Employment Tribunal- Non compliance of Orders

sheilatakeabow89

Hello all, 
I have spent a few hours in the rabbit hole of this forum and there are so many of you offering great advice I thought I’d try. 

I have a tribunal late in the year and after the preliminary we were given orders. 

The respondent has since not obeyed 3 of them having radio silence from them for 7 weeks with no response to my emails/when CC’d into my requests to the tribunal office. The next deadline is tomorrow for requesting copies of documents. 

So far I don’t have their amended response, their response to my loss or their list of documents. Tomorrow they will fail to send me their request of documents. 

I have applied for an order for the 3 previous and will do the same for this next one but I feel like I’m beating a dead horse. 

I have no idea what their argument is or what documents they have. I’ll keep sending my stuff and applying for help from the tribunal office but at what point does it become unfair? I’ve trawled through thousands of ET decisions and haven’t seen a similar situation, only no ET3. I am unrepresented and they have a legal team. It makes no sense for them to stop participating and if it carries on I can’t help feel I’ll be at a real unfair advantage, especially if they don’t send me what I have requested. 

Have any of you any experience of a similar situation? Do legal teams do this often and come back in to participating later in the game? 

Thanks for reading! 

Comms69

Yes. This happens often,

And yes, employers / their reps will often sit down at the table last minute.

It's not fair, but you keep highlighting this to the court and they will use that as part of the balance of probabilities argument 

[Deleted User]

Sorry, that is wrong advice.
Failure to comply with directions is not relevant when applying the balance of probability standard to the facts contended by the parties in their respective submissions to the court. 

sheilatakeabow89

Comms69 said:

Yes. This happens often,

And yes, employers / their reps will often sit down at the table last minute.

It's not fair, but you keep highlighting this to the court and they will use that as part of the balance of probabilities argument 

Thank you for your reply. How infuriating that they can be late and uncooperative and just come back later on. They’d applied for my case to be struck out before, I’m sure they’d have done the same again if it was me who was late. Ugh 😩 Never mind, I’ll just keep plodding on. They’re supposed to do the bundle though... should I prepare my own? 

sheilatakeabow89

Haldane said:

Sorry, that is wrong advice.
Failure to comply with directions is not relevant when applying the balance of probability standard to the facts contended by the parties in their respective submissions to the court. 

So it’d be negatively viewed but not a factor in deciding result? Or would it not even be negatively viewed? I can understand it not being part of the decision as they have to go on facts of the case, but not hearing their argument and not being able to disprove it before the big day worries me. They could pull anything out of a hat and I’d be left with no way to show evidence against it since I’ve no real clue the angles they’re going to take. Their response said that my complaints were unclear so they wouldn’t answer them. In hindsight my complaints were there but not wrote in the clear and concise way the judge helped to word them at the preliminary. Too much emotion and lack of research/experience in writing an ET1. 

Undervalued

sheilatakeabow89 said:

Haldane said:

Sorry, that is wrong advice.
Failure to comply with directions is not relevant when applying the balance of probability standard to the facts contended by the parties in their respective submissions to the court. 

So it’d be negatively viewed but not a factor in deciding result? Or would it not even be negatively viewed? I can understand it not being part of the decision as they have to go on facts of the case, but not hearing their argument and not being able to disprove it before the big day worries me. They could pull anything out of a hat and I’d be left with no way to show evidence against it since I’ve no real clue the angles they’re going to take. Their response said that my complaints were unclear so they wouldn’t answer them. In hindsight my complaints were there but not wrote in the clear and concise way the judge helped to word them at the preliminary. Too much emotion and lack of research/experience in writing an ET1. 

That is always the difficult bit when self representing.

It shouldn't happen but solicitors (I assume) acting for your ex-employer know just how far they can push this sort of thing! If you don't get the material a reasonable time before the hearing, despite instructions / requests, it would be perfectly reasonable for you to ask for a delay. If they really overdo it and your keep reporting it to the tribunal they might impose a sanction but that is of no direct benefit to you. It shouldn't of course influence the result but if you win, and the other side have annoyed the judge, he might (just might) look a little more favourably upon you when he is deciding how much to award!

smmjh11

Hi
When I represented myself and had to attend a preliminary hearing the Judge gave a clear timeline for the sequence of events. The schedule of loss, the date to exchange witness statements and also for me to receive a copy of the bundle of documents for the hearing these all had to be done by a certain date. I did request at my preliminary hearing a copy of a transcript of a meeting that was recorded. The judge asked the respondent to do this although it was not noted on the judges orders. When I asked the respondents solicitor for a copy of this they said that it was not for them to do, so I emailed the tribunal office dealing with my case who then informed the judge he then sent out an order for the respondent to make a copy of the transcript and they complied with the order. 

I would suggest that you email the tribunal office dealing with your case and clearly identify what orders the respondent has failed to do as requested by the judges orders. Whenever I sent the respondent a request for any documents I always copied in the tribunal as well.
Just for information I represented myself and came up against a Barrister and was still successful in my claim so it can be done. The documentation for me was crucial in winning my case and I caught out the managers when I cross examined them. Don't be bullied by any threats of the respondent before the hearing trying to claim costs if you are unsuccessful as this is very rare and they only award if the claim has no real merit and was vexatious. The judge could request a deposit order at the preliminary hearing if he believes that a specific allegation has little reasonable prospect of success which never happened at my preliminary hearing.

steampowered

You could seek an "unless order" specifying that the employer's defence is struck out unless they comply with the order.

That's often where the tribunal ends up if people repeatedly keep failing to comply with orders. Whether the tribunal would be able to process that right now given Covid-19 I'm not sure.

sheilatakeabow89

smmjh11 said:

Hi
When I represented myself and had to attend a preliminary hearing the Judge gave a clear timeline for the sequence of events. The schedule of loss, the date to exchange witness statements and also for me to receive a copy of the bundle of documents for the hearing these all had to be done by a certain date. I did request at my preliminary hearing a copy of a transcript of a meeting that was recorded. The judge asked the respondent to do this although it was not noted on the judges orders. When I asked the respondents solicitor for a copy of this they said that it was not for them to do, so I emailed the tribunal office dealing with my case who then informed the judge he then sent out an order for the respondent to make a copy of the transcript and they complied with the order. 

I would suggest that you email the tribunal office dealing with your case and clearly identify what orders the respondent has failed to do as requested by the judges orders. Whenever I sent the respondent a request for any documents I always copied in the tribunal as well.
Just for information I represented myself and came up against a Barrister and was still successful in my claim so it can be done. The documentation for me was crucial in winning my case and I caught out the managers when I cross examined them. Don't be bullied by any threats of the respondent before the hearing trying to claim costs if you are unsuccessful as this is very rare and they only award if the claim has no real merit and was vexatious. The judge could request a deposit order at the preliminary hearing if he believes that a specific allegation has little reasonable prospect of success which never happened at my preliminary hearing.

They already requested I pay a deposit and it was declined by the judge. 

I’m happy for you that you succeeded and thank you for your reply! X

sheilatakeabow89

smmjh11 said:

Hi
When I represented myself and had to attend a preliminary hearing the Judge gave a clear timeline for the sequence of events. The schedule of loss, the date to exchange witness statements and also for me to receive a copy of the bundle of documents for the hearing these all had to be done by a certain date. I did request at my preliminary hearing a copy of a transcript of a meeting that was recorded. The judge asked the respondent to do this although it was not noted on the judges orders. When I asked the respondents solicitor for a copy of this they said that it was not for them to do, so I emailed the tribunal office dealing with my case who then informed the judge he then sent out an order for the respondent to make a copy of the transcript and they complied with the order. 

I would suggest that you email the tribunal office dealing with your case and clearly identify what orders the respondent has failed to do as requested by the judges orders. Whenever I sent the respondent a request for any documents I always copied in the tribunal as well.
Just for information I represented myself and came up against a Barrister and was still successful in my claim so it can be done. The documentation for me was crucial in winning my case and I caught out the managers when I cross examined them. Don't be bullied by any threats of the respondent before the hearing trying to claim costs if you are unsuccessful as this is very rare and they only award if the claim has no real merit and was vexatious. The judge could request a deposit order at the preliminary hearing if he believes that a specific allegation has little reasonable prospect of success which never happened at my preliminary hearing.

They already requested I pay a deposit and it was declined by the judge. 

I’m happy for you that you succeeded and thank you for your reply! X

sheilatakeabow89

steampowered said:

You could seek an "unless order" specifying that the employer's defence is struck out unless they comply with the order.

That's often where the tribunal ends up if people repeatedly keep failing to comply with orders. Whether the tribunal would be able to process that right now given Covid-19 I'm not sure.

I was worried that the Covid was the reason they didn’t respond but this goes back to before we were all to stay at home and their defence lawyer is in house so I assume would just work from home. I’m purely guessing, there could be sickness or something else going on but we’re on 8 weeks of hearing nothing. I met the solicitor and he’s a really nice man, just doing his job. I can’t see him internationally being difficult but then I am green as grass 😂

I’ve got some advice from a friend who works for CAB and they’ll help me draft a letter to the TO in a week if I don’t hear anything back to my request for documents.