Disclosure

[Mark3482]

Also, my previous line manager has now come forward and offered to be a witness. He has told me about email exchanges he had with senior staff which are relevant. Can I request additional disclosure in the form of a DSAR for this, from the Respondent now?

[ULA]

Post #15 response

Section 7 of the Electronic Communications Act 2000 provides for the use of an electronic signature in an electronic communication and und Civil Procedure Rules that includes Witness Statements. However that is subject to any direction of the tribunal on a case by case basis that the signature on a given statement of truth must be in a specified form, for example by being "wet ink".

Post #16 response

Two options:

a) do a DSAR being specific about the parameters of those emails; or
b) just simply write to the respondent asking to disclose them without the formality of a DSAR.

You know the respondent better than me, so you may consider one option more preferable than the other, depending on the circumstances.

[Mark3482]

I have had a preliminary hearing and it’s been agreed that we should first go to a Material Factor Defence hearing (MFD). The CMO simply states that the parties should supply all relevant information (disclosure and witness statements etc.) As this is an MFD, should I include a Schedule of Loss or will this be required later, if the MFD hearing goes in my favour and we go to a final hearing? Also, my witness statement is currently over 30 pages long. I know this is my one opportunity to have my say, but is a lengthy statement detrimental in any way? Does it cause the Tribunal to lose interest and not read it all?

[Mark3482]

I have had a preliminary hearing and it’s been agreed that we should first go to a Material Factor Defence hearing (MFD). The CMO simply states that the parties should supply all relevant information (disclosure and witness statements etc.) As this is an MFD, should I include a Schedule of Loss or will this be required later, if the MFD hearing goes in my favour and we go to a final hearing? Also, my witness statement is currently over 30 pages long. I know this is my one opportunity to have my say, but is a lengthy statement detrimental in any way? Does it cause the Tribunal to lose interest and not read it all?

[ULA]

I presume that this is to determine whether the respondent has a material factor defence argument against your claim and therefore allow it to proceed to final hearing.

If so I doubt the SoL will be needed, however always wise to prepared and I would at least have it updated and with you for the MDF hearing.

I have known of much longer WSs however you do have to ensure that the Tribunal is engaged, so if you can cut out some wording but still get across your points then it would be worthwhile. Maybe get a family member or friend to read through it.

[ULA]

Hi Mark3482 not sure why you have posted the same post twice. Just to gently remind, we are all volunteers on this site, so not always online, as we provide our advice around our other respective commitments. We are always notified when someone has made a post on a thread we are advising on, so when we do logon we know that someone is needing our help.

Hopefully, I have now answered your posts.

[Mark3482]

Hello. Apologies, when I logged on with a different device after my post on the 29th, I couldn’t see it or any reply so I reposted.

I have another enquiry please. I have some emails provided in my DSAR, from a senior staff member within my last company. I have asked the Respondent if they can check to see if these were replied to and she says her client has no trace. I don’t believe this to be the case. Every time I’ve asked for the other side to check/supply information, they always say the same thing. Is there a possibility they’re withholding information which may be damaging to their defence? Is there anything further I can do or do I have to accept their response?

Also, the deadline for exchanging witness statements was 2 days ago. For over a week now, the Respondent keeps saying that they’re chasing statements. They’ve had 8 months to do this. Again, is there anything I can do? If the deadline has passed can I refuse to accept them or will the Respondent still be able to submit them.

[ULA]

They are required to disclose al documents that are relevant to the claim regardless of whether or not they have a negative impact on their defence and likewise you go in respect of your claim.

If you suspect these emails from the senior manager were replied to by whomever they were sent to then you could send a DSAR requesting that the respondent provides the specific responses to those emails, which may be an initial option. However ultimately they cannot disclose what they do not have.

I presume you have not sent your witness statement to them. Two days is not unheard of and there is a 14 day "grace" on CMO deadlines between parties so long as it does not impact dates for sending documents to the Tribunal by required deadlines. Albeit that this "grace" time should be agreed by both parties.

[Mark3482]

Thank you, again, for the valuable guidance. They have confirmed in writing what searches they did to try and find the information, so I shall leave it.

On another note, I have to apply for adjournment as one of my witnesses is now unavailable. Should I apply for an adjournment or postponement and should I quote anything within my application I.E., Rule 30(1)?

Thanks.

[ULA]

At least you have the detail of what searches have been carried out to find the information you were requesting.

You are asking for a postponement.

You need to set out the reasons why your witness has now become unavailable, given that they would have already been aware of the date. You also need to provide any future dates that should be avoided because you are your witnesse/s are unavailable i.e. future holidays.

You need to send this to the ET and copied to the respondent.

[Mark3482]

Hello. Could you please advise me on the following:

- One aspect of my history is that I was wrongly taken through an internal disciplinary process. I mentioned all details of this within my witness statement, as part of the history. The Respondent and all their witnesses have not mentioned it within their disclosure. Is this something could damage my case, as I have mentioned it? I don’t believe it’s relevant to the Equal Value aspect of my claim.

- A former temporary employee was offered the post I was in, prior to me, but at a salary grade higher. He confirmed this verbally a few times, most recently earlier this months where he said he would
provide a statement confirming this. He has since gone quiet and has not provided anything further. Is it worth informing the Tribunal of this and requesting a compulsory attendance for the temporary employee or is this fact not of much evidential value?

Thank you.

[ULA]

I can answer as follows:

1. You have stated that your claim is for equal pay and constructive dismissal if the issue of being taken through an internal disciplinary process wrongly has no relevance to your claim then what is the purpose of adding it to your witness statement?

2. If the person is not prepared to write a witness statement then you cannot expect them to come to the hearing. To ask the tribunal for a witness Order would be for someone who has provided a written statement but who has refused to attend the hearing. Again what evidence can this person give that would support your claim? Are they a comparator for your equal pay claim?

[Mark3482]

Hello,

Thank you for your reply. To answer point 1. I was simply trying to provide a full history of events (building a full picture due to management treatment toward me.). If I did include this, would it harm my case in any way? Point 2. This person is not a comparator but a person who was offered my position at a higher grade. Through my employment, the organisation refused to accept my job grade incorrectly. This shows that it could have been graded higher. The person could confirm that he was offered the post at a higher grade.

Finally, are witnesses allowed to view the Bundle? I have received an email from Egress which has notified me that a witness for the Respondent has viewed the Bundle. I don’t see how this can be fair.

[ULA]

In reply.

1. It will not necessarily harm your case but just be mindful as to the length of your witness statement. Plus if you have included it and already exchanged witness statements then there is nothing you can really do about it now.

2. I can imagine this will be a very short witness statement even if you do get them to write one they will also need to be available to attend the final hearing.

3. Yes witnesses for both parties are allowed access to the bundle. When they sign off on their statements they also have to check any cross referencing to pages in the bundle.

[Mark3482]

Thank you very much.