Discriminatory Dismissal / PCMH experiences

[xhaust]

Hello,

I hope someone can help or at least reassure. I am going through the ET process and currently awaiting my PCMH which is scheduled for December (it was originally for June but due to staffing issues was rescheduled). My case was a floating case on the day. I was hugely anxious about it, and as it was a floating case as the time ticked on i was really struggling to keep myself together.

I guess my first question is for people that have gone through the PCMH? How was the process? How are litigants in person treated? Is there an understanding that we aren't legal professionals?


I believe I have a strong case, from what I understand fits best under S15 EQA.

- I have Epilepsy, well known to my employer and confirmed in their ET3 that I have the condition.
- I was treated unfavourably
- I had a seizure shortly after arriving to work one day after which I was ostracised by colleagues. My license was revoked by the DVLA for 1 year.
- One person in particular shouted at a manager she had issues with my medical condition and would do "whatever it took" to get me dismissed.
- After 1 year I was getting my license back. I was excited as it was my lifeline and critical for work. Colleagues had issue with this as I was seen as a liability.
- 2 allegations came out that I assaulted a colleague. Both of which apparently occurred in public settings, both i denied.

- When my employer investigated, in spite of the incidents being of such that if they occurred no witnesses confirmed the accusers account.
- The manager who had the "whatever it took" to get me dismissed shouted at him contacted the investigator raising his concern of discriminatory motive and possibility of the accuser being coached.

- When I received the GM hearing bundle I saw the manager's statement raising the concern. There was no evidence that my employer investigated this at all in the bundle.
- There wasn't even mention of my disability in any way whatsoever (including for reasonable adjustments, equality impact assessment etc).

- In my formal reply to the allegations I reiterated that I had epilepsy, I had been treated with contempt since the seizure and that a manager raised his concern. I also pointed out the issues regarding the accusers case which undoubtedly put my employer on notice that there may be a discriminatory motive at play.
- I provided messages between the accuser and I that contradicted his account he was uneasy around me, in contrast he was offering my lifts into work.

- When my GM hearing came 8 months later there was still no evidence of investigation into the discrimination risk. The messages between my accuser and I were not in the bundle. The GM panel proceeded to hear the matter regardless.
- During the hearing there was a lot of procedural issues including the omission of a called witness who would have supported my case and was present but didn't get to give evidence. It was found that the person who had the discriminatory motive about me provided a statement during the investigation but it was 'lost'. The GM panel ordered their attendance and only gave evidence under threat of disciplinary action. The evidence she provided gave further indication of a discriminatory motive. The GM panel asked for messages between my accuser and her but they weren't provided and the GM panel never followed up on why.
- Ironically the GM hearing itself actually made the discrimination risk even more apparent.

- The panel found against me on one matter and not found on the second.
- The panel found that the comments made by the person who would do "whatever it took" to get me dismissed were said.
- The panel did not consider how that potential discriminatory motive may have impacted the process at all. Instead they said "no mitigating factors"
- On the incident I was not found it was because a witness confirmed my account.
- On the incident I was found it was in a busy public setting, apparently went on for 10 seconds yet no one saw it happen.
- Whilst I dispute the incident I was found on happened at all, my accuser said what happened 'could have been' an accident, yet the GM panel found it was intentional without any evidence.
- There is no evidence in the GM bundle the discrimination motive or my disability was considered at all. It wasn't even mentioned.

- I wouldn't dispute the legitimate aim, my employer was right to look into the incident however It should have conducted a fair investigation to do so.

- Proportionate means - without investigation the risk of a discriminatory motive potentially tainting the process, a seriously procedurally unfair process (there were other issues) and not considering my disability in any manner at all, it is not mentioned in the GM bundle, or the findings at all!


I could be wrong that this does not seem like a fair process? You have someone that said she'd do whatever it took to get me dismissed because of my epilepsy and the investigator didn't even check. If there was overwhelming evidence confirming the accusers account that's different but no one saw what was alleged in spite of the public settings and on one of the matters the accuser's account was disproven.

My employer was a public body and also had to adhere to it's Public Sector Equality Duty also. I am not covered under the ERA so action would have to be taken under the EQA.

The person who made the discriminatory comments that were found by the GM panel has had no action taken against her.



I'm sorry if this is long, I just wanted to get this down as a bit of a release. Any input would be appreciated.

Kind regards

[xhaust]

Also, one more thing that is causing me anxiety.

In my ET1 I clearly provided the narrative as above that from what I understand falls best under s15 EQA, however when I wrote my ET1 I wasn't aware of this and expressed it as s26 (disciplinary process was the harassing treatment), s39 (discriminatory dismissal by not addressing harassment issue that tainted the process), a6 HRA (failing to investigate discrimination risk resulted in unfair process).

I've been led to believe that if the facts in my ET1 support the claim under a particular section of the EQA that is what matters most (facts over labels). I have also expressed to the respondent that I consider this primarily a s15 claim and in correspondence with the ET I have also expressed this (premature disclosure order application/list of issues) Neither have seemingly raised dispute about the fact I didn't exclusively cite s15 in my ET1.

I understand that at the PCMH is when this point should be resolved but wanted to know if I should be doing anything now to ensure my case is considered under the correct legal framework.

[ULA]

Firstly let us deal with what a case management hearing is, which is a preliminary hearing designed to get issues sorted in advance of the final hearing. This includes:

1. Clarifying the issues i.e. what are the legal claims being made and therefore what is the respondent defending against.
2. Timetabling i.e. setting key dates for document exchange, submitting witness statements, how many witnesses there may be from each side etc.
3. There may be Case Management Orders (CMO) that may be provided as a result of this hearing, detailing what each party must do and by when.
4. The hearing may consider any applications whereby, if either side wants to amend their respective claim or response, or raise any procedural issues this is the hearing to do it at.
5.The Judge may also ask whether the parties have considered further ways to resolve the dispute and come to some settlement.

The case management hearing, you need to be aware, is far different from the final hearing as the aim is to ensure both sides know what is expected, the claim and response is clarified and the judge provides a timetable for the case to proceed to the final hearing.

Yes you are a litigant in person who is not legally trained and you may well be facing a legally represented respondent ,however you have brought the claim. Judges will often explain legal procedures and concepts in a way that is easier for you to understand and they may also help you understand how to present evidence or response to directions. When you have given your evidence the Judge and/or the panel, if there is one at your final hearing, may also ask clarifying questions to ensure you are able to make your case. However the Judge is not there to assist you with your legal arguments, so you need to be clear of your facts and the legal arguments you need to set out to prove your claim/s.

[xhaust]

Hello ULA,

Thanks for the reply it really is helpful!

I just don't want my claim to be railroaded by the respondent because I didn't understand the correct legal labelling at the time I put in my ET1. By the time the PCMH comes around they'll have had 6 months prior knowledge of my s15 framing. I hope that it is actually the right place to put it. My issue is more centred around the employers inaction to investigate and consider the discriminatory motive that may be tainting the process. They just ignored the risk as opposed to engage with it properly at all.

I think my anxiety is around a matter that I understand would be more likely 'relabelling' as the facts and narrative don't change only what section my claim should be considered under. I'm not looking to add additional legal avenues.

Thanks again.

[ULA]

Section 15 of the Equality Act 2010 (EQA) deals with discrimination arising from disability. What you will need to prove is that you were treated unfavourably by your employer because of something related to your disability and that your employer cannot show that treatment was of proportionate means of achieving a legitimate aim.

The focus of section 15 is on the consequences of the disability, the link between these consequences and the treatment you received and for you as the claimant that the treatment was not justified and not a proportionate means of achieving a legitimate aim.