does et judge need full minutes of disciplinary hearing?

[Yolanda]

Hello. I am new here. I took my employer to et but they did not put the full minutes of the disciplinary and appeal in the bundle. Almost everything I said was cut out apart from a few short questions and answers. I queried it with them and they said the full minutes would be at the et. Stupid me believed them then at et they did not supply the full minutes. I lost my case because the judge based his decision on the minutes he had, not the full minutes. The reason this bothers me is because when the et judge gave his reasons as to why I lost, he made reference to several things that swayed his decision that I had not responded to in the minutes, he took inference from my lack of response. But I had responded to them at length but the employer had not included my responses. The et judge knew the minutes were not full as I wrote it in my et1 form and I stated it athe tribunal. Was it fair for the et judge to make a judgement without being given the full minutes of the disciplinary and appeal meetings? Thank you.

[Yolanda]

Re: does et judge need full minutes of disciplinary hearing?

Hi. does no reply mean that no one knows the answer? I have googled but cant find an answer. Thank you

[charitynjw]

Re: does et judge need full minutes of disciplinary hearing?

Hi Yolanda & welcome to LB.

When was the ET hearing, & was it the hearing proper, or was it a PHR, etc.

[Yolanda]

Re: does et judge need full minutes of disciplinary hearing?

Hi. the et hearing was at end of april. I don't know what a phr is. all I know is it lasted a full day and the judgment at the end was I had not been unfairly dismissed.

[Yolanda]

Re: does et judge need full minutes of disciplinary hearing?

Hi. I could not refer to quotes in the minutes because they did not put the full minutes in the bundle. most of what I said was missing. I said this in my et1 form and at the tribunal. Thanks

[Yolanda]

Re: does et judge need full minutes of disciplinary hearing?

Hi. my copy was the same as the copy in the bundle. they have never given me the full minutes and I have asked for them. they said the full minutes would be at tribunal but they were not. Thanks

[charitynjw]

Re: does et judge need full minutes of disciplinary hearing?

You do have a short window of opportunity to appeal the decision, but as [MENTION=86152]Sunnyside[/MENTION] has indicated, the appeal will be 'sifted' & many appeals are rejected as having no prospects.

Some info HERE

[Openlaw15]

Re: does et judge need full minutes of disciplinary hearing?

Hello. I am new here. I took my employer to et but they did not put the full minutes of the disciplinary and appeal in the bundle. Almost everything I said was cut out apart from a few short questions and answers. I queried it with them and they said the full minutes would be at the et. Stupid me believed them then at et they did not supply the full minutes. I lost my case because the judge based his decision on the minutes he had, not the full minutes. The reason this bothers me is because when the et judge gave his reasons as to why I lost, he made reference to several things that swayed his decision that I had not responded to in the minutes, he took inference from my lack of response. But I had responded to them at length but the employer had not included my responses. The et judge knew the minutes were not full as I wrote it in my et1 form and I stated it athe tribunal. Was it fair for the et judge to make a judgement without being given the full minutes of the disciplinary and appeal meetings? Thank you.

Update:

I did some research and basically, you can ask for tribunal to reconsider the 'fresh evidence' as the employment tribunal's role is to do fact-finding, ie deal with the facts of the case. The employment appeal tribunal deals with points of law as discussed (below). If the tribunal will not reconsider the evidence, then you could ask the Employment Appeal Tribunal to look at the points of law for fresh evidence (see below) based on the principles in: Ladd v Marshall [1954] 1WLR 1489. These are "having regard to the overriding objective, i.e.: 10.3.1 the evidence could not have been obtained with reasonable diligence for use at the Employment Tribunal hearing; 10.3.2 it is relevant and would probably have had an important influence on the hearing; 10.3.3 it is apparently credible: Ladd [1954].

You can appeal to an EAT providing and only if it were based on a point of law. A point of law means a statute section or principle or a case law legal principal, ie case law decisions (ratio). So the point of law in your case will be relating to the admissibility of 'evidence.' So, you have 'fresh evidence' that the tribunal did not have access owing to the unreasonable conduct by the employer. The employer it could be argued, acted unreasonably by not providing the full minutes. So your point of law is the law for entering fresh evidence. In addition, the point law may relate to case law surrounding unreasonable conduct by the employer for impeding evidence perhaps. I believe you can also ask for a reconsideration by the first employment tribunal before it gets to the Appeal stage.

[charitynjw]

Re: does et judge need full minutes of disciplinary hearing?

A person I know was put in a similar position.

They relied on a promise by the employer's sols to copy & submit a supplementary bundle to the ET.

At the hearing, it became evident that the solicitors had failed to do so.

Even though this promise was in writing & this was pointed out during the hearing, the ET judge proceeded without this (crucial) evidence,

The judgment, unsurprisingly, went in favour of the employer.

It was appealed, but as the supplementary bundle was not deemed 'new evidence', the appeal didn't even get past the sift.

I wonder if this is a tactic often used by employers' solicitors; if so, they should be utterly ashamed of themselves.

[Openlaw15]

Re: does et judge need full minutes of disciplinary hearing?

The point here is, does Yolanda have any fresh evidence to ask the tribunal to reconsider? By the sounds of it, they were never given the full minutes of the disciplinary to start with, they should have asked the respondent to disclose them before the hearing so they could refer to them in their WS but that was not the case. What fresh evidence can they submit?

It is new evidence as the judge never had access to it the first time. If the tribunal won't reconsider its decision then the Op can make an application to the Employment Appeal Tribunal based on Ladd [1954]. Whether or not the EAT accept the appeal or whether the principles in said case authority are satisfied depends on the merits of the Op's facts.

[charitynjw]

Re: does et judge need full minutes of disciplinary hearing?

It is new evidence as the judge never had access to it the first time. If the tribunal won't reconsider its decision then the Op can make an application to the Employment Appeal Tribunal based on Ladd [1954]. Whether or not the EAT accept the appeal or whether the principles in said case authority are satisfied depends on the merits of the Op's facts.

Hi Openlaw

With reference to my (above) post, this point was argued strenuously.
'However, as the 'evidence' was available at the time of the ET hearing, albeit not heard (for whatever reason), EAT said that it wasn't 'new'.

[Openlaw15]

Re: does et judge need full minutes of disciplinary hearing?

Hi Openlaw

With reference to my (above) post, this point was argued strenuously.
'However, as the 'evidence' was available at the time of the ET hearing, albeit not heard (for whatever reason), EAT said that it wasn't 'new'.

CPR Part 31 Practice Direction on disclosure

Under normal CPR for the courts if the party fails to disclose documents, the party can ask the court for its admissibility: Rule 31: 21. So the Tribunal cannot have any more power than the UK Courts.

Charity, where's the authority to support that? New evidence or fresh evidence means evidence that has not been admitted into proceedings. I find it difficult that the EAT has the right to say that evidence that could have been made admissible but for various reasons was not, was not admissible. It is should have been argued that whether it was in the bundle previously or not is irrelevant. It's my view that the EAT in the situation you recount was an error of law by the EAT.

[charitynjw]

Re: does et judge need full minutes of disciplinary hearing?

CPR Part 31 Practice Direction on disclosure

Under normal CPR for the courts if the party fails to disclose documents, the party can ask the court for its admissibility: Rule 31: 21. So the Tribunal cannot have any more power than the UK Courts.

Charity, where's the authority to support that? New evidence or fresh evidence means evidence that has not been admitted into proceedings. I find it difficult that the EAT has the right to say that evidence that could have been made admissible but for various reasons was not, was not admissible. It is should have been argued that whether it was in the bundle previously or not is irrelevant. It's my view that the EAT in the situation you recount was an error of law by the EAT.

A review of the EAT's decision was requested.
The (then) President of the EAT upheld the original decisions of the ET & EAT.
Hard for a LiP to argue with that.

[Openlaw15]

Re: does et judge need full minutes of disciplinary hearing?

A review of the EAT's decision was requested.
The (then) President of the EAT upheld the original decisions of the ET & EAT.
Hard for a LiP to argue with that.

Did you friend apply to the ET arguing the fresh evidence as admissible? I assume the person did. However, 'due diligence' is key for Ladd (1954) and based on Ladd, the ET, or EAT, it's lazy I suppose to rely on a solicitor acting for the employer. The solicitor is clearly doing this tactically owing to the 'can't be arsed' attitude by the claimant. It does make sense now having considered this angle. It's a very strict approach but it's reasonable in the court's/ tribunal/s eyes.

[charitynjw]

Re: does et judge need full minutes of disciplinary hearing?

Did you friend apply to the ET arguing the fresh evidence as admissible? I assume the person did. However, 'due diligence' is key for Ladd (1954) and based on Ladd, the ET, or EAT, it's lazy I suppose to rely on a solicitor acting for the employer. The solicitor is clearly doing this tactically owing to the 'can't be arsed' attitude by the claimant. It does make sense now having considered this angle. It's a very strict approach but it's reasonable in the court's/ tribunal/s eyes.

Months & months of pre-trial preparation (to the virtual exclusion of any other part of life; it becomes an obsession) culminated in a 2-part bundle, which then was examined at length & agreed by the employer's sols.
It was at this point, just before the hearing, that they made the 'generous' offer to photocopy & submit the bundles......they had the employees & resources on hand, no skin off their nose, etc.
They subsequently gave assurance that all was done.
It wasn't until during the hearing, when the 2nd part of the bundle was referred to in evidence, that it became evident the employer's solicitors had deliberately failed to submit it.
& the ET judge swallowed that bs...................
I'm with @Sunnyside on this; ET cases are hard to win without legal representation; even if you do win, the rules on compensation, etc are difficult to understand, & the whole system seems stacked in favour of the employer. (Many of the high-profile cases you hear about are from the CoA upwards).

(Apologies to the OP, [MENTION=86147]Yolanda[/MENTION], for hijacking the thread, btw!)