Help!!! Pre hearing review re constructive dismissal.

[friday13th]

Hi
I was bullied by my line manager at work from 2010. I reported this first incident to the department manager and got no help. Things came to a head in Oct 2011 when I got no help again and reported it to HR. This was then handled very very badly. Another set of events occurred in Dec and resulted in an official grievance. I was too scared to now work with my manager. My complaint was not upheld and my doctor signed me off sick.After exhausting the grievance prodedure I constructively dismissed myself. I tried to get my insurance to cover the legal costs for a tribunal, but they said I had less than 51% chance of success, so would not authorise. I lodged my complaint with the employment tribunal myself in August and had a hearing date for 13/12/12. Since then I have receved a letter from the law firm representing my employers threatening to go after me for their costs if I go ahead with the hearing (£6k plus vat). They approached the tribunal for a pre hearing review to have the case struck out or deposit order made. I have now had a letter to say a pre hearing review has been arranged in 2 weeks time. Can anyone help me? I have had to do everything myself so far. The union have been no help at all, at one point I was advised to just go back to my department as I couldn't prove anything this turned out later to be advice from my line managers union representative. I tried to ask a colleague for a witness statement, just to confirm when she had consoled me after the first incident and she was told not to by the union and that she could face a disciplinary if she did. Any help at all for what iI need to do ,take and say at this pre hearing review would be so much appreciated.

[bluebottle]

Re: Help!!! Pre hearing review re constructive dismissal.

You need to speak to a legal professional at your local Law Centre or Community Legal Service office. They can provide you with free or very low-cost legal advice/assistance. I am very concerned that your employers and their legal advisers have behaved in such an abominable manner. Your union seems to be about as helpful as I don't know what.

I am going to bump this post for one of our members who is conversant with Employment Law to look in on this thread. My main area of expertise is Criminal Law.

:bump:

[SpringerSpaniel]

Re: Help!!! Pre hearing review re constructive dismissal.

The letter from your employers representatives is a standard tactic to try and get you to drop your case.

If you have been bullied in the workplace, you can sometimes claim under the Protection from Harrassment Act as well as for breach of contract, the implied term of trust and confidence being breached.

The website www.bullyonline.org may also be helpful to you.

[miliitant]

Re: Help!!! Pre hearing review re constructive dismissal.

Evening

first thing i need to make you aware of is that a claim of constructive dismissal is very hard to prove and only then if a protected characteristic is breached As a rule. Only about 3 % of constructive dismissal claims are upheld. To prove a claim for constructive dismissal, you need to prove that the employer has acted unlawfully.

In order to pursue a claim for constructive dismissal, you must show that:

1. your employer committed a serious breach of your employment contract;
2. You did not accept the breach; and
3. you felt forced to resign because of that breach

thats the bad news, now for the good news

Failing to give you reasonable support to carry out your job without disruption, harassment, or bullying from fellow workers is a serious breach of your employment contract
and destroys or seriously damage the relationship of trust and confidence between employer and employee

But you need evidence, that is why you need all the grievance reports, disciplinary reports, conduct meetings etc. This is called a court bundle. Has their solicitor requested documents from you yet that you will use in court, and have you done the same against your employer

Provided you can establish a serious breach of contract occurred -- which you neither accepted nor waived -- you should not have much difficulty showing you felt forced to resign because of it.

A high proportion of constructive dismissal claims are settled before they go in front of a tribunal.

The solicitor will offer "sod off money" to make you go away. You need to consider that though after putting all the pieces in place

MOST COMPANIES DO NOT CARE ABOUT THE MONEY, ITS DAMAGE TO THE COMPANY REPUTATION THAT COUNTS AS EMPLOYMENT TRIBUNALS ARE OPEN COURTS

may ask how long you were employed for and the size of the company

The issue of costs is a tactic all solicitors use to get you to drop the case

in reality it is the judge who will do a cost assessmant at the case management/pre- hearing stage.
costs will only be an issue if the judge decides that your claim is vexatious and without merit and will advise if you wish to continue so do not let the cost issue worry you

thats for the judge to decide, not the solicitors

[friday13th]

Re: Help!!! Pre hearing review re constructive dismissal.

Hi

the case management order said we both had to exchange a list of documents by a certain date. I worked through the best that I could and submitted my list the day before the cut off. The day after (The date the list had to be exchanged by) a letter arrived from the tribunal setting the case management orders aside.My employer's solicitors must have found out before I did as they never submitted their list to me.

I had worked for the company over 3 years, prior to this I had 24 years with one company in the banking sector. The previous job only ended because my whole department was made redundant. Unfortunately for me I am up against a school in this one.

[Nic]

Re: Help!!! Pre hearing review re constructive dismissal.

Just wanted to say hope you get everything sorted Friday and miliitant is brilliant in these areas

[friday13th]

Re: Help!!! Pre hearing review re constructive dismissal.

[QUOTE=miliitant;284145]Evening

first thing i need to make you aware of is that a claim of constructive dismissal is very hard to prove and only then if a protected characteristic is breached As a rule. Only about 3 % of constructive dismissal claims are upheld. To prove a claim for constructive dismissal, you need to prove that the employer has acted unlawfully.

In order to pursue a claim for constructive dismissal, you must show that:

1. your employer committed a serious breach of your employment contract;
2. You did not accept the breach; and
3. you felt forced to resign because of that breach

thats the bad news, now for the good news

Failing to give you reasonable support to carry out your job without disruption, harassment, or bullying from fellow workers is a serious breach of your employment contract
and destroys or seriously damage the relationship of trust and confidence between employer and employee

But you need evidence, that is why you need all the grievance reports, disciplinary reports, conduct meetings etc. This is called a court bundle. Has their solicitor requested documents from you yet that you will use in court, and have you done the same against your employer

Provided you can establish a serious breach of contract occurred -- which you neither accepted nor waived -- you should not have much difficulty showing you felt forced to resign because of it.

A high proportion of constructive dismissal claims are settled before they go in front of a tribunal.

The solicitor will offer "sod off money" to make you go away. You need to consider that though after putting all the pieces in place

MOST COMPANIES DO NOT CARE ABOUT THE MONEY, ITS DAMAGE TO THE COMPANY REPUTATION THAT COUNTS AS EMPLOYMENT TRIBUNALS ARE OPEN COURTS

may ask how long you were employed for and the size of the company

The issue of costs is a tactic all solicitors use to get you to drop the case

in reality it is the judge who will do a cost assessmant at the case management/pre- hearing stage.
costs will only be an issue if the judge decides that your claim is vexatious and without merit and will advise if you wish to continue so do not let the cost issue worry you

thats for the judge to decide, not the solicitors

[/QUOTE

Thanks for the advice, it has been most helpful. Could I just ask one more thing, if the tribunal make a deposit order at the pre hearing review how does that work? Do I have to find a deposit to continue? and if i did is it returnable if I lose my case?

thanks

[miliitant]

Re: Help!!! Pre hearing review re constructive dismissal.

if a deposit is requested and granted, very rare though, it will be no more than £500

as stated, do not worry about costs and deposits as the notion from the solicitor has you worried

take each day at a time and dont ponder on "what if"

you will go nuts otherwise

[teaboy2]

Re: Help!!! Pre hearing review re constructive dismissal.

Also its very rare that a tribunal will make any cost order, and when they do they are strict rules applied such as section 40 of the employment tribunals (constitution and rules of procedure) act 2004.

When a costs or expenses order may be made40.—(1) A tribunal or chairman may make a costs order when on the application of a party it has postponed the day or time fixed for or adjourned a Hearing or pre-hearing review. The costs order may be against or, as the case may require, in favour of that party as respects any costs incurred or any allowances paid as a result of the postponement or adjournment.
(2) A tribunal or chairman shall consider making a costs order against a paying party where, in the opinion of the tribunal or chairman (as the case may be), any of the circumstances in paragraph (3) apply. Having so considered, the tribunal or chairman may make a costs order against the paying party if it or he considers it appropriate to do so.
(3) The circumstances referred to in paragraph (2) are where the paying party has in bringing the proceedings, or he or his representative has in conducting the proceedings, acted vexatiously, abusively, disruptively or otherwise unreasonably, or the bringing or conducting of the proceedings by the paying party has been misconceived.
(4) A tribunal or chairman may make a costs order against a party who has not complied with an order or practice direction.

To be honest you probably should have come to us earlier for help. You really need to get the employer to disclose documents of everything related to your grievances, and explain in detail in your claim where the employer was in breach of contract and why they were etc.

You will need a very strong argument and possibly witness statemens from people whom witness the incidence of bullying, Also make a diary listed the dates and descriptions of each event, to the best of your memory.

I would also be inclined myself to write back to their solicitor informing them that you feel their letter is nothing but an attempt to frighten you in to ceasing your claim to justice and there may amount to financial and emotional blackmail. Make it clear to them that you are well aware that its unlikely a tribunal would award costs and that you are well aware of section 40 of the employment tribunals (constitution and rules of procedure) act 2004. remind them that this is a employment tribunal case, not a civil court case held in county court where costs are awarded to the winner. Though being more experienced in such laws then you then i would not recommend you doing the same.

Though you should take the letter to the tribunal and state if they are so convinced they will win, then why they offer you the chance to dismiss your claim and in return they would not seek costs even though it is not for them to decide if they are entitled to claim such costs anyway.

[amelia33]

Re: Help!!! Pre hearing review re constructive dismissal.

Good luck with this, dont be panicked by their heavy handed tactics, not having your own solicitor is not the end of the world, and if you use a no win, no fee firm, they will take their 'cut' which you is usually about a third of any damages you win.

I have no legal expertise whatsoever, but sounds like good advice here

[friday13th]

Re: Help!!! Pre hearing review re constructive dismissal.

if a deposit is requested and granted, very rare though, it will be no more than £500

as stated, do not worry about costs and deposits as the notion from the solicitor has you worried

take each day at a time and dont ponder on "what if"

you will go nuts otherwise

Thank you for all your help. I survived the pre hearing review, but unfortunately did not get the result I wanted.

Most of the review time was given to the respondant and when my time came to speak i was told to make it brief.

I feel cheated for not be able to go through a full statement and produce evidence , as I would have done at a full hearing.

At least it's over and I will just have to put it all behind me, move on and rely on Karma for justice.

thanks again to everyone who posted advice, maybe I can use my new found knowledge to help someone else.