My witness not coming forward to be my comparator in my tribunal case

RayJackie

I put a claim of racial discrimination to the tribunal. One of my colleagues does not want to be my witness in my case because she is working at my ex-employer. One of my text message conversation between me and her can be used to prove I was radically discriminated. Can I still use it a !!!!!! in the hearing without disclosing her name in the court? Would she be a hostile witness in my respondent? I hear she was not happy that her name was shown in my ET1 form. I did not contact her directly as I have a union rep contacted her to discuss if she would be coming forward to help me out. 

oh_really

Did you have an assurance that your witness would appear at the hearing  against her current employer?

Not many would,  and I would have proceeded in the expectation of this very scenario.

I suspect you may have been a little naive.

bartelbe

You obviously need proper legal advice but from what I can see it depends on the relationship between you and your ex-colleague. Is your ex-colleague someone who works in management or HR? Someone in a position senior to you? From I have read in that case such communication is admissible because posts on social media and text messages by management/HR carry the same weight as official documents. Which is why modern managers are told to be careful about such things.

No I can find little information about such messages from a colleague at the same level or junior to yourself. If they are just the colleagues opinion that you have suffered racial discrimination, I am not sure how much weight they are going to carry. If the text carries details about a racist incident, that is different matter.

It appears that you can apply for an order to compel someone to be a witness but in your situation most advise against it, for precisely the reasons you outlined. It is best not to have to rely on a compelled witness.

The other issue, is whether you want to put your ex-colleague in this position. If they were texting you in confidence to give you support, they may well have expected those texts to remain private. They may not want to be a position were they have to testify against their current employer and risk their own job.

Undervalued

RayJackie said:

I put a claim of racial discrimination to the tribunal. One of my colleagues does not want to be my witness in my case because she is working at my ex-employer. One of my text message conversation between me and her can be used to prove I was radically discriminated. Can I still use it a !!!!!! in the hearing without disclosing her name in the court? Would she be a hostile witness in my respondent? I hear she was not happy that her name was shown in my ET1 form. I did not contact her directly as I have a union rep contacted her to discuss if she would be coming forward to help me out. 

It their evidence is important for your case, you may be able to get the tribunal to issue an order to compel the witness to give evidence. However, think long and hard before attempting to do that as a reluctant witness may not be helpful to you case!

RayJackie

Thank you for your reply. First of all, I don't have an assurance that my witness would appear at the hearing against her current employer in the first place. Now as she refused my uni rep being my comparator, it was clear she did not want to. 
The incident happened was that we both complained about my employer about the extra workload. She was offered to take her off having the extra workload by the senior management group, and in the meantime, the senior management group took the points of her complaint. In my case, my treatment was completely different. I got complained by the senior management group and was forced to do the extra workload via emails.  He told me that he had different treatments via a text message. I had the proof. 
My ex-colleague has the same grade as me working in the same post but in different areas. We both do not work in HR/management at all but she is a project leader or something. I truly understand she did not want to come forward as she is quite unemployable and is very cheeky as well. As she is good at politics, she got a lot of benefits from the senior management group. 
My union rep told me not to contact her. I wondered if I could still submit the text message as a piece of evidence even though he did not want to come forward. 
Sorry for the long description. 

RayJackie

I could not change my ET1 form as it was submitted. My employer would know the incident. 

Marcon

RayJackie said:

Thank you for your reply. First of all, I don't have an assurance that my witness would appear at the hearing against her current employer in the first place. Now as she refused my uni rep being my comparator, it was clear she did not want to. 
The incident happened was that we both complained about my employer about the extra workload. She was offered to take her off having the extra workload by the senior management group, and in the meantime, the senior management group took the points of her complaint. In my case, my treatment was completely different. I got complained by the senior management group and was forced to do the extra workload via emails.  He told me that he had different treatments via a text message. I had the proof. 
My ex-colleague has the same grade as me working in the same post but in different areas. We both do not work in HR/management at all but she is a project leader or something. I truly understand she did not want to come forward as she is quite unemployable and is very cheeky as well. As she is good at politics, she got a lot of benefits from the senior management group. 
My union rep told me not to contact her. I wondered if I could still submit the text message as a piece of evidence even though he did not want to come forward. 
Sorry for the long description. 

Doesn't sound anything remotely like 'proof' of any sort of discrimination, let alone racial.

RayJackie

Hey all, I am sorry about that. I looked back my text message between me and ex-colleague. My ex-colleague received an "email" from the senior management that the management group took her off from the extra workload and took her complaint on board.  According to the Tribunal procedure, I am allowed to ask my employer to provide evidence. Can I ask my employer to provide this piece of evidence without showing my text message between me and my colleague and asking my colleague to be my witness. 

Savvy_Sue

You've got advice from your union: go back to them and ask what you can do, especially whether you can ask for the email you refer to. 

What are you going to do if you ask for their email to your colleague, and they say "what email?" Plus they'll know that your colleague has said something to you, and it could have repercussions for her. 

But I can't be firm enough of this: be guided by your union! 

Marcon

RayJackie said:

Hey all, I am sorry about that. I looked back my text message between me and ex-colleague. My ex-colleague received an "email" from the senior management that the management group took her off from the extra workload and took her complaint on board.  According to the Tribunal procedure, I am allowed to ask my employer to provide evidence. Can I ask my employer to provide this piece of evidence without showing my text message between me and my colleague and asking my colleague to be my witness. 

Treating two people differently doesn't automatically prove discrimination on the grounds of race. You've described her above as 'quite unemployable and very cheeky' - maybe those are the characteristics which made management decide not to start a fight with her.

RayJackie

Hey Savvy_Sue, my ex-colleague is now a new trade union rep in my workplace.