ET preliminary hearing - Litigant in Person and nervous

[SafeSpark]

I have submitted a claim to ET for unfair dismissal and discrimination due to disability. I have no legal representation. I can not afford it and it’s not worth it because almost all my loss of income will be grabbed by Universal Credit anyhow. I am mostly claiming for injury to personal feelings as I have now found a much better job and wouldn’t dream of going back to my previous employer.

I was dismissed from my job as a cleaning supervisor because my employer refused to provide reasonable adjustments as recommended by their OH advisors and my NHS dermatology consultant. I am from USA and was ignorant of disability discrimination and reasonable adjustments. I thought my employer had been really reasonable until I accidentally mentioned how my employer dealt with my disability to a colleague’s trade union Safety Rep — when I was helping an Italian friend out with his work complaint (I’m an Italian American). I was naive and fortunately got an ET submitted for unfair dismissal and omission to make reasonable adjustments.

Anyway, I have a preliminary hearing in February 2025 and the employer’s solicitor has asked the judge to change the scheduled case management preliminary hearing into an “open substantive preliminary hearing to determine the issue of whether the Claimant is disabled - at the conclusion of this hearing, case management orders can also be made.”

As I want to get this matter dealt with as quickly as possible, should I agree or challenge this request? If my case is weak I’d prefer to end it quickly and get on with my life. Also, if this open PH focuses on the substantive question of my disability will that mean the Respondent waives their right and costs of independent medical experts at a later date to interrogate the medical evidence again after this substantive open PH?

If I agree to changing to an open substantive preliminary hearing, will this be in the public record?

Also, what documents/evidence will I need to submit to this open substantive PH if it goes ahead? Is it everything or just medical evidence?

Also, can I ask for the case management orders to be made at a separate hearing after this open hearing if I satisfactorily prove that I am disabled for the purposes of the Equality Act. I’m guessing this substantive question will be a make or break for my case.

[ULA]

From.what you have said the respondent is disputing you have a disability as defined by the Equality Act (EqA) and have therefore requested that the Preliminary Hearing (PHR) deals with this matter.

From your perspective was the respondent aware, or could have been reasonably expected to know, that you have a disability as defined by the EqA?

It is highly likely that case management orders (CMO) will be determined from the PHR.

In general, preliminary hearings fall into two categories:

* those dealing with case management issues, and
* those dealing with preliminary issues.whuch is defined as "any substantive issue which may determine liability"which determining disability would be such an issue. Preliminary hearings dealing with issues of this type should be heard in public, conversely, case management preliminary hearings must be closed and private.Where a hearing involves both types of issues, the substantive issues will be addressed in public, but it is at the discretion of the judge whether the determination of the case management issues will take place on the same occasion and in public, or whether that part of the hearing is held in private.

Just to let you know with the backlog in the Tribunal system if your claim does go to a final hearing it may be another year for a date

[SafeSpark]

Thanks for your helpful response and questions.




“The Respondent avers that dermatitis is a skin condition that can be considered to be hereditary in most cases – as such, the Respondent avers that it is entirely possible that the had this condition for a considerable period of his lifetime but that it had not flared up, nor did it have a substantial or adverse effect on his ability to carry out day-to-day activities bar for the short period (as noted by the Claimant)”




The short period was for approximately 9 months which included bodily disfigurement and open bleeding lesions which required stitches.




My employer was fully aware of my skin condition and dismissed me for incapacity 12 months after I first observed the skin condition. I was dismissed due to incapacity because my employer could not agree to find me work which avoided skin contact with cleaning detergents.




If my Respondent’s solicitors feel this is the strongest argument they can muster, then I would like the PH to be public as this will hopefully push them to make a settlement before the final hearing (scheduled summer 2026)




Can I ask for the case management to be postponed to another PH as I feel confident that I can win this substantive question

[SafeSpark]

When do I have to name witnesses I plan to call? At the CMO or later?

When do I have to ask for document discloure from Respondent?

[ULA]

You are disabled under the Equality Act 2010 if you have a physical or mental impairment that has a "substantial" and ‘"long-term" negative effect on your ability to do normal daily activities.

- "substantial" is more than minor or trivial, e.g. it takes much longer than it usually would to complete a daily task like getting dressed
- "long-term" means 12 months or more

So you will be required to prove that your skin condition meets that criteria to be able to pursue a claim for disability discrimination.

At the initial stages all you will be required to do is state the number of witnesses you are going to call. It may not be until witness statements are exchanged that the other side knows who is being called.

The CMO will set out a detailed timetable in respect of dates for - exchanging documents, agreeing the bundle, exchange of the bundle, exchange of witness statements and when the bundle and statements have to be sent to the ET.

[SafeSpark]

I have just been informed by a colleague who is helping with my case that my final employment contract extended my contractual notice to three months from one month. I was only paid one month notice in lieu when I dismissed due to incapacity. I was never given the contract when I was promoted and this was in the documents disclosed in the SAR a year after I was dismissed.

I did not put breach of contract in my originial ET1 so how do I ask the Tribunal to add it to my discrimination/unfair dismissal case against my employer?

[ULA]

So this was a contract which increased your notice period on promotion that you did not receive? You say it increased the notice period from one month to three months, was this increased obligation on you, your ex-employer or both of you?

If the document was disclosed in the SAR, then I presume you had sight of this as the time you received the documents, how long after was this from your submission of your ET1? In other words you should have know about this at the time you received the SAR documents and reviewed them not having "... just been informed by a colleague who is helping with my case...."

I say this because a time delay in trying to apply to have breach of contract added to your claim, from when you could have reasonably known of this, may be an issue.

[SafeSpark]

Hi,

I had my PH last week and the Judge asked me to explain the issues. Unfortunately, I did not understand this meant the types of discrimination due to disability. I have spent last few days trying to get my head around the question as the judge wants me to write a clear explanation of the types of discrimination I am claiming.

I was confused during the PH because I had assumed that failure to make reasonable adjustments was classed as direct discrimination. I wish to include direct discrimination based on all three criteria, ie that I am disabled, that I was discriminated against by association and also that I was discriminated by perception. I understand that I have to show how I suffered unequal treatment by my employer, but I don’t fully understand how this includes (or excludes) discrimination arising from disability and failure to make reasonable adjustments. I am guessing that if I rely only on on “arising from” and “failure to make RAs” then I must prove I am disabled. I don’t want to put all my eggs in one basket.

So my question is: I want to make sure that direct discrimination by association and perception are considered in the final hearing in case the Tribunal decides that my medical condition is not a disability under the Equality Act. I know that this will require me to get evidence that shows how my treatment was different to non-disabled colleague. What I want to know, would it be considered significant evidence to show that a manager disregarded the direct instruction of HR agree reasonable adjustments and a phased return to work as would be normal in my circumstances?

Thanks for your help.

[ULA]

Under the Equality Act 2010 (EqA) if you have a disability you are protected against the following types of discrimination:

1. Direct discrimination
2. Indirect discrimination
3. Discrimination arising from a disability
4. Harassment
5. Victimisation
6. Failure to make reasonable adjustments

An individual may only experience discrimination in one of the above ways or there may be multiple types o discrimination. Your claim has to clearly set out which types of discrimination applies and you need to show how this act of discrimination was applied to you.

It seems from what you have said the Judge is giving you a chance (as this should have all be set out in your ET1 and Particulars of Claim) to details the type/s of discrimination you believe you have a claim for.

Overarching all of this is that you need to prove that your medical condition is such that is meets the criteria under the EqA as a disability because without doing that any claim/s for discrimination will fall away.

In answer to your question "would it be considered significant evidence to show that a manager disregarded the direct instruction of HR agree reasonable adjustments and a phased return to work as would be normal in my circumstances?" You would need to prove:

1. That the adjustments were reasonable given all the relevant circumstances.
2. That there was no genuine reason with regard to the adjustment being "unreasonable" for the manager not complying as requested by HR.

[SafeSpark]

Quick question. Hopefully this is not too complex.

I need to name a comparator to prove that I was treated unfavourably. Unfortunately the only individual who was employed in the same job role as me is the son of my manager. If I name him as a comparator he will try to protect his mother. I will aks for him to be summoned as he is unlikely to agree to voluntarily attend the hearing against his mother. The important points that I need to discuss at the final hearing will need to be teased out by cross-examination. Am I allowed to cross-examine my named comparator?

[SafeSpark]

When do I have to name witnesses I plan to call? At the CMO or later?

When do I have to ask for document discloure from Respondent?

Can you help with the second question about requesting documents for disclosure by respondent. Respondent’s legal rep has finally shared their document bundle. There’s a lot missing so is there a cut off date for requesting documents as I can see this process will likely take a long time to be fully agreed.

[ULA]

Answer to post #10

You do not need to provide the name of a comparator. You can just describe their role or job title instead. Comparators can either be real individuals or hypothetical ones, depending on the circumstances of the case. What you need to do though is demonstrate that the comparator is in a similar situation but does not share the same protected characteristic, in this case disability, as you.

Is this person (the manager's son) going to be a witness for the respondent? If so then you will have the opportunity to cross examine them.

Answer to post #11

You will need to refer to the Case Management Orders (CMO). The bundle needs to be finalised in time for witnesses to be able to prepare their witness statements as they are likely to reference documents in the bundle and the page reference number needs to be put into the witness statement. Under CMO, bundles are timed for being finalised several weeks prior to the exchange of the witness statements between the parties. That being said there is an ongoing obligation for disclosure and I have known of documents being disclosed up to and even at the hearing with the permission of the tribunal judge in the latter instances.

[SafeSpark]

If I name real comparators, what information about their employment can I ask the employer to disclose?

Can the employer cite gdpr to refuse to disclose basic details like occ health outcomes and reasonable adjustments?

[SafeSpark]

Regarding potentially hostile comparator (manager’s son), they have not been called by my employer as a witness. I don’t need to either as my evidence of discrimination is based primarily on the documented management of sickness absence and medical capability. I want to show that this comparator with same job title and less experience was employed while I was absent to carry out a role that would have been perfectly reasonable for me to do to meet the criterion of a reasonable adjustment.

[ULA]

Post #13 Response

I have set out in my post #12 that if using a real person comparator then all you need to describe is the job that they do or job title. If you are trying to show you suffered direct discrimination, you need to compare your treatment with the treatment of someone else who does not have the same protected characteristic as you i.e. a disability. This does not require you to ask the employer any information about the comparator.

I am unsure as to what you mean by "Can the employer cite gdpr to refuse to disclose basic details like occ health outcomes and reasonable adjustments?"
Please set your question out more clearly.


Post #14 Response

If the person is not to be a witness for either you or the respondent then they will not be part of the hearing.

If he comparator was employed whilst you were absent were you unable to work because your GP has deemed you unfit to work?