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. i have missed the window to ask for a review. i don't think the case would get to appeal. I would like to correct a point i made earlier, i said the lesson i learned was that solicitors lie and are not to be trusted. i now know my employer did not use a solicitor, they used an employer consultancy. I just took it as they were a solicitor because they said they were the employers legal representation. i apologise for the mistake.

[Openlaw15]

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

I didn't expect my employers solicitor to do me any favours but what I did expect is for a legal professional to tell the truth to all people under all circumstances. If they were not going to supply the minutes then they should have said and I would have asked the tribunal to request them. The court gave instructions for the bundle to be prepared by the employer. I gave them my documents and made a disclosure request for other documents such as the full minutes. yes it is a lesson learnt; that lesson is even solicitors lie and are not to be trusted.

This is rather different to lack of due diligence on your behalf. Have you asked for a reconsideration by the EAT on a point of fact, ie it was the court's fault and not yours?

[Yolanda]

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

You have been discussing procedural issues relating to ET in this thread but not the actual facts, ie merits of your case.

Hi. the facts of my case do not change the fact the judge relied on incomplete minutes. i only wanted to know about this issue in case it made a difference to the decision being fair. i'm still not sure but at least I have some information to take to a solicitor to see if I can go to appeal.

[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.

You have been discussing procedural issues relating to ET in this thread but not the actual facts, ie merits of your case. What were the facts? Are you going to attempt to appeal the ET's decision to an EAT based on a point of law?

[Yolanda]

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

Indeed, solicitors have a duty of care to their clients but they also have a duty to be honest in their dealings. Although this wouldn't help your case as such, if you think a solicitor or firm has acted dishonestly, you could consider reporting them to the SRA (Solicitors Regulation Authority). All solicitors and law firms are regulated by them and the authority can take action against those who do not comply with their code of conduct.

I would have requested the full minutes right after the disciplinary, before submitting the claim. Did you not appeal the decision to dismiss you after the disciplinary? I'd have thought this would have been part of the process and you would have requested the full minutes for that purpose. You could also have sent a SAR to your ex-employers, all this prior to issuing a claim. Having the benefit of proper advice from the start can make a big difference.

Hi. I requested the minutes after the meeting and was supplied incomplete minutes. I asked for complete minutes but they did not supply them. I went to appeal and they used the incomplete minutes to justify the dismissal. I asked for appeal minutes and was only supplied incomplete appeal minutes. I asked for complete minutes but they did not supply them. I did a access request and they did not include the minutes in the documents they sent me. they did not include the complete minutes in the bundle. then they said the complete minutes would be at tribunal and I took them at their word. if the employer had told me that then I would not have taken them at their word but it was their solicitor who told me that.

[Openlaw15]

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

Strict rules are not the issue, it's the lack of knowledge about employment law in general. Procedure is quite easy to learn as you can see on the court threads here, civil litigation is straightforward. You have x amount of time to do something and you need to fill in a certain form to do something else. That's the easy part. Understanding the substantive issues is the tricky bit. Employers are allowed to do a lot of things that many of us may think they shouldn't be allowed to do. They can also be caught out but you need to know how and when.

The ACAS code says a certain procedure must be followed, yet it is possible to dismiss someone without following any procedure whatsoever and still argue that, had the proper procedure been followed, the employee would still have been dismissed. If you think this only applies to cases where the employee commits a serious offence such as stealing or drugs, that's not the case.

How many employees out there know about Polkey and contribution? How many understand the ins and outs of TUPE? I would have had to understand all this and more, inside out, to win my case, only I didn't have to because I had legal representation. Without it, I wouldn't have had a hope in hell. The respondent was a small outfit run by a clueless, arrogant moron, but he had legal representation, albeit not very good one. My legal rep was far superior and that's how I won, had I been a LIP I'd have been beaten at the preliminary hearing. If you work for a large corporation, the respondent can hire a magic circle law firm to represent them. As a LIP, what would be your chances against them? Worse than those of a five year old playing against a 16 year old, I should think.

1 in 4 ETs are said to favour the employee, and am sure not all of these have lawyers representing them

[Yolanda]

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

I didn't expect my employers solicitor to do me any favours but what I did expect is for a legal professional to tell the truth to all people under all circumstances. If they were not going to supply the minutes then they should have said and I would have asked the tribunal to request them. The court gave instructions for the bundle to be prepared by the employer. I gave them my documents and made a disclosure request for other documents such as the full minutes. yes it is a lesson learnt; that lesson is even solicitors lie and are not to be trusted.

[Openlaw15]

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

Hi. in my case it wasn't a 'cant be arsed' attitude, it was a 'they are legal professionals so must be telling the truth' attitude. most people in my position have never gone through this before so have to assume that what I am told by a solicitor even it if is from the other side must be true. they took advantage of this which now puts the profession in a bad light.

charitynjw no apologies required its been a very interesting read.

But why would you think the employer's solicitor is going to do you any favours? You're essentially dragging his client over hot coals for you to win. Ok, why didn't you do it yourself, why were your bundles in with theirs? I just don't understand, it's like the prosecution filing the bundles for the defence and trusting that the prosecution won't omit important source documents. A lesson learnt I think .

[Openlaw15]

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

That is the crux of the whole thing. The majority of ET claimants are not legally represented because they can't afford the cost of legal representation and, even if they win, they won't get costs awarded in their favour. Furthermore, the average ET award is just £5k so there would hardly be anything left after paying your own legal costs. Respondents, on the other hand, are usually represented, making it a very uneven playing field.

The situations described above wouldn't make it past an employment lawyer, they would ask the other side for full disclosure before the hearing and wouldn't accept promises of providing the evidence at the hearing. I recently won an ET case (as a claimant) but had the luxury of pro-bono legal representation throughout the process. As a LIP, it would have been extremely difficult to win.

There is also more than just "winning", there's also the matter of how much compensation you get if you win, and this issue alone can be the subject of a whole volume. Going through the motions of making a good case for themselves is something most ET claimants just couldn't manage as LIPs, yet they hardly have a choice.

Sunny, why do you think the ET employee/ claimants 'just can't manage as LIPs'? The idea behind ET is that the UK's Constitution permits informal rules other than the strict court rules/ procedure in the normal civil courts, as is the case with local County Courts.

[Yolanda]

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.

Hi. in my case it wasn't a 'cant be arsed' attitude, it was a 'they are legal professionals so must be telling the truth' attitude. most people in my position have never gone through this before so have to assume that what I am told by a solicitor even it if is from the other side must be true. they took advantage of this which now puts the profession in a bad light.

charitynjw no apologies required its been a very interesting read.

[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!)

[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?

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?

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.