Consequences of loosing the case in Employment Tribunal

Pricivius

You have a duty of disclosure to provide the other party with any relevant documents. This duty is ongoing and therefore anything you find after the disclosure date must be disclosed. You cannot sit on documents and you cannot ambush the company with documents on Monday. If you do, you run the risk of the Judge refusing to allow you to use the evidence if the company has not seen it before, despite you having it available beforehand.

Whilst the company appear to be less than compliant with the ET Rules, you really should maintain the high ground and continue to do things properly. I suggest you paginate the medical report and disclose it immediately if you intend to rely on it.

zzzLazyDaisy

Is the medical report in relation to the compensation / injury to feelings calculation? If so they can't really do much with it, as that doesn't even come onto play until the tribunal has decided whether or not your OH was discriminated against.

Also, if you are in settlement negotiations, the report (assuming it supports your OH's case) may be useful in encouraging the employer to settle.

Either way, Pricivius is right. If you have been ordered to disclose all relevant documents, you must do so, otherwise you can hardly complain about the respondent's actions. Also it is not unknown for the tribunal to adjourn the hearing if the other party needs to seek its own expert advice or call a witness to give evidence on a previously undisclosed document, in which case there is a risk of an order of costs being made. It isn't a particularly common place scenario, so don't get too worried about it - but DO e-mail or fax the report over to them now and take 6 copies with you (3 for the tribunal, 1 for the witness stand, 1 for the solicitor, and 1 for your own bundle). Have the original available in case the tribunal wishes to see it.

katekat

Thank you for another good advice, we sent it over today.

I have a question about how to cross examine an evidence regarding the people who left the company and they did not follow the procedures (and are not witnesses). When can I bring it up? Same with asking questions about failed HR practices and lack of response from them. Do I ask those questions to to the respondents representative?

zzzLazyDaisy

katekat wrote: »

Thank you for another good advice, we sent it over today.

I have a question about how to cross examine an evidence regarding the people who left the company and they did not follow the procedures (and are not witnesses). When can I bring it up? Same with asking questions about failed HR practices and lack of response from them. Do I ask those questions to to the respondents representative?

You can only ask relevant questions, and you can only ask those questions of the respondent's witnesses.

It is difficult to know how a failure to follow procedures where another employee is concerned is relevant, especially when that person is not attending the tribunal to give evidence on behalf of your OH. If you feel you must, then you should put the question to the respondent's witness "it is true, isn't it Mr Bloggs, that blah blah'. But if the witness says 'no that is not true' where does that leave you, since you have no evidence to prove otherwise.

katekat

Hi LazyDaisy, what it is, the original grievance was against line manager who treated less favourably, discriminative, aggressive etc. The complaints were made prior to the grievance to the general manager to adress/investigate/resolve the issues, but they automatically took side of the Line Manager, defending and excusing him, instead of doing a proper investigation, so the grievance was complaining about general manager's conduct as well. The general manager left shorty after OH lodging the grievance. Emails with concerns and incidents descriptions were also sent to HR, but they never addressed them, just left it for general manager to deal with.

Now, the question is on how to point of the failures of general manager who left but was a part of discrimination, less favourable treatment. HR not reacting to complaints is different - as this is more of a company failure rather than individual, so how do we take it out to light at the hearing?

zzzLazyDaisy

katekat wrote: »

Now, the question is on how to point of the failures of general manager who left but was a part of discrimination, less favourable treatment. HR not reacting to complaints is different - as this is more of a company failure rather than individual, so how do we take it out to light at the hearing?

The way to deal with it is for OH to tell the tribunal what happened.

Presumably this is referred to in the ET1, and in OH's statement?

How THEY respond to that is up to them. They should be calling the GM to give evidence, to dispute what OH is saying. If they don't, they will have to rely on cross examination of OH to show that what OH is saying is not true, or does not amount to discrimination.

At the end of the hearing, both sides get a chance to sum up. That is just to do a quick summary for the judge of the important issues that have been raised in evidence. It is important not to rehash the case (remember the tribunal has the statements to refer to, to refresh their memories).

But one thing you (or your OH) can do is to point out to the tribunal that it is OH's case that the general manager discriminated against him in that he (very brief summary of what he did), AND THE RESPONDENT has not produced the general manager to give evidence about this, and indeed had failed to produce any evidence whatsoever to counter this allegation.

By the way, you do need to be clear about what you are focussing on. Managers get things wrong, they may even be generally bad managers. But in order to win your case you need to focus on the UNLAWFUL discrimination. That is, you need to show that the manager treated OH differently from the way he treated other employees, and this was for a reason relating to his race/colour/disability (whatever the discrimination is claimed to be). It is not enough that the manager failed to investigate the grievance - that might be because he was a bad manager - it has to be that he failed to investigate the grievance BECAUSE of a discriminatory reason. So OH would say 'X did this, and I believe this was because of my race/disability/whatever' Then the question is, what led OH to believe that it was because of his race that he was being treated in this way.

In other words, you need to follow through, and join the dots. That might be as simple as saying that in the grievance against the first manager,OH raised the discriminatory conduct as an issue, and the GM refused to properly investigate, thus perpetuating the discrimination, and that this discriminatory treatment was endemic in the organisation.

Does that make sense?

BTW did the company have an equal opportunities / anti discrimination policy? Is that in their bundle? In their evidence do they say that they are given training on equal opportunities? If they don't give this sort of evidence, then in your summing up, you can point out to the tribunal that the respondent's witnesses have not produced any form of anti-discrimination policy in their bundle, and their witnesses have not given evidence about any anti-discrimination training. That it is OH's case that discrimination was an organisational problem, which the company did nothing about, and the respondent has not produced any evidence to counter this allegation (if that is the case).

Dx

katekat

Thank you so much LazyDaisy. We will be busy tonight preparing supplementary statement and the summary. No policies at all in the bundle, no reference to equal opportunities training. Nothing really substantial in the bundle except of some time keeping issues from 2009 (never disciplinary, just print outs from the time and attendance sheet), documentation of the disciplinary against OH due to unauthorised absence (which took place just after informal grievance) and documentation of the grievance hearings informal and formal (but no documentation from investigations).
We have a feeling that on the day we will be approached with an interesting offer of settlement but OH is quite determined to take them to court as he just want to see 'the justice' and for him it was never about the money... Still tempting to inform the media, especially that, not naming the company, they had some international media highlights for race discrimination early last year...

zzzLazyDaisy

katekat wrote: »

We have a feeling that on the day we will be approached with an interesting offer of settlement but OH is quite determined to take them to court as he just want to see 'the justice' and for him it was never about the money..

Just a note of caution (forgive me, I'm a lawyer....)

These cases can literally go either way. If there is a reasonable offer of settlement, do consider it. But make sure that the settlement is put to the tribunal and ask the tribunal to make an order to that effect.

Why? partly because a tribunal order, even just recording the fact that the case has settled for a particular sum, is a matter of public record, and you are in a strong position to refuse any attempt to 'gag' you.

Also, I have known cases where the parties have settled 'at the door of the court', on the basis that the deal will be finalised through ACAS - and then the respondent has been obstructive and difficult, with the result that the claimant has had to ask for the case to be re-listed. Okay, it doesn't happen very often, but given the jiggery pokery that you have experienced with this respondent, I would want the settlement nailed down there and then.

Uncertain

katekat wrote: »

We have a feeling that on the day we will be approached with an interesting offer of settlement but OH is quite determined to take them to court as he just want to see 'the justice' and for him it was never about the money...

Be very careful here and forget any ideas of "justice". A civil court (or tribunal) is there primarily to compensate people for their losses. Normally this can only be done by awarding sums of money even if the loss was not financial. Its function is not the punish the "guilty" party.

katekat

Hi Daisy, just picking up on your advice below:

zzzLazyDaisy wrote: »

The way to deal with it is for OH to tell the tribunal what happened.


BTW did the company have an equal opportunities / anti discrimination policy? Is that in their bundle? In their evidence do they say that they are given training on equal opportunities? If they don't give this sort of evidence, then in your summing up, you can point out to the tribunal that the respondent's witnesses have not produced any form of anti-discrimination policy in their bundle, and their witnesses have not given evidence about any anti-discrimination training. That it is OH's case that discrimination was an organisational problem, which the company did nothing about, and the respondent has not produced any evidence to counter this allegation (if that is the case). - Is the witness statement on poor performance (before grievance, but no specific examples or documentation, and mainly after grievance, but still no documentation, specific examples or action taken)) and poor conduct(after raising grievance; unauthorised absence and alleged aggressive behaviour months after grievance) is enough evidence to counter the allegations that you described above about organizational discrimination?

Dx