How do I progress my ET case?

[ULA]

Just on a procedural point, the hearing process, which you do need to familiarise yourself with, is that you will be allowed what is called "examination in chief" prior to your witness being cross-examined by the respondent. This allows you to ask questions of your witness that may be needed to respond to points made for the first time in the other side's witness statements.

Currently all you have is the ET3 and any Grounds of Resistance from the respondent. I presume you do not know, at this moment, what from their side they are proposing to include in the bundle. You also have input to the content of the bundle (albeit the respondent, as previously stated, will be responsible for paginating and collating it). As part of your input to the documents for the bundle, you can request to have included the detail of all the evidence they have of the allegations of which you were accused. This should include the examples of where you did not follow procedure, if that was what they based their decision to dismiss you on. They need to evidence that in the bundle to be able to defend your claim. If they do not provide that evidence then you can request it from them and in the event it is not provided and you can demonstrate it is material to the claim, then you can make an application to the Tribunal.

I hope you have considered what I have said about the number of witnesses and that an unnecessary number of witnesses will antagonise the tribunal. If a witness can only verify the evidence given by another witness, then seriously consider whether they are needed. If the witness can give a first-hand account of an allegation made by the respondent that is denied by you, then their evidence may assist the tribunal. Taking this into account you then need to find out if these individuals are willing to be witnesses for you. If they are still employed by your ex-employer there may be some reluctance to be your witness, in which case again you need to consider what lengths you will go to force them to do so.

Once you have an agreed set of witnesses, then you can ask them at this early stage in the process, whilst events etc are still easier to recall, to start preparing their statement. What you may want to do is think about and set out any particular events, areas of dispute, missing information, and / or conflicting evidence would it be helpful for the witness's statement to cover? Also consider points that the respondent's potential witnesses are likely to cover in their statements? Ensure the statements from you witnesses cover those areas as far as possible. What you cannot do is "put words in the mouths" of your witnesses, or have a serious of statements that all appear to be answering a pre-determined set of questions. It is their statement of the events they witnessed and they have to not only declare a statement of truth when they sign it, when they are called to give evidence they have to swear that they are telling the truth in respect of what they witnessed.

At this stage, without the content of the bundle being known, it will be difficult to direct them to any documents or other evidence it would be useful for the witness to comment on. This means that you may need to ask them to revisit their statement once you have details of the bundle content. Any reference to documents in the bundle contained in the witness statement will need to be referenced by page number.

[pc0101]

Thanks for all your advice ULA.

I think I will request that all the incidents that have contributed to my dismissal be tabulated in the bundle, with unique identifiers, dates, explanations, reference to processes broken and the harm caused (company policy requires harm for something to be considered gross misconduct). I will also request all the evidence that they have for each incident be included along with the documents that specify the process that was broken. I will also request all the notes with regard to the investigation and transcripts of interviews etc. If they performed a proper investigation this should all exist and have been retained. I think they will struggle to do this since I haven’t actually done anything wrong so they will either be unable to provide the incidents or they will have to be fictitious. If they refuse to do this I will make a request to the ET to mandate this information. That should cover the bases, if all the details are revealed I can easily prove they didn’t happen, if details are not provided but then included later in witness statements then they will have failed to complete the bundle correctly and if no details are provided their case falls over very quickly.

The thing I am concerned about is that the respondent has been deliberately secretive throughout the entire process, because they realise if I have detailed information I can prove things are fictitious. I am expecting them to continue this during the case, only bringing things at the last moment so that I cannot easily dispute them. I think my best recourse is to be very proactive during bundle creation and clearly state everything that should be in it. Then they cannot bring any surprises later without it becoming clear that they deliberately excluded things from the bundle. However, if they do still try and do this, is there a mechanism or citable case that allows me to either have this new information excluded or for the process to be suspended for me to respond to it? I don’t want to get caught out because I don’t know the way to prevent them from doing things they should not.

With regard to witnesses, I suppose I am in a slightly unusual position as I was very, very good at my job and helped a lot of other people during my employment. So although I have been unable to discuss the details with any of my former colleagues, due to confidentiality, many have contacted me to express their shock and dissatisfaction at what happened, to recommend I take legal action and to volunteer their services as witnesses should the need arise. So, I will have my pick of who I choose to bring as witnesses. The respondents case, unless they provide the extra details, is based on the fact that 4 people have said there were incidents where I behaved a certain way and if 4 people said it then it must be true, further the respondent has stated they do not need be provide me with the details of these incidents and no proof other than these 4 people saying it is required. I was planning on bringing quite a few of my former colleagues as witnesses who could say that they never observed me behaving this way so that I would have more than the 4 the respondent has, but as you say this would just unduly delay things and likely annoy the ET. I think as an alternative I could choose just the team leaders.

Is there an assumption for a side (like the assumption of innocence in criminal cases) on an ET and what is the burden of proof? Do I as the claimant have to prove that the respondent acted unfairly, do they have to prove they acted fairly or is a decision just made on the balance of probabilities? Similarly if we move onto the Polkey reduction, does the respondent have to prove that I did things that warranted dismissal or do I have to prove that I did not do anything. If the respondent just states, he did xyz and that warrants dismissal do they have to prove I actually did xyz or do I have to prove I did not? Again my concern is that if things are just the balance of probability and I don’t know what xyz is until the hearing then all I will be able to do is deny doing xyz, whereas the respondent can provide false statements that I did xyz.

[ULA]

Please read through my previous posts there will be a CMO that will clearly set out dates by which actions need to be completed. So the majority of documents that each side will rely on at the hearing will be in the bundle will be "finalised" before the deadline for exchanging witness statements. Yes there is an ongoing obligation for both sides to disclose information, which may mean that a few documents might be provided after the deadline for the bundle preparation but it will not be the majority of them.

You are claiming unfair dismissal therefore the burden of proof will require you to evidence that the respondent's decision to dismiss you was unfair. The burden of proof will then shift to the respondent to evidence that your claim is incorrect and they dismissed you fairly. The judge must then make a decision on the claim based on the "balance of probabilities".

In terms of Polkey, the respondent needs to prove that the decision to dismiss fell within a band of reasonable responses, even if there were procedural errors in coming to that decision.

[pc0101]

What is the privacy attached to the bundle, can it be freely shared with anyone or is it restricted to only those who need to view it for the case?
Are employment tribunals held openly so anyone can attend and witness the proceedings?
If so would the bundle then become public so that anyone can view?

[ULA]

I am not sue what you mean by can the bundle be freely shared with anyone. The audience for a hearing bundle will be the Tribunal panel, both parties and their respective representatives and any witnesses each party has.

Yes Tribunal hearings are public, unless for a very specific reason they are held in private.

A bundle would not be placed out for members of the public who may attend to view. However, during the course of the hearing, as parts of the bundle are referred to and read out, public attending would hear those exerts.

[pc0101]

I finally got the hearing date and CMO through from the ET, it has however been scheduled as a 2 day virtual hearing in June. I would prefer for it to be an in person hearing for myself as I live in a rural area where my connection to the internet cannot be fully relied on. Can I request that my hearing be changed to an in person and if so how should I go about this?

[ULA]

You would need to make an application to the Tribunal, clearly setting out your reasons for requiring a face to face hearing. Any correspondence would need to be copied to the respondent.

[pc0101]

I worked at the company for nearly 5 years, when I started at the business, I was not a team lead, however I said at the interview stage that I wanted to become a team lead and a verbal agreement of sorts was that I would become the team lead as the business grew. At that time the business was smaller and less formal and there wasn't a clear management structure. Over time my manager started to step away from day-to-day duties and delegate these to me and I acted like a team lead in many aspects (though never line management), other people treated me as the team lead (they all wanted me to do this role) and over time I kind of just assumed the role. The business became more formal and my manager left and one day it was just written down on the organisation chart that I was team lead - I did not receive any documents to do with this change, or a change in benefits. I assumed line management responsibility at this point and undertook the role as I understood it.

My employer has specified in their response that my role was a team lead and specified a long list of duties and responsibilities that I had. These are not completely unreasonable, but they are a little over the top, there is not anything in them that I did not do but they do give a distorted view of what the role really was.

The respondent has stated that some benefits were not established in contract and so they should be excluded from the claim so morally I would not have an issue with a counter argument that no responsibilities or duties were established in the contract.

Should I try and use the fact that I did not receive any formal notification of my change of role or a specification of the responsibilities and duties and that I therefore never accepted these? Would the ET consider this to be a significant point of law or would they simply say that as I did not raise any objections at the time then the role was accepted and if the responsibilities and duties are reasonable for that role then they were also accepted? Should I respond with a more realistic description of the duties and responsibilities or is this point just not worth pursuing on any level?

[ULA]

It is not uncommon for roles to morph due to the skills and experience of the person. You even say that "These are not completely unreasonable, but they are a little over the top, there is not anything in them that I did not do" thereby agreeing with the respondent that those were in practice your duties and responsibilities. I think you would need to be more specific about what then leads to you to say "but they do give a distorted view of what the role really was."

Other than a job title, which can change over time from the original contract, albeit normally confirmed in writing, duties and responsibilities are rarely in a contract and usually contained within a role profile / job description.

Given that you carried on undertaking these duties and responsibilities, did not raise an informal or formal grievance about doing them or refused to do them then my view is that you cannot not say you never accepted them. Therefore in answer to your question:

Would the ET consider this to be a significant point of law or would they simply say that as I did not raise any objections at the time then the role was accepted and if the responsibilities and duties are reasonable for that role then they were also accepted? Yes.

You may want to point out significant differences in duties and responsibilities, if relevant, in your witness statement as that is now the only place to respond on this. Also if you have documents that can provide evidence of the difference then they should be submitted for the hearing bundle.

[pc0101]

My case is ongoing and we are in the disclosure phase.

The respondent has repeatedly claimed throughout the disciplinary process and then in their ET3 response that they 'reviewed lots of evidence' and it all proved that I had committed gross misconduct etc etc. I always knew this to be untrue since no such evidence could exist as I didn't do anything wrong, at disclosure the respondent provided 6 short witness statements as the sum total of their 'evidence' and then proceeded to provide back to me all the evidence I had supplied to them during the disciplinary process that showed I hadn't done the things that I was accused off. I repeatedly asked for a full disclosure of all relevant documents and pointed out many relevant documents that they had not included. They blanked me and refused to engage, in the end I wrote to the ET to report them for noncompliance and asked the ET to strike out their response. There were several clear examples of their nonconformance, for example they specifically state in their investigation report that they reviewed by performance records and then at various points in the report and outcome they refer to this performance record as proving their accusations. However, they did not include my performance record as a relevant document, and I specifically requested it in 3 emails and they still did not provide it. This is lodged with the ET and I am awaiting the respondent's response to it and for the ET to make a judgement.

In the meantime, we are in document exchange where the respondent should provide the documents they disclosed as relevant (I have requested them). They have provided them as a single PDF with the documents one after the other. I have asked them to provide demarcation in the PDF so it is clear where documents start and end and a statement that all the content after the table of contents is unmodified and contemporaneous, again they have just blanked me. The reason for my request is that I am pretty sure that they have falsified or doctored the witness statements. This is because during the process I was accused of various things and these were all provided to me as 'proven' in the investigation report. I then produced a lot of evidence to disprove these accusations and as a result in the final outcome they had changed the accusations to accommodate the evidence I provided but said they were still 'proven'. For example, I was accused of causing harm to a relationship with a partner by my behaviour, I denied the behaviour and provided evidence that showed that in fact the supplier and I worked exceedingly well together and that I had personally negotiated multiple concessions from them. In the outcome the accusation had changed to say that I had exhibited the behaviour and then been told off and supervised and that because of this telling off and supervision my behaviour changed and that was the reason the relationship was OK. This never happened, I was never spoken to about it or supervised and they ahve not provided any evidence I was, they simply made up a new stroy to explain away my evidence. It looks like the witness statements have been modified to be inline with the final outcome rather than being inline with the investigation report, they refused to provide the statements to me during the original process so I have no way to know fir sure. This does give me a line of attack on the investigation report as it now draws conclusions that are not contained in the modified witness statements which form the input to it. This is reasonable but my preference would be to demonstrate that the witness statements are falsified as this would obviously be much more serious. I have noticed that they have made one mistake in one of them and have used a job title that the person did not have at the time and only gained 3 or 4 months later, so clearly must have been added after the fact. However, with the disclosure being provide as a single PDF and no clear demarcation between documents I am concerned that the respondent will try and say this was just an error forming the PDF or that the job title was added later as meta data to describe the statment so I really want to make the rspondent explicitly claim that the documents are contemporaneous and unchanged before I reveal that I know they are not.


Am I doing the right thing by trying to expose their refusal to disclose now and their potential falsification of documents or should I just hold off until the ET hearing itself and present my concerns then?

[ULA]

Has what the respondent sent you, going to be documents they are including in the final bundle? I am not fully understanding the issue as the final bundle will be paginated one page after another in chronological order (unless otherwise stipulated in the case management orders) with a detailed index page at the front. There will be no demarcation between one page and the next.

The issue of them not disclosing documents which I presume is your reference to "refusal to disclose now" seems to have been covered off by your application for disclosure which is still waiting for judgement. If you believe they have falsified documents then you need to have a very good reason for making that accusation and you can ask then to provide the originals for meta data testing.