ET case: Employer has not released all documents in disclosure.. what to do? HELP!

SChitmehard

Hi,

Friend has a case heading to ET and is in the disclosure part of the case.

As part of that there has to be disclosure of documents by the employer. The employers (via solicitors) have released very little information, it's just basically the personnel file of this individual and a handful of emails between him and his managers. So basically nothing.

Some of the things he complains about are:-
(1) being paid below workers of a different gender/race,
(2) differences in the amount of workload favouring workers of a different race/gander and
(3) being given a bad reference for a new job compared to people of different race/gender.

So for disclosure it would be expected that in response to the above the employers solicitor would KNOW that the employer has to release:-

(1) pay details for members of staff of different race/gender
(2) work rosters of different race/gender
(3) references this manager completed for other staff of different race/gender

But all he has been sent is his personnel file and a few emails he sent his managers. Surely this is not adequate disclosure!? The trial date is set for in 10 weeks and it looks like the employer has not disclosed information to hamstring my friend and not give him any information that could help him. 

Can he ask employer for specific information to release and how to do it? Via court or write to employer direct?

Can he get the trial date delayed so he has time to process the above information?

Any other advice you guys can give?

pinkshoes

SChitmehard said:

Some of the things he complains about are:-
(1) being paid below workers of a different gender/race,
(2) differences in the amount of workload favouring workers of a different race/gander and
(3) being given a bad reference for a new job compared to people of different race/gender.

Surely the evidence for these is your friends own evidence to be able to make such a claim in the first place?

E.g. how do they know they're being paid less? And how on earth do they know what other peoples job references say?!?!?!

Point 2 and the workload - surely they have their own photo or screenshot of everyone's rota to make this claim?

Regarding point 1 - a company can pay what they like and it's up to the individual to negotiate. I was paid less than the male engineers in one job but that's my fault for not negotiating as well, not because I was female. 

lincroft1710

It is a "Hearing" rather than a "Trial".


If your friend is making claims of "unfair" treatment then it is for them to provide the evidence that supports their claim, not expect the other side to provide this evidence.

Marcon

SChitmehard said:

Hi,

Friend has a case heading to ET and is in the disclosure part of the case.

As part of that there has to be disclosure of documents by the employer. The employers (via solicitors) have released very little information, it's just basically the personnel file of this individual and a handful of emails between him and his managers. So basically nothing.

Some of the things he complains about are:-
(1) being paid below workers of a different gender/race,
(2) differences in the amount of workload favouring workers of a different race/gander and
(3) being given a bad reference for a new job compared to people of different race/gender.

So for disclosure it would be expected that in response to the above the employers solicitor would KNOW that the employer has to release:-

(1) pay details for members of staff of different race/gender
(2) work rosters of different race/gender
(3) references this manager completed for other staff of different race/gender

But all he has been sent is his personnel file and a few emails he sent his managers. Surely this is not adequate disclosure!? The trial date is set for in 10 weeks and it looks like the employer has not disclosed information to hamstring my friend and not give him any information that could help him. 

Can he ask employer for specific information to release and how to do it? Via court or write to employer direct?

Can he get the trial date delayed so he has time to process the above information?

Any other advice you guys can give?

I think you'll find that what the employer's solicitors know is that disclosure isn't a fishing expedition to see what the employer is willing to revea!

Possibly best to refer your friend to ACAS, who can give general advice (and presumably have already been involved) on process etc.

SChitmehard

pinkshoes said:

SChitmehard said:

Some of the things he complains about are:-
(1) being paid below workers of a different gender/race,
(2) differences in the amount of workload favouring workers of a different race/gander and
(3) being given a bad reference for a new job compared to people of different race/gender.

Surely the evidence for these is your friends own evidence to be able to make such a claim in the first place?

E.g. how do they know they're being paid less? And how on earth do they know what other peoples job references say?!?!?!

Point 2 and the workload - surely they have their own photo or screenshot of everyone's rota to make this claim?

Regarding point 1 - a company can pay what they like and it's up to the individual to negotiate. I was paid less than the male engineers in one job but that's my fault for not negotiating as well, not because I was female. 

Paid less: information came from conversations with staff members. How would my friend get their payslips from colleagues to prove this - I wouldn't give someone my payslip! But it's very easy for the employer to provide information as to what they pay male/female for the same job (and yes I get it's also about negotiation) to win on this point so why not just do it (and redact the names).

References: Friend thinks manager gave him a crap reference compared to others of a different gander/race on purpose. Again the employer can disprove this easily in the same way. Get the past 1/2/3 references that manager has given and disprove this point.

Workload: Employer has an electronic system so can easily do a data dump of the rosters going back 1-2 years to disprove my friends case, so why not just copy the work rosters on a flash drive and send them across?

This is what the whole disclosure process is meant to be about I thought. That the employer is meant to release information that supports or refutes the case of my friend and hence if they provide this information at an early stage and then the case can be discontinued if necessary.

But the employer has not provided any information, just printed out my friends personnel record and a couple of emails between him and his manager about workload. 

If anyone has been through this process and can shed a bit of light on the questions :

Can he ask employer for specific information to release and how to do it? Via court or write to employer direct?

Can he get the trial date delayed so he has time to process the above information?

Any other advice you guys can give?

Brie

I would have thought that if a SAR was submitted then the employer would have had to release everything about the individual - not just a personnel file and a small selection of emails.  It would need to be every single document the company has where he is mentioned.  This could very well include any emails back and forth discussing shifts, work policy, 1 - 1s, any email he has ever sent and any email ever sent to him. 

It would not include anything where someone says "let's pay all blokes who are this colour or from country X 10% less" as that's not specific to him, even if it is illegal.  It would include a list of everyone in the department and their agreed payrises/bonuses/shifts but with everyone else's name removed - so possibly not much actual help.  

TELLIT01

I will only comment on the reference.  There is no practical way to compare references as they are specific to the individual.  The 'friend' will have great difficulty providing evidence of the performance of others who worked for the organisation and proving that their reference did not accurately reflect that.

Marcon

SChitmehard said:

pinkshoes said:

SChitmehard said:

Some of the things he complains about are:-
(1) being paid below workers of a different gender/race,
(2) differences in the amount of workload favouring workers of a different race/gander and
(3) being given a bad reference for a new job compared to people of different race/gender.

Surely the evidence for these is your friends own evidence to be able to make such a claim in the first place?

E.g. how do they know they're being paid less? And how on earth do they know what other peoples job references say?!?!?!

Point 2 and the workload - surely they have their own photo or screenshot of everyone's rota to make this claim?

Regarding point 1 - a company can pay what they like and it's up to the individual to negotiate. I was paid less than the male engineers in one job but that's my fault for not negotiating as well, not because I was female. 

Paid less: information came from conversations with staff members. How would my friend get their payslips from colleagues to prove this - I wouldn't give someone my payslip! But it's very easy for the employer to provide information as to what they pay male/female for the same job (and yes I get it's also about negotiation) to win on this point so why not just do it (and redact the names).

References: Friend thinks manager gave him a crap reference compared to others of a different gander/race on purpose. Again the employer can disprove this easily in the same way. Get the past 1/2/3 references that manager has given and disprove this point.

Workload: Employer has an electronic system so can easily do a data dump of the rosters going back 1-2 years to disprove my friends case, so why not just copy the work rosters on a flash drive and send them across?

This is what the whole disclosure process is meant to be about I thought. That the employer is meant to release information that supports or refutes the case of my friend and hence if they provide this information at an early stage and then the case can be discontinued if necessary.

But the employer has not provided any information, just printed out my friends personnel record and a couple of emails between him and his manager about workload. 

If anyone has been through this process and can shed a bit of light on the questions :

Can he ask employer for specific information to release and how to do it? Via court or write to employer direct?

Can he get the trial date delayed so he has time to process the above information?

Any other advice you guys can give?

Yes - what my previous post suggested: that your friend gets advice from someone who understands the process. Nothing you have said suggests they have  compelling evidence (or indeed any sort of evidence - just comments from fellow employees, which may or may not have been made to wind him up) to support these wide and frankly rather wild allegations, and no sane employer will reveal shedloads of commercially sensitive information unless there is a case to answer.

MalMonroe

SChitmehard said:

Hi,

Friend has a case heading to ET and is in the disclosure part of the case.

As part of that there has to be disclosure of documents by the employer. The employers (via solicitors) have released very little information, it's just basically the personnel file of this individual and a handful of emails between him and his managers. So basically nothing.

Some of the things he complains about are:-
(1) being paid below workers of a different gender/race,
(2) differences in the amount of workload favouring workers of a different race/gander and
(3) being given a bad reference for a new job compared to people of different race/gender.

So for disclosure it would be expected that in response to the above the employers solicitor would KNOW that the employer has to release:-

(1) pay details for members of staff of different race/gender
(2) work rosters of different race/gender
(3) references this manager completed for other staff of different race/gender

But all he has been sent is his personnel file and a few emails he sent his managers. Surely this is not adequate disclosure!? The trial date is set for in 10 weeks and it looks like the employer has not disclosed information to hamstring my friend and not give him any information that could help him. 

Can he ask employer for specific information to release and how to do it? Via court or write to employer direct?

Can he get the trial date delayed so he has time to process the above information?

Any other advice you guys can give?

Hi, I have been through two Tribunals and can advise that it is NOT your friend's responsibility to ensure that the employer has disclosed the relevant documents.

All your friend has to do is prepare his own case as best he can, If he needs to refer to the employer's documents but is unable to do so, then he has to say that on hearing day, if it gets that far.

As Marcon, above, has suggested twice, your friend needs some guidance from acas.

I used acas both times for my tribunals and although they cannot give any legal advice, they CAN advise about the things your friend needs to know. 

https://www.acas.org.uk/contact

They really can help. If a date for the hearing (not a trial, as lincroft1710 has said) has been set, then the court will have all the details. It's up to the employer now to get cracking. If they don't, then things are going to look bad for them, which is better for your friend. Your friend needs to do everything he can to prepare for the hearing. The employer also has to do that. Whether the employer does it correctly or not is nothing to do with your friend, if he has prepared his own case as much as he can.

He should not try to get the hearing date delayed, there's no point.

ACAS. That is the next step. He'll be allocated a personal adviser who knows exactly what they're talking about. I speak from personal experience - and both my tribunals were actually settled in my favour before we even got to any hearing. I DID work hard on preparing a case in both instances though and acas could not have been more helpful. I could not afford legal representation but they were the next best thing. 

theoretica

If they didn't like your friend as an employee wouldn't they want them to get another job and go away?  So seems little point in a needlessly poor reference.

If the company has more than 250 employees they need to publish their gender pay gap.  Is the employer this large?

Brie

theoretica said:

If they didn't like your friend as an employee wouldn't they want them to get another job and go away?  So seems little point in a needlessly poor reference.

If the company has more than 250 employees they need to publish their gender pay gap.  Is the employer this large?

And most references these days simply confirm that a person actually worked at X Corp.  Not that they were employee of the month or not.  Or whether they were liked or disliked.

re the gender pay gap - I know I'm likely to be corrected by 1 bit of information but in general the pay gap is in favour of men, not women potentially even in roles that are more traditionally considered "women's jobs" (nursing etc).  So unlikely it's true that he's been paid less because of his gender.  (yes - sweeping statement...)   Whether the same can be said of the individual's race will depend on what race/nationality he is.