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

Marcon

Brie said:

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.

Quite so. If the manager gave other employees better references, it won't magically prove unlawful discrimination. If the references were better, than maybe it's because the employees concerned deserved them for being better employees, harder workers, not having a chip on their shoulder... That could also explain any pay differential. There's nothing wrong with paying different rates for the same job, provided that it isn't done on the basis of unlawful discrimination.

Everything smacks of this being a disgruntled and failing (ex)employee looking for excuses rather than facing the possibility that they didn't do a great job. In the absence of any evidence either way, that can only be surmise - but it does need to be factored in as a consideration.

Devongardener

The employer cannot be compelled release copies of references given for other employees, even if redacted, not only for data protection reasons but different employees bring different benefits to a company and so cannot be compared.   

pinkshoes

SChitmehard said: 

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?

My advice to your friend would be to move on and find an employer that they enjoy working for more. 

A conversation about salaries is not evidence and people regularly lie about what they earn, especially if they want to wind someone up.

And a company is certainly not going to release private references as that would breach GDPR. What exactly did this reference say?

To me it just sounds like this job and your friend weren't a good fit. Sometimes it's like that. Life is too short to get so hung up over a job. Lots of other decent jobs and lovely people to work for out there, so I would honestly advise your friend to be the bigger person and move on.

Savvy_Sue

Even if they did produce the rotas, I think they could validly redact everyone else's names, so unless your friend still has copies of his own rotas, that's not going to help much. 

Gender pay gap: it COULD be worth asking if a GPG Report is generated as part of the payroll process. At one point we were seeing one, even though we don't HAVE to produce one (too small): it was just one of the standard reports the payroll software would generate. 

something oft reported on this board: it may not be fair, but that doesn't mean it's illegal. 

SChitmehard

lincroft1710 said:

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.

How would he get hold of payroll info, rotas etc without disclosure by the employer?

Marcon said:

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.

Not fishing but if the claim is about pay and it's written in the court document then surely the solicitor knows that employer should disclose (redacted) pay information to disprove this point, it's really simple. I am sure the judge would ask something similar in court as it makes sense?


The work rosters are on the computer system. They are password protected so he can't download them, so how to get them? 

He would have got MORE information as Brie says IF he had done a Subject Access Request compared to what the employer has released in the discloure process (personnel file and a handful of emails!). Why would the Solicitor of the employer who has experience release so little information knowing it could look bad for them as the judge could say it's not a good faith disclosure of documents?

Marcon said:

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.

 How would you get compelling evidence over a forum? I just saw the disclosure pack he received from employers solicitor and it's just his personnel file and a few emails. There is nothing they sent him really. I was really surprised. He would have got more info if he had done a simple FOIA/SAR to the employer. There must more than 5 emails between him and his manager and his personnel file they have on him!

Not commercially sensitive info, these are just run of the mill jobs. He quit the job over these issues so feels that there are issues for a legal court to look at but looks like employers solicitor will make it as hard as possible.

MalMonroe said:

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. 

How far did you cases get if you don't mind me asking? His case is around 10 weeks from hearing date and so is nervous that employer has not released work rotas, pay info so he can't build a case. I wouldn't be surprised if they gave him this data a week or 2 before the hearing so he is overloaded at the las minute and he can't then complain to the judge. I've told him to be aware of this.

I guess it's akin to if the police accused you of a crime but refused to hand over evidence they had. How do you defend yourself or refute their case? 

SChitmehard

TELLIT01 said:

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.

The reference, he wants other refs done by same manager so he can compare. But I agree it's difficult as it could be argued that the other people were better etc.. But if he can show pay differences, workload differences, the bad reference could be helpful if he can show that people of a certain gender/race were always given good refs in general compared to his.

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?

Yep you would have thought that they'd give him a great ref to get rid of him, but they gave him a crap one which made him want to pursue court action as it was like giving him a kick on the !!!!!! whilst he was heading out of the door! Some managers are such idiots.

Brie said:

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.  

This is what I found surprising about the disclosure. That he got LESS info than if he has put in a SAR! 

Brie said:

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.  

This place/job does personalised refs so writes about your quailities and scores you.

This is where he got given very low scores, like for example attendance, his manager wrote 6/10 score when he not had a sick day for like 5 years! So this is why he want other references done by manager so he can compare.

SChitmehard

Marcon said:

Brie said:

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.

Quite so. If the manager gave other employees better references, it won't magically prove unlawful discrimination. If the references were better, than maybe it's because the employees concerned deserved them for being better employees, harder workers, not having a chip on their shoulder... That could also explain any pay differential. There's nothing wrong with paying different rates for the same job, provided that it isn't done on the basis of unlawful discrimination.

Everything smacks of this being a disgruntled and failing (ex)employee looking for excuses rather than facing the possibility that they didn't do a great job. In the absence of any evidence either way, that can only be surmise - but it does need to be factored in as a consideration.

I guess it's about the totality of the evidence, so if he is being underpaid and he complained about this, then it's also more likely that he got  a bad reference for complaining about underpaid to mess with him. So it's building a case around all the points where he thinks he got done over.

Devongardener said:

The employer cannot be compelled release copies of references given for other employees, even if redacted, not only for data protection reasons but different employees bring different benefits to a company and so cannot be compared.   

They probably could be compelled.

pinkshoes said:

SChitmehard said: 

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?

My advice to your friend would be to move on and find an employer that they enjoy working for more. 

A conversation about salaries is not evidence and people regularly lie about what they earn, especially if they want to wind someone up.

And a company is certainly not going to release private references as that would breach GDPR. What exactly did this reference say?

To me it just sounds like this job and your friend weren't a good fit. Sometimes it's like that. Life is too short to get so hung up over a job. Lots of other decent jobs and lovely people to work for out there, so I would honestly advise your friend to be the bigger person and move on.

Not so easy to move on, especially if you know/believe you've been done over I guess. I can see he is stressed about the whole process and I questioned him about whether it's worth it - sometimes he says yes hw wants to carry on, other times wants to give up. But he can't discontinue legal action as employer may ask court to ask him to pay their fees to date. So I think he has to now proceed down the path and see where it leads.

Savvy_Sue said:

Even if they did produce the rotas, I think they could validly redact everyone else's names, so unless your friend still has copies of his own rotas, that's not going to help much. 

Gender pay gap: it COULD be worth asking if a GPG Report is generated as part of the payroll process. At one point we were seeing one, even though we don't HAVE to produce one (too small): it was just one of the standard reports the payroll software would generate. 

something oft reported on this board: it may not be fair, but that doesn't mean it's illegal. 

No confidential info on the rota to redact as everyone can/has seen them so it would be unlikely.

Anyway here is the file on disclosure that gives some info https://www.whatdotheyknow.com/request/670250/response/1626197/attach/2/GLD Guidance for Clients Disclosure.pdf?cookie_passthrough=1#:~:text=“The parties shall disclose to,document supports that party's case.”

SChitmehard

Discourse information for ET legal cases useful - some of the thread posters may want to read  reading https://www.whatdotheyknow.com/request/670250/response/1626197/attach/2/GLD Guidance for Clients Disclosure.pdf?cookie_passthrough=1#:~:text=“The parties shall disclose to,document supports that party's case.”

Disclosure should take place well before the hearing either pursuant to an Order from the Tribunal or by agreed voluntary exchange of documents with the other side.   Usually, a general Order for disclosure is issued as part of standard case management directions along the lines of: “The parties shall disclose to each other all documents in their possession, power or control which are relevant to any issue in the case, whether or not that document supports that party’s case.”

2. This means you must disclose:   a) documents you want to rely on;   b) documents which adversely affect your case i.e. including any documents which are potentially embarrassing or damaging to the department or the litigation, if they are relevant;   c) documents which adversely affect or support the Claimant’s case which are or have been under the Department’s control.   

3. ‘Document’ means anything in which information of any description is recorded.  This includes not just letters and emails but drafts, calendars, manuscript and post‐it notes, voicemails and other telephone recordings, text messages, computer disks, documents on servers and back‐up systems and documents that have been deleted and blogs.

4. Original documents must be disclosed, as must further copies that exist which have been marked/annotated in some way.    Please make sure all relevant documents are retained in their original form until the case is over.  

 5. You must disclose documents that you have or have had. If any relevant documents have existed in the past (e.g. previous versions of policies or communications a witness remembers sending but no longer has) but have been destroyed, routinely or otherwise, please tell us because we will have to disclose their past existence



I don't think the employer has done this in my friends case. Only sending him his personnel file and 5 emails between him and his manager!

Bradden

@SChitmehard ... I'm not sure the link you provided really helps.. It looks like guidance for the civil service... I'm not sure it's a legal requirement to follow the guildance.

Undervalued

Bradden said:

@SChitmehard ... I'm not sure the link you provided really helps.. It looks like guidance for the civil service... I'm not sure it's a legal requirement to follow the guildance.

Quite.

Plus, even where there is a "requirement" (rather than guidance) there is still the real world question of whether there is a practical and cost effective way of enforcing compliance. In the real world nobody is going to issues a warrant to search the employer's premises for documents and data they haven't disclosed. Paperwork and computer data gets lost, sometimes genuinely and sometimes deliberately, but unless they want to rely on it themselves in most cases there is little you can do about it.