Employment Tribunal - work related stress

[Applegarthmusical]

I am hoping someone can help. My brother resigned from a job due to work related stress which was completely ignored by his employers and direct discrimination from his manager against his education! (did not have a university degree etc). He has been receiving counselling and has gone through a grievance procedure with his employers which has taken over six months as it was dealt with four different members of HR with them dimissing his allegations and have ignored any requests for information which would provide proof to his allegations. It is quite clear that they have not followed procedures and were trying to delay coming back to my brother to miss the employment tribunial submission date. They have confirmed that insensitive remarks were made by his manager and two Dr's have confirmed work related stress now and more importantly before resignation which were ignored. Stress was advised in May 2012 and ignored and my brother resigned in July 2012 as he couldn't cope anymore and if he didn't resign he would have had a breakdown. The tribunal have accepted the case and to be honest I am at a loss of what needs to be done. This is a large corporate company so we probably don't stand a chance but its something my brother wants to pursue. Its not about the money its the principal - he worked there for 8 years. My brother is not in a position to cope with this emotionally but lost out quite financially by resigning. The Tribunal advise that we need to set out in writing what remedy my brother is being asked to be rewarded. Can anyone help with this and can anyone advise how we go about getting documentation from his employers who have ignored all requests so far and how we get witness statements form the bullying that occured at work from his manager. Obviuosly employers are going to be reluctant to speak against their manager which is a concern though we do understand that they did advise HR and did confirm the bullying when asked in the grievance procedure but this has been denied by HR! Any advice much appreciated.

[Eloise01]

Re: Employment Tribunal - work related stress

Oh dear. I sincerely hope that his stress is much better, because it is likely to get infinitely worse over the next several months. Although this is a very sketchy outline of what happened and many things are far from clear, he appears to have made some fundamental errors of judgement in what he has done that will definitely not support his tribunal case.

In the first place, I do not know what you mean by the fact that he was discriminated against on the basis of his education - but education is not a protected characteristic and so the employer can discriminate on this basis. Discrimination is not unlawful - only certain types of discrimination are - and this isn't one of them.

Secondly, there does not appear, on the face of this, to have been much time given to trying to resolve this, if, indeed, there was anything in law to resolve. He was advised that he was suffering from alleged situational stress ("work related" is not a diagnosis - it is an opinion and not one that a doctor is qualified to make, since they are basing their opinion solely on third party information which they cannot verify) during May and had resigned within three months. This is something which thetribunal is also not qualified to make a judgement on - such a judgement would have to be on the basis of a claim for personal injury, which is an entirely seperate area of law, and one for which the burden of proof is significantly higher.

What is he claiming is the repudiatory breach which caused his resignation? Because the risk of him having a breakdown is not a repudiatory breach - that may be a medical fact, but it is not an action that the employer has taken. Constructive unfair dismissal can only occur if there is a repudiatory breach by the employer and as an immediate reaction to that breach.

If both you and he are at a loss as to what needs to be done then you are not in a position to garner that knowledge easily from websites - he has chosen the most difficult claim to make of any possible claim. In the best case scenario, his chances of winning are less than 3%. Given what you have described here, where he appears to have no evidence, much lower. And in this claim, it is the only one in which the burden of proof is entirely on him to prove everything throughout the case. The employer need prove nothing at all. That is actually much more likley to be the cause of standing no chance at all, not the size of the employer. Bif employers fall. But not often, because they are usually well protected and ensure that they have evidence of everything. A small employer can be less careful, but that is a choice rather than a consequence solely of size.

In terms of remedy, even if he wanted it, reinstatement is simply not feasible, so the remedy will be a schedule of loss as to his claim for loss of employment. If you google schedule of loss you will find a lot of information out there - at this stage you do not need to tell the tribunal anything other than compensation for loss of employment.

Relevant documentation should be provided by the employer on request, but it may take time. These things do not happen immediately, and it may require an application to the tribunal for a disclosure order. In technical fact, the employer need not release certain documents at all (I can't comment on specifics of this without knowing what he wants and why it is refused); and many documents may not be released until the exchange of bundles of evidence, which is likley to be a long way off. If such documentation existed, he should have ensured he had copies - document disclosure is not an invitation to go fishing for evidence, and it is a poor method of trying to get evidence after the fact. As far as witnesses go, if people refuse to act as witnesses then they can refuse. You can obtain an order for a witness to appear at a tribunal, but I wouldn't strongly recommend it unless you know they will support your case. Oddly, people forced to give evidence against their own employers tend to say what their employers want to hear them say - no matter what they may have seen or heard.

I cannot strongly recommend that you proceed without obtaining some form of legal advice in this matter. And dispense with all notions of justice or principles because that is not what tribunals are about - they are about hard law, and your brother has picked the hardest law to go for.

You can find some information here that goes into a little more detail about constructive unfair dismissal : http://www.redundancyforum.co.uk/fre...ive-dismissal/
and some here about finding a lawyer for advice : http://www.redundancyforum.co.uk/fre...i-need-lawyer/

Two words of caution which you may not like, but which I have to tell you. This may be your brother and he may indeed feel hard done to, and he may even have been hard done to. That does not mean that the employer is not legally correct. Tribunals do not consider a claim based on whether someone has been hard done to. They are not allowed to decide whether they would have acted differently than the employer. They are not allowed to put their judgement in the place of the employer. They can only decide whether the employer has acted lawfully. So the fact that your brother may not agree with the outcome of the grievance does not mean that the employer was wrong in law. Dismissing his allegations is not a repudiatory breach in itself.

Secondly, do not refuse any offer of settlement out of hand if it is made - it may or may not be. Tribunals are (a) risky - and his risk is huge given the claim he is making and (b) do not hand out huge awards as most people think they do - the median average is only around £6-7k if you win. So don't think for one minute that there is a guaranteed payout, or a huge one. People have been known to make very costly mistakes by thinking this way. A settlement is not a win, and it is not an admission of guilt - it is a pay off by the employer to avoid the cost and effort of a tribunal and nothing more. But it is guaranteed money. Notions of justice and having your day in court are vastly over-rated, especially if you lose - and the odds are severely in favour of you losing. Don't let that fact escape from you.