ET Case won - remedy to be agreed between parties

katekat

Hello,

I am posting an update to my previous thread https://forums.moneysavingexpert.com/discussion/4373327= where I got a lot of help from MSEs on OH Tribunal case on race and part time workers discrimination.

I wanted to thank you all who contributed especially Lazy Daisy, as we won the case!!! 6 out of 8 our claims were well founded by the Tribunal and the bast part was that I was representing OH and did all the cross examination and we did all the hard work together and it paid off.

Now the last remaining task is - to agree the remedy with the respondent, as the judge did not decide. Our question is, how do we calculate it. The claims won were:

Direct race discrimination
Less favourable treatment on ground of race
Discrimination due to part time workers status
Less favourable treatment on ground of part time workers status
Victimisation on the grounds of race
Victimisation for raising a grievance on protected grounds
Victimisation on grounds of part time workers status
Harrasment on ground of race

There was also psychiartic injury as a result of the events above, however it was not put forward by us as a separate claim (we didn;t know if we should).

There was no schedule of losses agreed and there was no loss of earnings, however I did loose 4 days of my anual leave for the hearing.

How do we assess the award, do we count the injury to feelings separately for each of the claims won or just one? What do you think is achievable?

Many thanks for your help again!!!:T

Takeaway_Addict

What happened between the end of the last post and this?

Takeaway_Addict

Also you say you won 6 of 8 and then list 8 you have won? Which is it?

Takeaway_Addict

katekat wrote: »

Hello,

I am posting an update to my previous thread https://forums.moneysavingexpert.com/discussion/4373327= where I got a lot of help from MSEs on OH Tribunal case on race and part time workers discrimination.

I wanted to thank you all who contributed especially Lazy Daisy, as we won the case!!! 6 out of 8 our claims were well founded by the Tribunal and the bast part was that I was representing OH and did all the cross examination and we did all the hard work together and it paid off.

Now the last remaining task is - to agree the remedy with the respondent, as the judge did not decide. Our question is, how do we calculate it. The claims won were:

Direct race discrimination
Less favourable treatment on ground of race
Discrimination due to part time workers status
Less favourable treatment on ground of part time workers status
Victimisation on the grounds of race
Victimisation for raising a grievance on protected grounds
Victimisation on grounds of part time workers status
Harrasment on ground of race

There was also psychiartic injury as a result of the events above, however it was not put forward by us as a separate claim (we didn;t know if we should).

There was no schedule of losses agreed and there was no loss of earnings, however I did loose 4 days of my anual leave for the hearing.

How do we assess the award, do we count the injury to feelings separately for each of the claims won or just one? What do you think is achievable?

Many thanks for your help again!!!:T

quoted.....

ValHaller

Takeaway_Addict wrote: »

quoted.....

Why? OP does not seem to be in the habit of deleting if miffed.

Although OP seemed to have gone away in January, obviously a lot of water has gone under the bridge - and of all the forums on MSE this is the one most likely to have a sensitive case in progress where the OP will feel very cautious about posting on matters in progress.

Takeaway_Addict

ValHaller wrote: »

Why? OP does not seem to be in the habit of deleting if miffed.

Although OP seemed to have gone away in January, obviously a lot of water has gone under the bridge - and of all the forums on MSE this is the one most likely to have a sensitive case in progress where the OP will feel very cautious about posting on matters in progress.

I was just wondering as I find it interesting, they did say that the ET was 2 weeks and that was in Jan...obv it could be delayed.

I quoted just in case

zzzLazyDaisy

Takeaway_Addict wrote: »

I was just wondering as I find it interesting, they did say that the ET was 2 weeks and that was in Jan...obv it could be delayed.

I quoted just in case

I imagine the case went part-heard (ie it over-ran the allotted time, and they had to go back later to finish the hearing) or was postponed for some reason.

Well Done OP!!!! :T

The tribunal doesn't have the power to hear claims for personal (psychiatric) injury but recognition of the the effect should be made under compensation for injury to feelings. There is also interest payable.

I am away from home at the moment. I'll be back next week and will come back and give you some guidelines. In the meantime you should get together as much evidence as possible about OH's psychiatric illness, and importantly confirmation from gp/consultant that in their professional opinion the employers actions caused or contributed to OH's psychiatric state (in other words it isn't enough just to have evidence that he had psychiatric problems, that could have been caused by something not related to the employment like a bereavement or whatever)

Edit: There was a case on costs a while ago which went to the EAT - the employee won and claimed costs against the respondent - who had sent an intimidatory costs warning letter to the employee during the proceedings trying to get them to drop the case. The EAT criticised the employers bullying tactics and basically said - 'sauce for the goose sauce for the gander' and agreed that a costs order against the employer was appropriate in these circumstances. I'll find the case when I get back.

Dx

katekat

Sorry to all those who were wondering what happened with us since January and that we never followed on from the original post.
We went to the Tribunal on the agreed date in Jan but after all day of waiting we were sent home with nothing as the tribunal was oversubscribed with cases and they had to postpone ours - till end of April. Between that time we wanted to relax and do not think about it as it caused us enough stress.

It was really stressful on the first day of the hearing when OH was cross examined but it gave me confidence and allowed to revise my cross examination in similar way OH was questioned. I had 4 witnesses to cross examine and it took me 2 days.
Sorry for getting the number of claims number wrong, it was very fresh in my head, actually there were 10 original issues on the 'Issues list' and 8 of them (which I listed) were won.

Regarding the psychiatric injury, we had the medical report and GP and therapists letters giving clear reference of work stress in the bundle during the hearing. Diagnosis letter mentioned that the severe depression and anxiety was related to situation at work and the therapy was aimed on how to deal with the situation at work. Do you think we would need anything more to back it up?

Also a question about remedy hearing - do they look at the evidence there again or just look at the cases of law? How to prepare for it?

Thank you so much.

katekat

Unfortunately my internet connection was cut off last Thursday (contract finished new provided not hooked up yet) and only able to be online at work or like now by a friend. So apologies if I did not reply regularly.

katekat

bump

any more advice on remedy in discrimination cases? i just read somwhere thst if more than one type of discrimination was proven then vento guidelines should be applied separately for each- would you agree?

any advice on remedy hearing and psychiatric injury claim?

zzzLazyDaisy

katekat wrote: »

bump

any more advice on remedy in discrimination cases? i just read somwhere thst if more than one type of discrimination was proven then vento guidelines should be applied separately for each- would you agree?

any advice on remedy hearing and psychiatric injury claim?

Hello katekat

I am not sure what you mean when you say that the vento guidelines should be applied separately for each? If you mean that the tribunal should look separately at the each of the 8 heads of claim that were found to be justified and award a separate sum for each head, applying the vento guidelines in each case - that is very unlikely to happen. Why, because that would lead to an overall compensation figure that would be punitive to the employer rather than restorative to the employee. In any case, one action or event could give rise to several claims under law, but to award separate heads of compensation under each head without paying attention to the underlying evidence could serve to unjustly inflate the compensation award.

This summary of the vento guidelines may help

http://www.pcs.org.uk/en/resources/legal_toolkit/legal_advice_from_thompsons_solicitors/

I suggest that you look at settling in the mid range of the vento guidelines, on the basis that it would be inappropriate to make an award in the lowest segment given that this was more that a 'one off' incident and also taking into account the serious adverse effect the series of discriminatory actions and events had on OH's mental and psychiatric wellbeing.

It isn't possible for anyone here to give you a figure because we were not at the tribunal, we did not hear the evidence, and we haven't seen the tribunal decision.

If this goes to a remedies hearing, the tribunal will not hear all the evidence again. It will be the same tribunal and they will have access to their notes from the substantive hearing. They are simply there to assess the award and come to a fair and equitable sum that reflects the seriousness of what happened, but does not go so far as to be punitive. So obviously the medical evidence is important and you should draw the tribunal's attention to this, as it is evidence of the effect all this had on OH.

Another important point is whether the discrimination was institutional or malicious. By this I mean - did an individual manager conduct a campaign of bullying, discrimination and harassment against OP because s/he did not like his race/colour, or was it more that the employer failed to put in place proper procedures which meant that there was a discriminatory element to the way in which the organisation operated which OH got caught up in, and the employer failed to take steps to rectify this.

Of course this does not excuse institutional racism - hence OH winning his case. But in term of compensation, that is likely to attract a lower award than if an individual manager deliberately targets an individual employee and conducts a campaign of racist bullying and harassment against him.

You may also wish to review the way in which the respondent's witnesses gave their evidence. For example, if the tribunal expressed concern in its decision about the lack of honesty and/or attempt to conceal or destroy evidence by the respondent, that is worth mentioning as you may be able to say that the respondent's conduct during the hearing in itself amounted to racial discrimination and harassment, and should be taken into account in assessing the award. But you need to be guided by the tribunal's wording of the decision on this - a respondent has the right to defend the claim and put forward its best case, and it is not the place of the tribunal to punish the respondent for doing this. So you need to be careful not to 'shoot yourself in the foot'.

Basically, it is best to approach the assessment with objectivity and dignity, concentrating on the facts and the evidence. Any indignation or righteousness will in any event be ignored and could damage the case for compensation.

One other thing... if this goes to a hearing, in all probability whatever is said isn't going to make a huge amount of difference as the judge will be well aware of the vento guideline and will have one eye on avoiding an appeal. S/he will probably have already reviewed the facts of the case and will almost certainly have come to a ballpark figure, so the points you and your opponent make on remedies will in all probability affect the final figure in that general ballpark, rather than swaying the tribunal into awarding compensation in an entirely different vento bracket, if that makes sense?