, expressions of opinion, submissions about the issues and observations about the evidence of other witnesses. What they need to set out so far as they can is what happened, what the witness says they did, what they knew or thought or believed or intended, or, the meaning or content of documents to which they were a party where they can comment properly about them and where the meaning or content of that document has been called into question. That is far as they can go.

The questions you have set out would be ones that you could use in the hearing.

Your change to "ask the question about other people doing the things that I have been accused of, but did not do, as I know that these things were actually regularly done by other people with no consequences," will need to be ones that you ask the witnesses even those for the respondent at the hearing.

[pc0101]

My understanding is that I will not be able to ask my own witnesses questions at the tribunal and that their witness statements should contain everything they intend to say at the tribunal, the only new information would come from cross examination from the respondent.

The problem I have is that the events on which the respondent based my dismissal have not been provided to me, in the investigation report and hearing outcome documents they allege that there were lots of incidents but they very deliberately do not detail them, what they do instead is state things such as; ‘based on interviewing Persons 1-4 it is clear that PC0101 demonstrates a clear pattern of behaviour where he regularly does not follow process or procedures’. This is, in my opinion, because I have always followed the process and procedure and so they don’t have any genuine incidents of me not doing so, if for example, they had presented me with a list such as; ‘on this date, PC0101 did this, which contravened this process and resulted in this harm’ then it would have been very simple for me, I could simply have gathered messages/emails/work records and witness statements that demonstrated that each of those incidents did not happen.

My expectation is that the respondent will not reveal any of these alleged incidents to me at document exchange, but they will suddenly appear in the witness statements of Persons 1-4. The respondent will claim that these incidents were the ones that were summarised in the report but that they were only ever given verbally during the interviews with Persons 1-4 and never written down. Since witness statements are fixed at exchange, I will not have an opportunity to gather witness statements or evidence to counter these new accusations as they will be the first time I have never seen them. I think this strategy would likely result in them losing the unfair dismissal case, because the process would have been unfair for not providing me the details during the disciplinary process, but it will still be too late in the process for me to gather evidence and witnesses to counter these new accusations, so they will be presented to the judge unchallenged. The judge could then decide that they are true and that even under a fair process I would have been dismissed, thus my claim is reduced and the respondent effectively wins.

What I am trying to do is have my witnesses provide statements which inform the judge that they were able to observe my behaviour and would have been aware if I had not been following process or procedure and they did not observe any such incidents. This is the truth, they genuinely were in a position to observe such things and they have never observed them (because they have never happened). Then when these new incidents suddenly appear in the respondent’s witness statements there will still be statements from my witnesses that back up my position that these incidents did not occur. It must surely be the case that you can direct witnesses on what topic you would like them to write their statement?

[pc0101]

As an alternative strategy would it be possible for me to use the fact that they have stated they intend to seek the Polkey reduction to request that they include in the bundle all information that they intend to use for this. Specifically I would request that they include an itemised list of all the times I failed to follow process, what the process was I failed to follow, how I failed to follow it and what the harm to the business was. They implied in the report that they have all this information since that is how they made the statement that I 'regularly did not follow process and procedures'. Even if this was only provided verbally during the investigation they should have documented it, or at least be able to retrospectively do so and include it in the bundle. This would be really effective as it puts them in a difficult position, if they provide this information in the bundle then it weakens their defence against the unfair dismissal because it clearly identifies information that wasn't provided to me and since the bundle is before witness statements it gives me an opportunity to gather evidence and witness statements to challenge this list of incidents. If they choose not to provide this list in the bundle then they will have very little to use to in order to prove I should have been dismissed and apply the Polkey reduction. Could this work?