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Polkey and contributory fault
Hello
During a very complex whistleblowing to grievance to disciplinary to dismissal I've gone through, I've had my private life absolutely trashed by the people involved to the point that the ICO decided that the use of special category data belonging to my wife (who has never worked for the company) during the process was unlawful. Is it possible for the investigation to still be considered 'fair' given this?
I think we will need some more information to assist you.
I presume the investigation was part of the process prior to the disciplinary meeting and action being taken.
How is your ET claim progressing as a follow in to your below linked thread.
Whistleblowing not recognised by former employer - LegalBeagles Forum
I have a preliminary hearing on the 18th jan. My claim is as follows:
1. The Claimant brings claims against the Respondent as follows:-
a) Unfair Dismissal
b) Wrongful Dismissal/Notice
c) Automatic Unfair Dismissal in relation to public interest disclosure and/or health and safety
d) Unlawful Detriment
e) Discrimination on ground of disability pursuant to Sections 15, 21/22 and 27 of the Equality Act 2010
This was submitted by a solicitor, but I have since had to stop using their services as I cannot afford them. The grounds of resistance are pretty much denying everything, as expected, and demanding that the ET throw out the claim on grounds of it not having jurisdiction. Their resistance to this being:
"His claim to have been automatically unfairly dismissed for raising aprotected disclosure when he has not identified what acts he alleges
amounted to him making a protected disclosure within the meaning of s.43A
of the Employment Rights Act 1996 ("the Act");
3.3 His complaint that he was automatically unfairly dismissed in relation to
health and safety when he has not identified any basis on which he alleges
he had satisfied the required conditions under s.100 of the Act;
They then concede that health and safety concerns were given with:
"The Respondent's HR department received the Claimant's Initial Email on 14 November, following which ******* sought to arrange a call with the Claimant to discuss his email further.
Ahead of this, however, the Claimant then confirmed the 'at work' issues he was
seeking to pursue in an additional email dated 23 November 2022 (together referred
to as "the Complaint"). It is accepted that additional email did refer to health and
safety points for the Respondent to consider."
I've tried everything I can to get help with this but there just doesn't seem to be anyone who can.
Something else that has been bothering about the grounds of resistance is that it is littered with what is either inaccurate or completely untrue 'facts' which I find hard to believe a solicitor could make that many mistakes without realising. Is this something I should raise in the preliminary hearing?
In terms of a preliminary hearing just so you know what to expect, this hearing allows a Judge to begin to give the case some structure and to familiarise themselves with what the case is all about; its value (i.e. how much money you are asking for in compensation or settlement), and the complexity of the issues involved. The Judge also has the power to dismiss (“strike out”) parts of the claim and to limit what claims are heard at the full hearing.
Both you and the Respondent will have to agree the steps that will need to be taken to take the case to a final hearing. That means you will need to provide information about how many witnesses you might want to call to give evidence at the final hearing, as well as how and when you will send each other documents and witness statements that will form part of the final hearing ‘bundle’. The Judge will also want to agree how long, and on what date, the hearing will take place. All that information will form part of an agreed timetable between you, the Respondent and the Judge that you must stick to as closely as possible.
It is also an opportunity to tell the Judge and the other side about any changes you want to make to the claim which you submitted. You should remember that the Judge hearing the preliminary hearing is not the Judge who will hear the final hearing and that can sometimes be quite helpful, especially if you don’t have solicitors representing you. So, it is important to be as prepared as you can and to help with this, in most circumstances, the Tribunal will send to you and the Respondent a Case Management Agenda for you each to complete prior to the preliminary hearing. This is in effect a questionnaire designed to ensure that the Judge knows what the issues are going to be.
I am not sure what you mean about "a solicitor could make that many mistakes without realising." If the respondent has a solicitor acting for them then they will be basing any details from those provided by the respondent. They can only act on the information given based on the questions they ask of the respondent. If there are inaccuracies in this information then it is down to you to prove this either via documentation that forms part of the hearing bundle or within your witness statement.
ULA, thank you for the information, it's incredibly useful. As for the mistakes I'm starting to understand how things work a bit better now. So the solicitor asks their client for for the information, and is relying on them to provide the answers as truthfully as possible in order for them to respond accurately. I though the solicitor would be given all the information to sift through and form a response (which makes no sense now I think about it, as that would be an awfully hard task). I think I need to remember that the solicitor is not out to get me, they have been employed to do a job which they spent many years learning how to do, and that is to defend their client. They are relying on that client to be truthful when they ask questions.
They did have a bit of a dig at my solicitor though:
"The Respondent contends that given the grounds of complaint were prepared by
solicitors there is no excuse or explanation for these failures and that the Tribunal
has no jurisdiction to hear these complaints as a result. The Respondent seeks a
substantive preliminary hearing to determine these issues and asks that the case
management preliminary hearing is converted to such a substantive preliminary
hearing or that it is adjourned to allow a half day substantive preliminary hearing to
take place on these matters."
This request was refused by the ET judge.
But where do I stand on the privacy at work issues? My wife's special category data which is incredibly personal and distressing, my own health data discussed and diagnosed and reported incorrectly by my colleagues and manager, misinformation spread about my relationship with my wife. Can colleagues do this during an investigation? And should an employer stepped in to stop it?
You have it exactly a solicitor is the representative of their client and will act in their best interests, it is not personal to you they are doing a job and in doing that they can only base their responses on the information verbal or documented they are provided by their client.
In terms of what you set out about the dig at your solicitor remember they are arguing points of law and can endlessly debate a point, good lawyers can argue a cat is a dog and vice versa that is what they are trained to do.
Was the information you are referring to mentioned as part of the interviewing of these colleagues during the investigation process?
Yes, during their interviews into the information I disclosed. They use my private life (or to be more accurate, make things up about my private life) to discredit me. They then raise counter grievances which to company investigates after the whistleblowing disclosure is turned into an informal grievance with a formal process (they gave me the option to appeal, so I did. Then they told me they couldn't find my appeal email, which was returned to me in a Subject access request later) ACAS were very confused by this when I asked for, advice at the time.
Did you provide information to the company that would be special category data about your wife as part of any investigation meeting and if so why?
If not how was this information obtained and what part did it play in any disciplinary action being taken against you?
The issue of the appeal email being returned via the SAR when they initially said they could not find it will be dealt with as evidence in the hearing bundle and can also form part of your witness statement. However, the respondent will more than likely argue was a genuine error/oversight.
Did this lead to an appeal hearing not taking place?
If not did you chase this up as to why you had not heard anything?
First point, no I did not provide any information during the investigation that related to special category data that belonging to my wife.
Second point, the information was obtained by my direct reporting manager, it's then passed on to one of my subordinates who later uses the information several times as a way of explaining why they drop a grievance against me in October '22 and then raise it again in January '23. There is absolutely no way that that person could have had knowledge of the data, without my manager passing it on. My wife's subject access request also shows sent the data to his own personal email address and his wife's.
Third point, the appeal did not take place. Whilst I was asking questions about the appeal, a regional manager contacted me and informed me that the person my appeal point related to (my manager) had been invited to a disaplinary hearing against themselves, and subsequently resigned shortly after. I believe they were offered a settlement as I was, but they decided to take it unlike myself.
I have a case management hearing on Wednesday and my agenda for case management hasn't been sent to the Tribunal. Is this something I need to get sorted ASAP?
Also, whilst going over the evidence and information I have earlier (over 500 pages of it) I've noticed that the area manager, who was to be the appeals manager has lied to me and I'm wondering if it's significant. On the 27/01/2023 he sends an email in response to an email I sent to the HR department complaining of victimisation and raising a formal grievance about it. In it he states that he hasn't seen any of the information from the investigations that have taken place since my original complaint submitted 11/11/2022 as he was the appeals manager. Now on the 5th December 2023 I received a 113 page investigation bundle which holds all of the investigation material gathered, all 5 store members interviews, and all of the material evidence collected. The investigating manager sent it to 2 email addresses, HR, and the appeals manager on 26/01/2023. This shows that he received everything from the investigation the day before he sent me an email stating that he hadn't seen anything.
Is this a fair way to conduct an investigation? And is it something I need to use as evidence that the process was unfair?
Your case management agenda should be sent to the Tribunal and the respondent at least 2 days before the hearing so yes you need to get it completed asap.
These documents will form part of the final hearing bundle and you can make reference to the facts of the appeal manager's inconsistency in what he emailed to you and the information he actually had seen, as part of your witness statement.
I was really worried about my agenda only being sent 2 days before the case management hearing. And then I received my former employer's agenda (sent by solicitor) with less than 24 hours until the hearing. I feel a little better about the situation now.
Good luck for tomorrow
Today went well, the judge was extremely fair in both what he asked for and the recommendations he put to me. I now have until 21st February to provide further information on:
What the act that amounted to a whistleblowing/health and safety disclosure is, what the detrement is, and a causal link.
Provide further details of the disability including how it amounts to a disability, what the detrement/discrimination is and show a causal link.
I'm hoping to speak to a NWNF law firm in the next couple of day to pick this up for me, and the judge thought that was a good idea. If it doesn't pan out with them, I guess I'll be extremely busy.
If it does not work out with the law firm you are going to speak with and you then need further assistance then you can always come back to this thread.
Good luck.
Thank you.
The law firm has yet to speak to me as their customer relations manager is away from the business due to sick leave. So I need to be prepared for the possibility that I may have to represent myself. The ET Judge did everything they could to tell me (without actually saying it) that I need to amend my claim. How would I go about doing that?
You will need to make an application to the Tribunal, which you will need to state is in accordance with rule 29 of the Employment Tribunals Rules of Procedure 2013, allowing for a party to amend their claim. You will then need to:
1. Set out your reasons for making the amendments
2. State what the amendment are.
3. Set out the effect the amendment will have on the proceedings.
Given that you feel you were given the indication to do this from the judge you many want to add that an order in the terms requested would assist the tribunal in dealing with the proceedings efficiently and fairly and in accordance with the overriding objective for the following reasons xxxxxxxxx and set these reasons out.
Make sure you confirm that you have complied with rules 30(2) and 92 of the ET Rules by providing a copy of the correspondence to the respondent (you can copy them into the email to the Tribunal) and that you have advised them that any objection to your application must be sent to the tribunal office as soon as possible and copied to ourselves
ULA Thank you for your advice. It is very much appreciated.
Hello all, just looking for a bit of advice. I have a preliminary ET hearing on 25th on July to discuss the disability discrimination part of my claim, and my solicitor has has said there is no need for me to attend the video call for this but I can if I want to. I'm in two minds whether to or not as my anxiety issues have already started to flare up again but at the same time I don't want to seem disrespectful to the court. So I'm wondering if anyone has any thoughts on the pros and cons of attending/not attending?
Hi Retromaus
I was very anxious about mine earlier this year. Part of my claim is disability discrimination and all of the events leading to my claim had a severely detrimental effect on my mental health/trauma. I am also luckily being represented, so was in two minds about going. I went in the end, could keep my mic and camera off and didn't even speak, my rep did all the talking for me. The respondent's rep was the only one there for their side and was OK after I had spent all my time catastrophising about them. The judge was good, helpful and very thorough talking through the points of the claim. The administrator for the tribunal checked in with me before it started and OK'd me asking for a brief break if needed. The case management orders plus record of hearing came the next day. I'm glad I went in the end, gave me a flavour of how it all works, but pleased that I could be there without my camera on. I would have probably been left wondering about it if I didn't go.
After months of delays on the preliminary hear it finally took place on 25th July. My solicitor represented and I did not attend due to stress. My claim has now been accepted as follow:
a. Unfair Dismissal;
b. Wrongful Dismissal;
c. Discrimination Arising from a Disability;
d. Victimisation;
So now my next step is to produce evidence of my long term health condition and how it effects my day to day activities, and this must be completed by 23rd August. This file will include:
a. Patient records from my doctors
b. Sick notes produced to my former employer
c. Occupational health assessment that was requested by my former employer
I am also considering including an impact statement from my counsellor which will describe how my work place stressors effected my mental health during my employment.
I just wanted to give an update on this, so if anyone was in a similar position and wanted to read how things may pan out, they'd have some sort of idea of what to expect. The one thing that has struck me through the whole process is how much a respondent will twist and misrepresent the truth during the proceedings. In a criminal case the level of purjury would be staggering from their side from my view, and I just can't see how they expect to get away with it.
But I suppose there's a huge difference between criminal and employment law.
Retromau5 thank you for the update on how your preliminary hearing went.
I appreciate you have a solicitor who will be advising on documents to prepare but I would certainly suggest that an impact statement is a very useful document to include.
Hi all.
I've been looking at my own ET claim recently and noticed something I'd not heard of before. It's written as "Polkey and contributory fault are likely to be an issue" and after a bit of research I believe I have a decent understanding of how this can effect the level of compensation awarded as the respondent claims that regardless of how unfair the treatment was towards the claimant, if the process had been fair they still would have been summarily dismissed. But am I right in thinking that this does not apply to wrongful dismissal as that it relies on a breach of employment contract rather than statutory rights? I'm asking this as my claim is for both unfair and wrongful dismissal and the respondents representative seem to want us to lean heavily on the unfair aspects of the claim. My solicitor is clearly very knowledgeable at his job I would just like to add, but as they represent on a no win no fee basis, the impression I get from them is that they are looking to settle as soon as possible rather than go the distance with this.
I know my former employer very well, and they have absolutely no desire to settle this with me at all. I was just wondering if anyone had any knowledge that might help in yhe future as I feel I'm going to end up in a court room on my own at some point (my solicitor has already stressed that they do not represent in court).
Thank for reading.
Have you also made a wrongful dismissal claim in the Employment Tribunal? If so, is your former employer saying it was entitled to dismiss you summarily, i.e. without notice?
Yes, the discription in the case summary is:
Wrongful Dismissal
31. The respondent contends it was entitled to dismiss the claimant summarily
If that defence succeeds, there will be nothing to which a Polkey type deduction can be applied. So they are focusing on the unfair dismissal (was it procedurally unfair?) to argue for a significant or total reduction of any award.
Thank you, that gives me a better understanding of what is happening. The claims I have against my former employer are:
Claims Advanced
25. The only claims no advanced are:
1 unfair dismissal;
2 wrongful dismissal;
3 s. 15 EqA unfavourable treatment;
4 s.27 EqA victimisation
I feel my argument for this needs to be:
1 The reason for dismissal did not amount to gross misconduct (l have a direct comparitor as proof for this),
2 The respondent acted unlawfully on several occasions during the grievance proceedings (failure to recognise whistleblowing/health & safety disclosure, unlawful use of special category data relating to a close family member within the investigation, and failure to respond to a SAR).
3 I was discriminated against and subsequently victimised before the grievance process started and during.
4 the respondent failed to adhere to the code of conduct and acknowledge this when complaint were made
5 the respondent failed to follow the grievance policy when complaint were made by myself
During a very complex whistleblowing to grievance to disciplinary to dismissal I've gone through, I've had my private life absolutely trashed by the people involved to the point that the ICO decided that the use of special category data belonging to my wife (who has never worked for the company) during the process was unlawful. Is it possible for the investigation to still be considered 'fair' given this?
I think we will need some more information to assist you.
I presume the investigation was part of the process prior to the disciplinary meeting and action being taken.
How is your ET claim progressing as a follow in to your below linked thread.
Whistleblowing not recognised by former employer - LegalBeagles Forum
I have a preliminary hearing on the 18th jan. My claim is as follows:
1. The Claimant brings claims against the Respondent as follows:-
a) Unfair Dismissal
b) Wrongful Dismissal/Notice
c) Automatic Unfair Dismissal in relation to public interest disclosure and/or health and safety
d) Unlawful Detriment
e) Discrimination on ground of disability pursuant to Sections 15, 21/22 and 27 of the Equality Act 2010
This was submitted by a solicitor, but I have since had to stop using their services as I cannot afford them. The grounds of resistance are pretty much denying everything, as expected, and demanding that the ET throw out the claim on grounds of it not having jurisdiction. Their resistance to this being:
"His claim to have been automatically unfairly dismissed for raising aprotected disclosure when he has not identified what acts he alleges
amounted to him making a protected disclosure within the meaning of s.43A
of the Employment Rights Act 1996 ("the Act");
3.3 His complaint that he was automatically unfairly dismissed in relation to
health and safety when he has not identified any basis on which he alleges
he had satisfied the required conditions under s.100 of the Act;
They then concede that health and safety concerns were given with:
"The Respondent's HR department received the Claimant's Initial Email on 14 November, following which ******* sought to arrange a call with the Claimant to discuss his email further.
Ahead of this, however, the Claimant then confirmed the 'at work' issues he was
seeking to pursue in an additional email dated 23 November 2022 (together referred
to as "the Complaint"). It is accepted that additional email did refer to health and
safety points for the Respondent to consider."
I've tried everything I can to get help with this but there just doesn't seem to be anyone who can.
Something else that has been bothering about the grounds of resistance is that it is littered with what is either inaccurate or completely untrue 'facts' which I find hard to believe a solicitor could make that many mistakes without realising. Is this something I should raise in the preliminary hearing?
In terms of a preliminary hearing just so you know what to expect, this hearing allows a Judge to begin to give the case some structure and to familiarise themselves with what the case is all about; its value (i.e. how much money you are asking for in compensation or settlement), and the complexity of the issues involved. The Judge also has the power to dismiss (“strike out”) parts of the claim and to limit what claims are heard at the full hearing.
Both you and the Respondent will have to agree the steps that will need to be taken to take the case to a final hearing. That means you will need to provide information about how many witnesses you might want to call to give evidence at the final hearing, as well as how and when you will send each other documents and witness statements that will form part of the final hearing ‘bundle’. The Judge will also want to agree how long, and on what date, the hearing will take place. All that information will form part of an agreed timetable between you, the Respondent and the Judge that you must stick to as closely as possible.
It is also an opportunity to tell the Judge and the other side about any changes you want to make to the claim which you submitted. You should remember that the Judge hearing the preliminary hearing is not the Judge who will hear the final hearing and that can sometimes be quite helpful, especially if you don’t have solicitors representing you. So, it is important to be as prepared as you can and to help with this, in most circumstances, the Tribunal will send to you and the Respondent a Case Management Agenda for you each to complete prior to the preliminary hearing. This is in effect a questionnaire designed to ensure that the Judge knows what the issues are going to be.
I am not sure what you mean about "a solicitor could make that many mistakes without realising." If the respondent has a solicitor acting for them then they will be basing any details from those provided by the respondent. They can only act on the information given based on the questions they ask of the respondent. If there are inaccuracies in this information then it is down to you to prove this either via documentation that forms part of the hearing bundle or within your witness statement.
ULA, thank you for the information, it's incredibly useful. As for the mistakes I'm starting to understand how things work a bit better now. So the solicitor asks their client for for the information, and is relying on them to provide the answers as truthfully as possible in order for them to respond accurately. I though the solicitor would be given all the information to sift through and form a response (which makes no sense now I think about it, as that would be an awfully hard task). I think I need to remember that the solicitor is not out to get me, they have been employed to do a job which they spent many years learning how to do, and that is to defend their client. They are relying on that client to be truthful when they ask questions.
They did have a bit of a dig at my solicitor though:
"The Respondent contends that given the grounds of complaint were prepared by
solicitors there is no excuse or explanation for these failures and that the Tribunal
has no jurisdiction to hear these complaints as a result. The Respondent seeks a
substantive preliminary hearing to determine these issues and asks that the case
management preliminary hearing is converted to such a substantive preliminary
hearing or that it is adjourned to allow a half day substantive preliminary hearing to
take place on these matters."
This request was refused by the ET judge.
But where do I stand on the privacy at work issues? My wife's special category data which is incredibly personal and distressing, my own health data discussed and diagnosed and reported incorrectly by my colleagues and manager, misinformation spread about my relationship with my wife. Can colleagues do this during an investigation? And should an employer stepped in to stop it?
You have it exactly a solicitor is the representative of their client and will act in their best interests, it is not personal to you they are doing a job and in doing that they can only base their responses on the information verbal or documented they are provided by their client.
In terms of what you set out about the dig at your solicitor remember they are arguing points of law and can endlessly debate a point, good lawyers can argue a cat is a dog and vice versa that is what they are trained to do.
Was the information you are referring to mentioned as part of the interviewing of these colleagues during the investigation process?
Yes, during their interviews into the information I disclosed. They use my private life (or to be more accurate, make things up about my private life) to discredit me. They then raise counter grievances which to company investigates after the whistleblowing disclosure is turned into an informal grievance with a formal process (they gave me the option to appeal, so I did. Then they told me they couldn't find my appeal email, which was returned to me in a Subject access request later) ACAS were very confused by this when I asked for, advice at the time.
Did you provide information to the company that would be special category data about your wife as part of any investigation meeting and if so why?
If not how was this information obtained and what part did it play in any disciplinary action being taken against you?
The issue of the appeal email being returned via the SAR when they initially said they could not find it will be dealt with as evidence in the hearing bundle and can also form part of your witness statement. However, the respondent will more than likely argue was a genuine error/oversight.
Did this lead to an appeal hearing not taking place?
If not did you chase this up as to why you had not heard anything?
First point, no I did not provide any information during the investigation that related to special category data that belonging to my wife.
Second point, the information was obtained by my direct reporting manager, it's then passed on to one of my subordinates who later uses the information several times as a way of explaining why they drop a grievance against me in October '22 and then raise it again in January '23. There is absolutely no way that that person could have had knowledge of the data, without my manager passing it on. My wife's subject access request also shows sent the data to his own personal email address and his wife's.
Third point, the appeal did not take place. Whilst I was asking questions about the appeal, a regional manager contacted me and informed me that the person my appeal point related to (my manager) had been invited to a disaplinary hearing against themselves, and subsequently resigned shortly after. I believe they were offered a settlement as I was, but they decided to take it unlike myself.
I have a case management hearing on Wednesday and my agenda for case management hasn't been sent to the Tribunal. Is this something I need to get sorted ASAP?
Also, whilst going over the evidence and information I have earlier (over 500 pages of it) I've noticed that the area manager, who was to be the appeals manager has lied to me and I'm wondering if it's significant. On the 27/01/2023 he sends an email in response to an email I sent to the HR department complaining of victimisation and raising a formal grievance about it. In it he states that he hasn't seen any of the information from the investigations that have taken place since my original complaint submitted 11/11/2022 as he was the appeals manager. Now on the 5th December 2023 I received a 113 page investigation bundle which holds all of the investigation material gathered, all 5 store members interviews, and all of the material evidence collected. The investigating manager sent it to 2 email addresses, HR, and the appeals manager on 26/01/2023. This shows that he received everything from the investigation the day before he sent me an email stating that he hadn't seen anything.
Is this a fair way to conduct an investigation? And is it something I need to use as evidence that the process was unfair?
Your case management agenda should be sent to the Tribunal and the respondent at least 2 days before the hearing so yes you need to get it completed asap.
These documents will form part of the final hearing bundle and you can make reference to the facts of the appeal manager's inconsistency in what he emailed to you and the information he actually had seen, as part of your witness statement.
I was really worried about my agenda only being sent 2 days before the case management hearing. And then I received my former employer's agenda (sent by solicitor) with less than 24 hours until the hearing. I feel a little better about the situation now.
Good luck for tomorrow
Today went well, the judge was extremely fair in both what he asked for and the recommendations he put to me. I now have until 21st February to provide further information on:
What the act that amounted to a whistleblowing/health and safety disclosure is, what the detrement is, and a causal link.
Provide further details of the disability including how it amounts to a disability, what the detrement/discrimination is and show a causal link.
I'm hoping to speak to a NWNF law firm in the next couple of day to pick this up for me, and the judge thought that was a good idea. If it doesn't pan out with them, I guess I'll be extremely busy.
If it does not work out with the law firm you are going to speak with and you then need further assistance then you can always come back to this thread.
Good luck.
Thank you.
The law firm has yet to speak to me as their customer relations manager is away from the business due to sick leave. So I need to be prepared for the possibility that I may have to represent myself. The ET Judge did everything they could to tell me (without actually saying it) that I need to amend my claim. How would I go about doing that?
You will need to make an application to the Tribunal, which you will need to state is in accordance with rule 29 of the Employment Tribunals Rules of Procedure 2013, allowing for a party to amend their claim. You will then need to:
1. Set out your reasons for making the amendments
2. State what the amendment are.
3. Set out the effect the amendment will have on the proceedings.
Given that you feel you were given the indication to do this from the judge you many want to add that an order in the terms requested would assist the tribunal in dealing with the proceedings efficiently and fairly and in accordance with the overriding objective for the following reasons xxxxxxxxx and set these reasons out.
Make sure you confirm that you have complied with rules 30(2) and 92 of the ET Rules by providing a copy of the correspondence to the respondent (you can copy them into the email to the Tribunal) and that you have advised them that any objection to your application must be sent to the tribunal office as soon as possible and copied to ourselves
ULA Thank you for your advice. It is very much appreciated.
Hello all, just looking for a bit of advice. I have a preliminary ET hearing on 25th on July to discuss the disability discrimination part of my claim, and my solicitor has has said there is no need for me to attend the video call for this but I can if I want to. I'm in two minds whether to or not as my anxiety issues have already started to flare up again but at the same time I don't want to seem disrespectful to the court. So I'm wondering if anyone has any thoughts on the pros and cons of attending/not attending?
Hi Retromaus
I was very anxious about mine earlier this year. Part of my claim is disability discrimination and all of the events leading to my claim had a severely detrimental effect on my mental health/trauma. I am also luckily being represented, so was in two minds about going. I went in the end, could keep my mic and camera off and didn't even speak, my rep did all the talking for me. The respondent's rep was the only one there for their side and was OK after I had spent all my time catastrophising about them. The judge was good, helpful and very thorough talking through the points of the claim. The administrator for the tribunal checked in with me before it started and OK'd me asking for a brief break if needed. The case management orders plus record of hearing came the next day. I'm glad I went in the end, gave me a flavour of how it all works, but pleased that I could be there without my camera on. I would have probably been left wondering about it if I didn't go.
After months of delays on the preliminary hear it finally took place on 25th July. My solicitor represented and I did not attend due to stress. My claim has now been accepted as follow:
a. Unfair Dismissal;
b. Wrongful Dismissal;
c. Discrimination Arising from a Disability;
d. Victimisation;
So now my next step is to produce evidence of my long term health condition and how it effects my day to day activities, and this must be completed by 23rd August. This file will include:
a. Patient records from my doctors
b. Sick notes produced to my former employer
c. Occupational health assessment that was requested by my former employer
I am also considering including an impact statement from my counsellor which will describe how my work place stressors effected my mental health during my employment.
I just wanted to give an update on this, so if anyone was in a similar position and wanted to read how things may pan out, they'd have some sort of idea of what to expect. The one thing that has struck me through the whole process is how much a respondent will twist and misrepresent the truth during the proceedings. In a criminal case the level of purjury would be staggering from their side from my view, and I just can't see how they expect to get away with it.
But I suppose there's a huge difference between criminal and employment law.
Retromau5 thank you for the update on how your preliminary hearing went.
I appreciate you have a solicitor who will be advising on documents to prepare but I would certainly suggest that an impact statement is a very useful document to include.
Hi all.
I've been looking at my own ET claim recently and noticed something I'd not heard of before. It's written as "Polkey and contributory fault are likely to be an issue" and after a bit of research I believe I have a decent understanding of how this can effect the level of compensation awarded as the respondent claims that regardless of how unfair the treatment was towards the claimant, if the process had been fair they still would have been summarily dismissed. But am I right in thinking that this does not apply to wrongful dismissal as that it relies on a breach of employment contract rather than statutory rights? I'm asking this as my claim is for both unfair and wrongful dismissal and the respondents representative seem to want us to lean heavily on the unfair aspects of the claim. My solicitor is clearly very knowledgeable at his job I would just like to add, but as they represent on a no win no fee basis, the impression I get from them is that they are looking to settle as soon as possible rather than go the distance with this.
I know my former employer very well, and they have absolutely no desire to settle this with me at all. I was just wondering if anyone had any knowledge that might help in yhe future as I feel I'm going to end up in a court room on my own at some point (my solicitor has already stressed that they do not represent in court).
Thank for reading.
Have you also made a wrongful dismissal claim in the Employment Tribunal? If so, is your former employer saying it was entitled to dismiss you summarily, i.e. without notice?
Yes, the discription in the case summary is:
Wrongful Dismissal
31. The respondent contends it was entitled to dismiss the claimant summarily
If that defence succeeds, there will be nothing to which a Polkey type deduction can be applied. So they are focusing on the unfair dismissal (was it procedurally unfair?) to argue for a significant or total reduction of any award.
Thank you, that gives me a better understanding of what is happening. The claims I have against my former employer are:
Claims Advanced
25. The only claims no advanced are:
1 unfair dismissal;
2 wrongful dismissal;
3 s. 15 EqA unfavourable treatment;
4 s.27 EqA victimisation
I feel my argument for this needs to be:
1 The reason for dismissal did not amount to gross misconduct (l have a direct comparitor as proof for this),
2 The respondent acted unlawfully on several occasions during the grievance proceedings (failure to recognise whistleblowing/health & safety disclosure, unlawful use of special category data relating to a close family member within the investigation, and failure to respond to a SAR).
3 I was discriminated against and subsequently victimised before the grievance process started and during.
4 the respondent failed to adhere to the code of conduct and acknowledge this when complaint were made
5 the respondent failed to follow the grievance policy when complaint were made by myself
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