APPEAL

[Bmuzumdar]

HI,
Grateful, for your kind and thoughtful assistance.
I had a recent telephone PH couple of days ago on a remitted claim back to ET for a fresh hearing. It was remitted on respondent’s cross appeal on procedural error. EAT ordered that further evidence can be allowed if ET thinks required. I found that the Judge was biased towards me and his order following the decision did not at all reflect what has gone through in the hearing. The Judge has allowed the other party to amend their defense and dismissed my application to strike out their defense as their original defense was too insufficient. Judge also declined my application to amend issues if they were allowed amendment. Yet, Judge allowed them and declined mine. In the subsequent written order he did not mention he allowed amendment instead he only coined further particularisation by the respondent. although he allowed them to amend their defense.
In course of respondent’s submission they refered to their notes of eviden
can I appeal against this PH/CMD decision/direction on the ground of bias/appearance of bias?
If I am entitled to do so to which Tribunal I should apply to ?
EAT or ET?
In what time period?
Optional Information:
Province/Country relating to question: UK
Already Tried:
I am a self litigant.

[Kati]

Re: APPEAL

[MENTION=19071]teaboy2[/MENTION]?? [MENTION=67649]matt3942[/MENTION]?? any advice here please??

[Bmuzumdar]

Re: APPEAL

Hi
If any one could give a single advice it would be highly appreciated.
thanks in advance..

[matt3942]

Re: APPEAL

Sadly this isn't something I'm familiar with. Perhaps [MENTION=19071]teaboy2[/MENTION] will have some advice.

I am sorry.

- Matt

[teaboy2]

Re: APPEAL

What were the reasons for allowing them to amend their defense, and what reason was given to not allowing you to amend?

It may seem unfair, but it sounds like their defense was insufficient and the amendment was granted to allow a fair process. Their defense may have been insufficient for a number of reasons, and its not unheard of to allow a defendant to amend their defense to claimants claim/allegations - Especially if their was a procedural error in original ET. Whilst it may seem unfair at the moment, the outcome may well still be in your favour and the judge may well have seen no need for you to amend your claim!

So long as the other side followed correct protocol in applying to amend their defense then its normal to allow it, and dismiss in turn any strike out request!

What was the procedural error that led to the claim being remitted to ET? As that may be key to understanding whats actually happened here.

Also, who is PH that you received the telephone call from? Or was it a preliminary hearing held over the phone?

[Bmuzumdar]

Re: APPEAL

What were the reasons for allowing them to amend their defense, and what reason was given to not allowing you to amend?

It may seem unfair, but it sounds like their defense was insufficient and the amendment was granted to allow a fair process. Their defense may have been insufficient for a number of reasons, and its not unheard of to allow a defendant to amend their defense to claimants claim/allegations - Especially if their was a procedural error in original ET. Whilst it may seem unfair at the moment, the outcome may well still be in your favour and the judge may well have seen no need for you to amend your claim!

So long as the other side followed correct protocol in applying to amend their defense then its normal to allow it, and dismiss in turn any strike out request!

What was the procedural error that led to the claim being remitted to ET? As that may be key to understanding whats actually happened here.

Also, who is PH that you received the telephone call from? Or was it a preliminary hearing held over the phone?

Hi Teaboys2

Thank you so much for giving your precious time with a reply.

this really has boost my morale that someone has picked up my post and given a thoughtful advice.

yes, it was a telephone preliminary hearing on the remitted claim. the respondent represented by the counsel and I was on my own.

the claim was remitted back for a rehearing on the ground of procedural error on the part of the Tribunal as respondent contended.

Tribunal gave me unlawful deduction of wage claim against the respondent but counsel said to EAT he was not asked by the tribunal that they are going to address that on statory provision sec13 ERA, it was though not true.

EAT has accepted his argument and also agreed with him that had he been asked by the tribunal for submission he could have well argued and showed to the tribunal that my contract can be interpreted differently with implied terms ie they can demote me temporarily which I refused. So EAT has given direction that if tribunal see reasonable can allow parties to give further evidence..

The fact is the contractual documents and clauses counsel was sighting were not at all in the bundle before the tribunal in the original hearing. Even if he had given an opportunity which he was really given he could not still argue his case. Now, to make things easier for him ET judge has allowed him to add those documents. Further, ET judge declined my application to strike out their defense which was insufficient in the first place for the reasons that as my claim was along the Meikle line only so was respondent did not address in its defense on the contracual and statutory line. in the circumstance that EAT has sent it back they are allowed to give detail particularisation of their defense. After I made objection to any amending by them the Judge articualted it in a differet way. Asked them to particularise their defense so that he understands more cleary about the implied terms of my contract.

At that point when I asked to amend or add a fresh witness statement for liability evidence he declined to allow me that at present. ET Judge was saying that as all facts were found in this case in the original hearing no further evidence or witness statement is allowed at this stage , howver ,

once on seeing the respondent's full particulars if I feel it necessary to add further evidence or witness statement I have to make an application for the same. At that stage tribunal will decide on that though it can be turned down for reasons.

Tribunal also given permission to me to make response to respondents further particulars ie their amended ET3 if i am advised.

I found these as disadvantageous to a self litigant and also in misdirection.

I hope this answers your questions above.

Thank you again for your kind thoughts

B Majumder

[teaboy2]

Re: APPEAL

Right well all you can do is go through with the ET, then if you loose appeal to EAT, and if you loose at EAT you would have to take it to the court of appeal!

Is your claim for unlawful deductions under section 13 ERA only or for other things too?

Also in order to demote you, they would have to provide a variation of terms notice to you for you to sign in agreement. As clearly your wages were being varied and your job title too. And in some cases if their was major reduction of hours, benefits (including wages), status or job growth, it would have given you grounds to resign and claimed constructive dismissal.

Can i ask why you were demoted?

[Bmuzumdar]

Re: APPEAL

Thank you.

No I was not demoted.

As they offered me a demotion I did not aceept it so I got dimissed with a notice of termination. I n my case it was a six months notice as per my contract.

It was this money that they did not give me because for the notice period I did not agree to come work in a lower grade

Prior to notice I was on sick leave for about 8 months during the time I received 6 months full pay and later on half pay, however 2 days prior to notice I served a fitnote to return to my contracted post.

They did not let me join my contracted post on the plea that performance assessment do not permit them to allow me to work in my grade as no remediation took place, although thye did not pursue any competence or disciplinary procedure according to my contract eitehr to dismis or demote.

however, i lost my claim for unfair dismissal, disability discrimination but won the unlawaful deduction of wages as above.

their alleged performance deficiency was nothing but were arising from my disabilty as was diagnosed later, although they were succeeded to pursue the ET and EAT that my performance issue are separate from my disability.

I also appealed to the CoA but appeal was not allowed becasue at the time the information was that performance was in deficiency.

Although, later on my regulatory body given all the clearance and I am back to my original position but with different employer.


now its only the wage claim that is back for rehesaring.

Respondent counsel argues that my contract allows them to ask me to work at different site with different duties even in lower grade temporarily, although the same counsel previously argued in different hearing that I was not demoted nor dismissed at the time when I first made my claim.

No there was no paper that they sent or I signed agreeing a pay cut or down grade..or reduced hours.

His argumnet is on the test of ready willing and able...that I am not able to perform my job so they offered me lower grade which I refused..so they do not need to pay me.

Sorry, I had to write in detail. Hope tha you find reasonable.

Kind regards

B Majumder

[teaboy2]

Re: APPEAL

I think the problem you have here is they gave you notice but refused to work it, therefore not entitled to notice pay full stop, if you had worked and been paid lower rate, then you would have a successful claim. Sorry its not what you wanted to hear.

As for discrimination if you were declared fit to work by your doctor, then you should be allowed to return to you role and duties!

Can give more details to performance assessment, did take in to account your period of sick leave? What was your sick leave for? Feel free to PM me if you prefer to not disclose medical condition on public thread, as this is an important question!

[Bmuzumdar]

APPEAL..Please some one advice me !

HI,Grateful, for your kind and thoughtful assistance.
I had a recent telephone PH couple of days ago on a remitted claim back to ET for a fresh hearing. It was remitted on respondent’s cross appeal on procedural error. EAT ordered that further evidence can be allowed if ET thinks required. I found that the Judge was biased towards me and his order following the decision did not at all reflect what has gone through in the hearing. The Judge has allowed the other party to amend their defense and dismissed my application to strike out their defense as their original defense was too insufficient. Judge also declined my application to amend issues if they were allowed amendment. Yet, Judge allowed them and declined mine. In the subsequent written order he did not mention he allowed amendment instead he only coined further particularisation by the respondent. although he allowed them to amend their defense.
I have already appealed to EAT ' biased ,apparent bias and procedural irregularity,now in the moment my appeal is in the shift stage. I copyed that to ET and requested that untill EAT 's response hold the hearing , but ET just let know the judge not going to hold the hearing , he is one who is going to hear my case !! I am confused that the judge I am not trusting and appeal to upper court ,but he is by force continue the hearing ! can you give me any advice ..any one please..can he do that ? what should i do now ?

[teaboy2]

Re: APPEAL..Please some one advice me !

I assume this is a continuation of this thread of yours here - http://www.legalbeagles.info/forums/...p?67388-APPEAL [MENTION=49370]Kati[/MENTION] please merge.

The advise if still the same, all you can do is see through the ET, then look at appealing if it doesn't go your way. Whatever you do though, do not antagonize the judge as hes the one with the power to either rule in your favour or against you. Judges are impartial, and so is the procedure, so its not biased, even if you might think it is!

[Kati]

Re: APPEAL..Please some one advice me !

I assume this is a continuation of this thread of yours here - http://www.legalbeagles.info/forums/...p?67388-APPEAL [MENTION=49370]Kati[/MENTION] please merge.

The advise if still the same, all you can do is see through the ET, then look at appealing if it doesn't go your way. Whatever you do though, do not antagonize the judge as hes the one with the power to either rule in your favour or against you. Judges are impartial, and so is the procedure, so its not biased, even if you might think it is!

done xx