Exchanging documents before a tribunal

[Openlaw15]

Re: Exchanging documents before a tribunal

Don't worry about whether your exact diagnosis appears on an approved list. Courts stopped using that kind of criteria a long time ago.
Employment Tribunal look at whether you meet the all requirements of s.6(1) of the Equality Act.
http://www.legislation.gov.uk/ukpga/2010/15/section/6

Mariefab...but a Tribunal is not a court.. statute such as EA 2010 applies to the higher court's role to interpret statute. I do not know how a Tribunal has the power to interpret a statute - a tribunal can interpret and apply regulation content as this is secondary legislation. Where is the law that a Tribunal has the power to interpret a statute? This is more likely the senior court's role under the UK's unwritten constitution.

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I'm confident I do meet all of the criteria in the act to be classified as having a disability, as, although my condition is well controlled by the medication I take, and other things I do help myself, such as going to the gym, eating healthily, etc. discounting the effects of my medication, I wouldn't be able to face the world, I wouldn't want to get out of bed in the morning, I would struggle to sleep at night, I'd feel very low, and probably suicidal.

The effect of the disability is measured in absence of its control....ie without medication is x person affected by y disability.

[mariefab]

Re: Exchanging documents before a tribunal

You need to show that your condition would have a substantial adverse effect on your ability to carry out everyday activities if you didn't take your medication.
So, consider and write down what the effects would be, as many examples as possible.
Then look at the letters from the doctors and see if they describe any of this.
Often doctors write about diagnosis rather than effect. If the potential negative effects aren't mentioned you need to fill this void.

[ryanbhoy1984]

Re: Exchanging documents before a tribunal

In the letter from the doctor, he states specifically that during a bad bout of anxiety, it could have an effect that might be considered substantial, or words to that effect. He definitely uses the word substantial.

[mariefab]

Re: Exchanging documents before a tribunal

Openlaw
Tribunal follow established guidance provided by cases in the higher courts to decide whether a person has a disability. There's plenty of it from the EAT, Court of Appeal, House of Lords and Supreme Court.

[Openlaw15]

Re: Exchanging documents before a tribunal

You need to show that your condition would have a substantial adverse effect on your ability to carry out everyday activities if you didn't take your medication.
So, consider and write down what the effects would be, as many examples as possible.
Then look at the letters from the doctors and see if they describe any of this.
Often doctors write about diagnosis rather than effect. If the potential negative effects aren't mentioned you need to fill this void.

A GP is not a qualified medical expert of mental health, he'll like need a consultant psychiatrist. He'll also need to prove his medical condition/ disability, as it affects his mental health, is listed either in those extensive medical professional publications as guide: Morgan v Stafford University. This is what I had said above even before doing the research for the OP.

[ryanbhoy1984]

Re: Exchanging documents before a tribunal

I have a letter from my psychiatrist that says in his opinion, although not a medico-legal expert, I would fall under the description of having a disability.

[Openlaw15]

Re: Exchanging documents before a tribunal

Hi,

A bit of background to begin with -

I am in the process of taking my former employer to a tribunal, as I was unfairly selected for redundancy, due to victimisation from a grievance I had filed 18 months earlier, and also for discrimination that has happened to me in my employment since then. I had Judicial Mediation at the start of the month, at which they offered me Ł15,000 to settle out of court, which I refused. There has been a preliminary hearing arranged for the end of April, to decide whether the case is time barred, and whether I do in fact have a disability.

I have been sent an order for this preliminary hearing, which says that I have to give the Respondent copies of the documents I will rely on for the hearing. Obviously I have a lot of letters and things like that from my Doctor, Psychiatrist etc. that I will have to supply to them, but my query here is if I have stuff that I have sourced from the internet, quotes from documents, and standard practices and things like that, do I have to supply this to them as well? I feel like this will give them an unfair advantage, in that they will be able to see where I am going with my argument. If I am only going to be reading these quotes or sections from documents in the hearing, will I have to give them a copy beforehand? Am I allowed to use any documents that I have not given to the Respondent?

Thanks for reading,

Ryan

Putting the law and the discrimination to the side, you know what 15k was not a bad offer to make it all go away. You could be burdened with costs now if it goes against you. As you say your company has a very good lawyer. I will hazard a guess and say the first case he or she'll quote will be the case I cited above. Is the 15k still on the table to take, if so you'd do well to consider it.

[ryanbhoy1984]

Re: Exchanging documents before a tribunal

Removed this post for reasons of not wanting it on a public forum any longer

[mariefab]

Re: Exchanging documents before a tribunal

You need to be more specific.
For example,
-if a symptom of your condition is that you would be likely to suffer periodic bad bouts of anxiety
-and that anxiety would have the effect that you would find it difficult to do an everyday thing like leave your house
-this demonstrates that your disabilty has a substantial adverse effect on your ability to carry out normal day-to-day activities

[ryanbhoy1984]

Re: Exchanging documents before a tribunal

I think I'll be ok with that. All I have to do is be honest, I haven't lied or even stretched the truth throughout this whole saga, whereas they have repeatedly lied and fabricated facts to suit their agenda.

[Openlaw15]

Re: Exchanging documents before a tribunal

In the letter from the doctor, he states specifically that during a bad bout of anxiety, it could have an effect that might be considered substantial, or words to that effect. He definitely uses the word substantial.

Playing devil's advocate. Hmm, 'might' be considered substantial, is your doctor's medical view. So, equally it might not be considered substantial, to amount to a disability. Look at the words properly - might, may, could, potentially are all non concrete terms.

[mariefab]

Re: Exchanging documents before a tribunal

If there were other employees at risk of redundancy who had the same or very similar role to yours and they were not made redundant; then given these facts...
You were promoted 3 months earlier and received a letter at the time congratulating you on a "well earned promotion".
The Company's documented Appraisal Policy states that it is an objective appraisal of an employee's performance.
Your appraisal on (date) confirmed that you were meeting or exceeding every job requirement but attendance.
The criteria on the appraisal and the criteria on the redundancy scoring matrix are very similar, a number of them sharing the exact same heading. Attendance was weighted very low in the redundancy matrix.
You scored the lowest in the company, by quite some margin, in the Redundancy process.
...it's going to be difficult for them to justify the significant difference in the scores awarded to you in the Redundancy process.

When your appraisal was conducted there was no indication before or after that it deviated from the documented appraisal policy'
Saying that the appraisal was subjective and feedback, only after you complained about your redundancy scores, and absent any further explanation is not good enough.
So, provided that you can evidence the above, and they don't have a satisfactory explanation for the discrepancies you have a reasonable chance of winning an unfair dismissal claim.

[ryanbhoy1984]

Re: Exchanging documents before a tribunal

That's about the size of it, yes. To my mind, this was a result of discrimination, due to me being seen to be a trouble maker for having raised a grievance 18 months prior to the whole process. This might be harder to prove than the above, but there are other factors that, in my opinion prove that they have discriminated against me, so it's not really a stretch to assume that the dismissal was also due to discrimination, or victimisation.

[Openlaw15]

Re: Exchanging documents before a tribunal

I'm not sure whether the offer is still on the table. The way I see it is the closer it gets to a full hearing, the more they'll pay to make it go away. They won't want this in the press, and I can be certain the press will be at the final hearing (I have an uncle that works in PR in Aberdeen, he arranges the press to be at certain events). I wasn't being greedy in refusing it either, I just didn't feel it was enough for me to walk away from it all.

Having researched your situation you're going to need a medical expert witness, someone who can be cross examined (challenged) at the tribunal. My view, is that your company will pay for its own psychiatrist expert to challenge any evidence you possess. Right now all's you have is hearsay, a random statement by GP who is not the relevant professional, and or a random statement from a psychiatrist but without his or her attendance, the statement even if it were a good one would still encounter difficulties. It is the tribunal who'll decided whether you have evidence to substantiate a disability. I have read enough cases on medical expert to know that judges to not take kindly to hearsay statements, or medical experts who say, i'll dialogue with the judge but am not going to be a medical witness. You should have paid for a report to be done by a psych. It may have been worth your while to have taken this through a court and not a tribunal. If the redundancy was unjustified it could potentially have been 'wrongful' dismissal, which is a court avenue and remedy.

[ryanbhoy1984]

Re: Exchanging documents before a tribunal

It's not just a random statement from my GP, it's a letter which answers a number of questions that they (the solicitors), put to him. The letter from my psychiatrist is a statement I requested from him about my disability status, and he wrote that he felt I fit the definition of having a disability.

I don't see what paying for a report from a psychiatrist would accomplish, I paid to visit the psychiatrist that I got the report from (through my medical insurance)

I received the following email from the Tribunal office, a couple of days ago, which suggests to me that the evidence I have at the minute should be sufficient, along with giving evidence on the day myself.

Thank you for your email of 15 March which I have referred to Employment Judge _____ who has asked me to advise you as follows.



The witnesses you wish to call at the Preliminary Hearing is a matter for you (provided they can give relevant evidence). However, it may by sufficient for you to lodge as documentary Productions copies of medical reports and any other medical evidence in relation to your alleged disability as you will be required to give evidence yourself and the focus of the definition of disability is S.6 of the 2010 Act is your "ability to carry out day to day activities".



EJ _____ suggests that you consider carefully this definition and also refer to the "Guidance on matters to be taken into account in determining questions relating to the definition of disability (2011)".



Whether you wish to call Doctors to give evidence, however, is ultimately your decision and EJ _____ suggests that if you are in doubt you should seek legal advise.



I attach for both parties information case management Orders which EJ _____ has directed be sent out for the Preliminary Hearing.