Employment Tribunal - disclosure by list

DiscriminationClaimant17

Hi all,

You were so helpful a couple of weeks ago to discuss my ET case that I wondered if anyone has any information about the process after disclosure by list and copy documents have been exchanged?

This exchange took place by email on Friday and I put a lot of care and thought into my extensive list of documents. My employer supplied a list of two documents. One of which is a letter which I have never seen in my life and I feel pretty confident has been fabricated after the fact rather than was just lost in the post for a number of reasons although would be difficult to prove. The other document is my grievance.

My question is whether I can ask for this document to be struck out as it has no relevance if I never received it (it's a discrimination claim so all he said/she said and since my employer didn't respond to my grievance it made it much more simple - they're now claiming that they responded to the grievance and denied the events in my grievance ever took place and that I'm mad! So back to he said/she said..)

Now although my hundred or so documents should outweigh the one in their favour, I still feel that this letter should be removed. Do I ask for proof of postage and if they can't produce it ask for it to be removed from the bundle? Who do I ask? The judge perhaps? Can I ask? Is it worth the bother?

The respondent's solicitor is producing the bundle by next week and I'm representing myself.

Thanks in advance for any help you can offer!!

sangie595

You aren't going to win this one, so move on. As you very rightly say, it's your word against theirs - to strike out a document purely on the grounds that you say you didn't receive it is taking your word over the employers. That isn't going to happen. If believing that one document invalidates your entire case and all your evidence, then you are in a lot of trouble! If it doesn't, then it's irrelevant, and you simply make it clear that you never received it.

DiscriminationClaimant17

It doesn't invalidate my case, it has no bearing on the outcome, but I expect it would have an affect on a possible remedy amount as I have added additional points in my schedule of loss based on their poor practice - one of these points was the failure to respond to my grievance.

So should I just respond to the email and make it clear that I never received it now rather than a judge turning around in the hearing in 3 months saying "well you didn't object at the time!"

steampowered

Have you actually seen a copy of this letter? If not, you should ask for it.

Nothing you described sounds like a good reason to exclude the letter from the bundle I'm afraid.

If you did not receive the letter, and/or you have substantial grounds to believe that the letter was produced after the fact, that is a matter which should be raised with the Tribunal at the hearing if the letter becomes a relevant document in the proceedings.

DiscriminationClaimant17

Sorry I went quiet, things have suddenly gotten busy after I wrote this. I thought it best to respond to the solicitor briefly saying that I hadn't received the letter and questioning its relevance ready to argue the full reasons at the hearing as you suggest Steampowered. (Yes the letter was attached to the email so I have now seen it). I have found in the ET3 reference to them admitting that they hadn't responded "as the accusations were preposterous" and they just didn't feel a need basically so I'll just bring that up at the hearing. And if the judge agreed it was irrelevant in the meanwhile as their ONLY piece of evidence supporting their version of events then bonus, but whether this was likely or not is yet to be seen. So that was Monday lunchtime.

I had a phone call from the ACAS conciliator on Monday afternoon telling me that they wanted me to "name my price" to settle out of court... I told them that the price I'd named was the one in my schedule of loss and it should be for them to put forward a figure if they disagreed with that one.

The conciliator is pretty down to earth and ended up saying "look, we both know how this goes, they offer 1000, you go down 1000 and you're still £28k apart" she told me that as it was the end of the day to go home and talk to my husband, write down my figures again mitigating the risk of loss and call in the morning with a figure and reasons for that amount (back to my not wanting to pluck them out of the air comment) but reminded me that they've just asked me to name my price... so I went back in the morning having chipped of a couple of percent for "mitigating the risk of loss" but arguing that the rest of the schedule of loss was still valid considering the strength of the case. I'm expecting there to be a bit of back and forth bringing me down and I have a figure in my head that is as low as I would be happy to accept.

They haven't come back at all yet so I'm assuming this is a process that usually takes a few days/weeks... I also understand that there will be a document to sign waiving my rights to bring this case back up again in future which I imagine is something they'll spend some time on if we can agree.

I'll certainly be wanting an agreed reference in there and I presume you have to withdraw your case before payment is made or is it usually done simultaneously? I really don't trust them anymore and wouldn't be surprised if I had to go back to court for payment of the settlement agreement... I know, very negative of me, but this year has totally worn me down and I'm not as trusting as I was before this process.

sangie595

You never withdraw your case until all conditions are complied with. That is why you are waiving your rights to bring a case - because they want you to withdraw and there is an agreed price. Please remember NEVER to tell ACAS that you agree until your are SURE you do. A verbal agreement with ACAS is binding. So always hedge your bets until you have decided 100%

DiscriminationClaimant17

Ok, that's a relief, and thank you for the tip about ACAS.

I feel like she's acting on my behalf as she's been very helpful to me and given assistance along the way but my employer has been very rude and dismissive of her until now, I have to keep reminding myself that she is supposed to be unbiased in her approach and not give away too much to her.

DiscriminationClaimant17

Is it common for these negotiations to go on for many days or weeks?

I expected it to be like buying/selling a house, putting in your offer and waiting for the phone to ring, often being finished within the day or at least 24 hours! Maybe I've just been lucky with buying/selling property?!

Pricivius

Negotiating settlement can be quick or can be slow - it can go either way. The other side will be working out how much they think the Tribunal will award if they lose, and then adding on their legal fees to get their worst financial scenario.


Depending on how realistic you have been with your Schedule of Loss, they will be working out what to offer in response. Did you take legal advice or research cases in reaching your figures?


You can put deadlines on your offers if you want to - it can work, but you need to be realistic and reasonable. Giving a company 4 hours is likely to be unacceptable, particularly if you're looking for big sums as they may need to get approval from several senior people, who will be in meetings, abroad, travelling etc. as well as legal advice from their lawyers who may be similarly unavailable at short notice.


There's no harm in offering £X if you agree by 5pm tomorrow, subject to agreeing COT3 wording. Be aware the wording is likely to include a confidentiality clause and non-derogatory clause (so you cannot slag them off). If you want an agreed reference, draft it now so it's ready for them to consider. You can even give it to ACAS alongside your offer. Bear in mind that the reference must be fair and accurate - they cannot write that you were fabulous if on balance, you were not. They can big you up, but only if they also include the negatives to present the balanced picture. Be realistic, but also bear in mind some companies refuse to give anything but a factual reference - dates and job title only.


You can speed this up if you want to...

DiscriminationClaimant17

Hi Pricivius,

I haven't taken legal advice on the amount, I've been representing myself and broke it down into several sections showing my calculations for each point so a years worth of lost wages, loss of statutory rights, injury to feelings (median award) uplift for failure to follow the ACAS code of practice, interest since the event.

I would be happy with a factual reference but I don't want the reason for leaving to appear as dismissal and I'm not sure what they'd put down at the moment (I was told that my maternity cover would be continuing and that I wasn't to come back from maternity leave unless I could meet certain conditions with my childcare) I'll get that written up ready then and make sure it says resignation.

For the meanwhile I'll take it as a positive sign that they approached me to settle, asked me to name my price and didn't come back within 10 minutes laughing I suppose!

The next deadline that the judge has set is for R's solicitor to put together an agreed bundle next week so I expect R won't want to pay for the solicitor to do that if settlement is possible - especially if all but two of the documents are mine! Fingers crossed eh...

steampowered

Cases can settle very shortly before the hearing. It does happen.

I have even seen cases settle during the hearing.

However, getting too close to trial can reduce the chances of an agreement being reached - because at that point the employer has already incurred legal costs and spent management time preparing for the hearing.

If they are asking for you to name the price, I would perhaps name 75% to at least show some movement and be prepared to be negotiated significantly down from that, as a very general rule of thumb?

Difficult to comment without knowing the details or anything about your case but £30k sounds like a pretty large award. I would have thought that even if your claim is successful you would have a less than 50-50 chance of getting things like an uplift for failure to follow the ACAS code of practice and less than 50-50 chance of getting an entire year's lost wages (it would be unusual to take more than a year to find alternative employment - you will usually be expected to demonstrate that you tried to find a new job). You need to discount both for (1) the risk of losing, and (2) the fact that even if you win you are very unlikely to get the full amount you asked for.