Respondents legal rep

[ULA]

The answer to your question is:

1. Yes documents can be added to the bundle after exchange, however you need to be aware of the deadline to send the bundle to the ET for the final hearing . Your post #7 states that the final hearing was in Sept, I presume this has not gone ahead. When is the new date for the final hearing?

2. As the grievance documents have been included then the decision outcome should have been in there as both parties are required to provided ALL documents relevant to the claim or the defence of the claim whether or not it harms their particular perspective. In this case you can just ask the respondent to ensure they are included in the bundle no need for an SAR.

[Dave2508]

So i have been reviewing the documents and have had a thought.
If the employer identified a mental health condition in the referral to the professional body. Then surely a duty under the equality act is established.

ACAS say this. If an employer believes someone might have a disability, they should take all reasonable steps to find out more about the support they might need.

Then if a formal diagnosis is then made by a mental health team following hospitalisation and the employer is also aware of this.and no attempt is made to support The mental health then would this be a failure to make reasonable adjustments.

My concerns with this are that the employer is not recognising the mental health as the claimant was concentrating on other disabilities when she started the claim.

My other thought on this is that malice could be argued in that the employer just added the mental health into the referral in an attempt to cause more harm to the claimant.

[ULA]

"If the employer identified a mental health condition in the referral to the professional body. Then surely a duty under the equality act is established"

It would establish that the employer was aware of the mental health condition, however it would need to be established that the condition met the criteria of being a disability under the EqA.


"Then if a formal diagnosis is then made by a mental health team following hospitalisation and the employer is also aware of this.and no attempt is made to support The mental health then would this be a failure to make reasonable adjustments."

This would depend on what if any reasonable adjustments had been recommended by the mental health team or by the claimant and what the response to those requests were by the employer, including any reasons why adjustments could not be made.


"My concerns with this are that the employer is not recognising the mental health as the claimant was concentrating on other disabilities when she started the claim."

So is the respondent not accepting a mental health disability? If so it will be down to the claimant to prove that the respondent knew or could reasonably have been expected to know there was a mental health disability with evidence to prove this.


"My other thought on this is that malice could be argued in that the employer just added the mental health into the referral in an attempt to cause more harm to the claimant."

What legislation are you going to rely on to argue this point? There is none that I know of.

[Dave2508]

The time line for this was late 2018 for the initial view from the employer. A diagnosis was at Easter 2022 with a detention under the mental health act and a initial diagnosis of psychosis. Medical certificates were submitted to the employer. A further detention happened in July 2023 Four months before termination. She now has a diagnosis of Bi polar disorder. At the appeal for her dismissal in early 2024 Unison did raise the Mental Health during this appears to have been ignored. So they are where aware of the Mental Health issue.

Mental health was not on the ET1 form as a disability. It only came up through a discussion with myself and the judge at a preliminary hearing where i mentioned it.as the claimant had an episode during the hearing Then the evidence in the bundle from the employer sparked my interest.

Arguing malice is more for the professional body as they have there own code of conduced. And having that conversation in the court created a record for later use. The only way i see this being used is to demonstrate how the claimant was treated and could spot light the managers willingness to make things up.

[ULA]

It certainly appears that it can be argued that the respondent was aware of a mental health condition which meets the criteria under the EqA.

So long as you are aware that arguing malice has no employment legislation to support it, however you can use it to demonstrate behaviours by the respondent.

[Dave2508]

So our case has been postponed until next year. The tribunal judge was unhappy with the case as set out by the tribunal its self. It was offered for the case to be shortened by the employer cried off and want a new dates.
Given that the employer is away to reform its case can i assume that further evidence can be submitted in this time by both parties.

My second question is can a conflict of interest make a process unfair.

My example of this is that a capability process is suppose to be supportive.

So if the manager running the process was to make a complaint to a professional body stating that the employee was incapable of doing their job at stage one of the process. And then continue on with the process. Would this not be a conflict of interest.

[ULA]

I am unclear as to what you mean by "The tribunal judge was unhappy with the case as set out by the tribunal its self."

Fundamentally both parties should have been ready for the final hearing so unless new evidence comes to light by either party that is relevant to the claim or the defence of it there should be relatively little to add into the bundle.

It would depend on whether the employer had a responsibility, under the governance of the professional body, to report on the incapability of a member of staff.

[Dave2508]

Hi
I have been asked if i would like to make a submission to the employment tribunal.
The tribunal Judge has said its not necessary for me to complete a submission but i could do one if i wanted to.
Just want to get some views on this.
The hearing has been completed and was 7 days long.
The case related to disability discrimination (failure to make reenable adjustments) victimisation and unfair dismissal. ( by Email ). The case focused on an an 8 year long capability process.

Thanks

[ULA]

Was there not enough time at the end of the 7 days for oral submissions from both parties?

[Dave2508]

Hi

As it stood there was a full half a day left on the time table when i finished my final clarification questions. The judge spoke about submission the day before and had discussed a final hearing day on the 25th Aug for submissions and final outcome.

[ULA]

I would suggest that preparing a submission would be a worthwhile investment of time. If the hearing is completed and it will be a further 2 weeks for submission and final outcome it will assist the judge in recalling the matters of the case. Your submission should assist the tribunal to understand:

1. What your case is about
2. What facts you rely on
3. What legal principles apply
4. Why the tribunal should find in your favour