Application for better Particulars on the respondents ET3

[ULA]

My responses to your posts are:

Post #60

Legally privileged are those between your company and their solicitor and not you cannot ask for any details of them. I think you are making too much from their statement which is a very generic statement a form of which I have seen in previous responses to SRA requests.


Post #61

You have been given the option that if you have any questions relating to the outcomes of the Preliminary Hearing (you were not attending a Final Hearing where Judgements are made for which written reasons can be given orally or in writing) which require clarified, then you can set those out in writing, to be referred to the Employment Judge to respond to.

This will be the process you will need to undertake to get more specifics on the decision.

[Benny8902]

My responses to your posts are:

Post #60

Legally privileged are those between your company and their solicitor and not you cannot ask for any details of them. I think you are making too much from their statement which is a very generic statement a form of which I have seen in previous responses to SRA requests.


Post #61

You have been given the option that if you have any questions relating to the outcomes of the Preliminary Hearing (you were not attending a Final Hearing where Judgements are made for which written reasons can be given orally or in writing) which require clarified, then you can set those out in writing, to be referred to the Employment Judge to respond to.

This will be the process you will need to undertake to get more specifics on the decision.

For Post #61 - Rule 62(1)(2) mandates that Written Reasons are provided for any substantive or procedural matter though? So, would that not come into play and the Tribunal would have to provide a those reasons?

Sure, clarity is fine, and I know what she said at the hearing but that still doesn't seem in keeping with the OO of tribunals.

[Benny8902]

Hi ULA so the judge has come back and said that the written reasons are the PH Note? I don't think it is as it didn't set out the reasoning.

Then the judge email says that if I want to vary, or anything to apply under rule 29.

Very confused now

[ULA]

You say "the judge has come back ..." is this further to what you received as set out in post #60? If so is this as a result of you submitting correspondence to the Tribunal and if so what did you send?

I would need to see what the the PH Note says. Please redact and post up a copy or PM it to me but I will respond back on this thread.

[Benny8902]

You say "the judge has come back ..." is this further to what you received as set out in post #60? If so is this as a result of you submitting correspondence to the Tribunal and if so what did you send?

I would need to see what the the PH Note says. Please redact and post up a copy or PM it to me but I will respond back on this thread.

Will send through PM.

Well originally I sent an email asking for written reasons. Then they said nope can't provide. So I just copied what rule 62 says, and they responded about rule 29. Will redact the emails and PM those as well.

[Benny8902]

Sent as requested. I did have 1 extra questions.

Why didn't the judge make an order for disclosure of M Records to me? Seems weird

[ULA]

The Judge's latest response clearly sets out that Rule 62 which you relied on in your correspondence of 24 April is applicable in the case of a substantive hearing. A Preliminary Hearing is not a substantive hearing and therefore using Rule 62 as an argument is not the correct one to use. The Judge has helpfully directed you to a Rule 29 that will allow you request the decision/s made to be reviewed.

The Judge does not need to set out in detail the argument/s you presented, just that you did this and then correspondingly that the respondent set out why they rejected the application. The Judge has set out the reasons for rejecting your request in that the reasons you presented did not warrant a change from the norm and order witness statements to be produced. From my perspective, having reviewed the unredacted parts, of your Preliminary Hearing notes and others I have seen, there is nothing untoward with what has been set out.

The option that you now have is to detail your reasons for the Judge as to why they should revoke, suspend or set aside the decision not to allow witness statements and why this would be in the interests of justice.

I presume by M Records in your post #67 you are referring to medical records. What the Judge requires you to do in respect of this is set out at point 8 under Disability Status.

[Benny8902]

The Judge's latest response clearly sets out that Rule 62 which you relied on in your correspondence of 24 April is applicable in the case of a substantive hearing. A Preliminary Hearing is not a substantive hearing and therefore using Rule 62 as an argument is not the correct one to use. The Judge has helpfully directed you to a Rule 29 that will allow you request the decision/s made to be reviewed.

The Judge does not need to set out in detail the argument/s you presented, just that you did this and then correspondingly that the respondent set out why they rejected the application. The Judge has set out the reasons for rejecting your request in that the reasons you presented did not warrant a change from the norm and order witness statements to be produced. From my perspective, having reviewed the unredacted parts, of your Preliminary Hearing notes and others I have seen, there is nothing untoward with what has been set out.

The option that you now have is to detail your reasons for the Judge as to why they should revoke, suspend or set aside the decision not to allow witness statements and why this would be in the interests of justice.

I presume by M Records in your post #67 you are referring to medical records. What the Judge requires you to do in respect of this is set out at point 8 under Disability Status.

Fair point, the issue which I find is, the rule states:

• 1) The Tribunal shall give reasons for its decision on any disputed issue, whether substantive or procedural (including any decision on an application for reconsideration or for orders for costs, preparation time or wasted costs)

The 2 key points I pickup on are "disputed issue" and "procedural", would this not fall into those grounds? As most judges when they decide on this rule, "have" their own view of what the rule says and how it works.

[ULA]

As the judge has pointed out you are referring to 62(1) which the Judge has stated is not in relation to Preliminary Hearings as is is not a substantive hearing.

The Judge has given their view on what Rule you can use to further your issue in respect of witness statements being allowed.

[Benny8902]

As the judge has pointed out you are referring to 62(1) which the Judge has stated is not in relation to Preliminary Hearings as is is not a substantive hearing.

The Judge has given their view on what Rule you can use to further your issue in respect of witness statements being allowed.

So I could ask the judge to set aside her ruling on no witness statements for the moment and then this be decided at the next PH?

On the next PH which concerns disability status, as you seen from the document I sent, no direct order was made - So, I can submit everything that concerns the conditions I rely upon? Then can I also submit things I would like to use as evidence to prove they knew, such as grievances, outcomes, messages I found from SAR etc?

[Benny8902]

....

[ULA]

You can ask the Judge to set aside the ruling on witnesses statements as that is one of the parameters under rule 29.

The notes say in summary that you required to ensure that all the documents you want to rely on, including the GP report are lodged prior to the preliminary hearing which is purely to determine disability status. Yes, you can provide documents that prove your employer knew you had a disability, however the majority of the evidence is to prove that you are disabled under the meaning of the Equality Act 2010. This can be done via documents such as a GP report, any specialist consultant report, any occupational health reports and a disability impact statement.

[Benny8902]

You can ask the Judge to set aside the ruling on witnesses statements as that is one of the parameters under rule 29.

Thanks.

Few more questions.

So with Rule 29 then I have found Serco v Wells UKEAT/0330/15/RN which seems to confirm the "test" set out for set aside/etc of a case management order.

It seems to me that a Judge is restricted in what they can do.

Also what sort of arguement would it be that I put forth? The interests of justice comes in as Rule 2 of the overriding objective seems to play apart.

I'm just trying to find the best area in which I can lodge an application which will push it to convince the judge.

[ULA]

In Serco Ltd v Wells [2016] UKEAT 0330/15, case you referenced the EAT held that an employment judge should be sparing in the exercise of their power to vary or revoke under rule 29. The fact that an order should be varied if it is "necessary in the interests of justice" should be interpreted narrowly. While there may be rare and out of the ordinary cases where variation or revocation should occur, in general such an order will only be appropriate if:

* There has been a material change of circumstances; or
* The order was based on a misstatement.


The overriding objective of the Rules is to enable Employment Tribunals to deal with cases fairly and justly. There are certain criteria when dealing with a case fairly and the two that may be relevant in your situation are (a) and (c) set out below:

(a) ensuring that the parties are on an equal footing;

(c) avoiding unnecessary formality and seeking flexibility in the proceedings;

[Benny8902]

In Serco Ltd v Wells [2016] UKEAT 0330/15, case you referenced the EAT held that an employment judge should be sparing in the exercise of their power to vary or revoke under rule 29. The fact that an order should be varied if it is "necessary in the interests of justice" should be interpreted narrowly. While there may be rare and out of the ordinary cases where variation or revocation should occur, in general such an order will only be appropriate if:

* There has been a material change of circumstances; or
* The order was based on a misstatement.


The overriding objective of the Rules is to enable Employment Tribunals to deal with cases fairly and justly. There are certain criteria when dealing with a case fairly and the two that may be relevant in your situation are (a) and (c) set out below:

(a) ensuring that the parties are on an equal footing;

(c) avoiding unnecessary formality and seeking flexibility in the proceedings;

So set aside would come under those 2 issues;

Change of circumstances
The order was based on a misstatement?

I wonder how i could have an arguement of either of those.

Any case law that would be useful?


I did set out in my application originally points (a) and (c), but the judge didnt even seen to consider that. Her initial comment as before was "I have to agree with Respondent" then asked her opinion more before asking "if anything extra i wanted to add quickly", that comes into my points of the judge not considering my submissions which I laid out and how those would be achieved.