Any advice for employment tribunals?

[Loupylou]

cant add anything to the much more experienced people on here but.

did the employer follow their own procedures properly in any disciplinary action that resulted in your dismissal?

if not then they are not in a good position at all

We don't know if the claim is re dismissal - could be a number of other things.

Also there's been recent case law that states that even if the employer didn't follow either their own or the statutory disc procedure, if they can show that if they had followed it, they would have sacked you anyway, then that makes the dismissal fair.

There's also the law re contributory fault i.e did the employee do anything to contribute to their dimissal?
So the ET might find that you were unfairly dismissed but then reduce your compensation by as much as 100 %.

 

[cesare]

We don't know if the claim is re dismissal - could be a number of other things.

Also there's been recent case law that states that even if the employer didn't follow either their own or the statutory disc procedure, if they can show that if they had followed it, they would have sacked you anyway, then that makes the dismissal fair.

There's also the law re contributory fault i.e did the employee do anything to contribute to their dimissal?
So the ET might find that you were unfairly dismissed but then reduce your compensation by as much as 100 %.

What case law's that then?

 

[Pingu]

We don't know if the claim is re dismissal - could be a number of other things.

Also there's been recent case law that states that even if the employer didn't follow either their own or the statutory disc procedure, if they can show that if they had followed it, they would have sacked you anyway, then that makes the dismissal fair.

There's also the law re contributory fault i.e did the employee do anything to contribute to their dimissal?
So the ET might find that you were unfairly dismissed but then reduce your compensation by as much as 100 %.

should cut down on the number of "automatically unfair" rulings then .. which is probabky a good thing tbh if the employee actually did deserve to go but was bringing the case knowing procedures hadnt been followed so would automatically get a ruling in their favour.

not saying procedures shouldnt be follwed - they are there to protect both parties - but one slip up and "automatically unfair" to me always seemed a bit iffy

 

[cesare]

That's not the case though, Pingu. That's why I asked for the case law reference.

 

[hektik]

i represented by girlfriend's brother in his case - we were both really nervous before the tribunal, but once we got in there they kind of dissipated to a kind of adrenaline tension.

the other side had lawyers naturally, but the tribunal seemed to take this into account, and gave me a lot of leeway when i was asking questions etc.

obviously, i did a lot of coaching with him: we were livign together at the time, so we spent every night for two weeks thinking about the case, and preparing what questions we were going to ask. the top tips i can give you are:

* never admit that your statement might be misremembered: whenever they say "could you be wrong about this..." just say "no" or "that is how i remember it"

* never embellish facts, or try and think of reasons. if you dont know something: just say "i don't know" we drummed this into him, and it was one of the things that the tribunal chief picked up - saying that he came across as being honest in his answers.

this was in contrast with their witnesses, who tried to explain things, embeelish things, make themselves look better, which were then skewered by being easy to pick holes in (even for a novice like me - the tribunal chief had a field day with some of them).

we won £4000! hopefully you will have the same luck.

 

[poster342002]

Also there's been recent case law that states that even if the employer didn't follow either their own or the statutory disc procedure, if they can show that if they had followed it, they would have sacked you anyway, then that makes the dismissal fair.

Given that the outcome of most disciplinary proceedures is often a foregone conclusion and mere formality anyway (IE, the abusive employer has made up their mind to sack the person nomatter what), this sounds like a very convenient way to rule in favour of the employer and, perversly, argue that this is entirely reasonable.

 

[Paulie Tandoori]

Given that the outcome of most disciplinary proceedures is often a foregone conclusion and mere formality anyway (IE, the abusive employer has made up their mind to sack the person nomatter what), this sounds like a very convenient way to rule in favour of the employer and, perversly, argue that this is entirely reasonable.

You're not suggesting that recent changes to employment law and dispute resolution have been amended such that sneaky employers are able to circumvent the labour market protections supposedly available to workers in the UK (except of course for 'temporary' staff, agency staff and all the others who aren't covered anyway)? Why that's outrageous, why isn't this in the papers? Oh yes, i remember now, Murdoch and his chums were pretty instrumental in bringing about the initial undermining of such protections as well as being responsible for what the workers read about in their daily news paper. Much easier to bang on about the threat posed by immigrant workers who, strangely again, are denied basic protections, at least initially. Some sort of patten emerging here?

[/derail]

 

[AnIdiot]

wow thanks everyone - that's a lot of stuff - all which is useful - although my brain is now exploding & i'm also worried about trying to remember everything at once!

um my case is constructive dismissal but there are also elements of discrimination (basically they did not deal with things which made it impossible for me to carry on there) it's SO complicated

i've been really careful not to embellish ANYTHING (although obviously that is one of their lines of attack) & it all happened over 2 years ago (god the lawyers have REALLY dragged this one out!) so my memories of some things are a little sketchy, but i have decided that if I can't remember something exactly i will say so. everything in my statement i can though.. their statements are full of lies & they have cast doubt on me & my integrity already & said that i am a compulsive liar & my old boss said that she wondered how so many bad things could happen to one person (during my time their my family had an article written about them in a tabloid newspaper (which the pcc ruled was wrong & they had to print a retraction but in the mean time my families home was attacked & my old boss said how did that happen - they didn't even have their home address published - but that is irrelevent) i also had a fight with a dodgy minicab driver that left me very stressed & they have said that that was not true (even though the cops have a record of it) & that I have a history of making allegations due to this (again, bollocks). they sent a copy of the person that was the main reason i left's letter that he got when he finally got fired for the same kind of behaviour that they are denying - and they had crossed out all of the stuff that was irrelevant, but they hadn't crossed it out enough & i managed to read it & they have basically crossed everything that WAS relevant to me but I don't know if that is admissible if they have crossed it out?).

yikes - sorry just realised i'm rambling.. can't sleep properly or eat properly now so obviously it's making me a bit stressy !

have managed to find friends to come to all the days except tuesday now & my solicitor told me we will only have four days now (tue - fri) now so i do feel better

all the advice on here really is invaluable, it's funny how you sweat the little things sometimes!

 

[AnIdiot]

We don't know if the claim is re dismissal - could be a number of other things.

Also there's been recent case law that states that even if the employer didn't follow either their own or the statutory disc procedure, if they can show that if they had followed it, they would have sacked you anyway, then that makes the dismissal fair.

There's also the law re contributory fault i.e did the employee do anything to contribute to their dimissal?
So the ET might find that you were unfairly dismissed but then reduce your compensation by as much as 100 %.

it was constructive dismissal but i did admit to sending one item through the internal post which they have said in one of their documents that they would have fired me for (probably for this reason). In spite of the other person being on 'repeated final warning' for behaviour which was aggressive & abusive from even before i started

 

[AnIdiot]

cant add anything to the much more experienced people on here but.

did the employer follow their own procedures properly in any disciplinary action that resulted in your dismissal?

if not then they are not in a good position at all

yes & no

they did EVENTUALLY when I made them but then they tried to hear the appeal in my absence & the person conducting the grievence was a person i had complained about for not dealing with the issues in the first place (so was very much against me)

 

[Paulie Tandoori]

its not a little thing though is it, that's why you're feeling a bit stressed out. but it is clear that you will be able to give a decent account of yourself and what you say has happened with respect to your former employer. try not to panic, if you haven't already, writing down your version of events in note form for when you give evidence might help you settle your worries a bit. and try to forget about it a bit on the weekend, what will be will be. good luck with it all

 

[Loupylou]

, writing down your version of events in note form for when you give evidence might help you settle your worries a bit. and try to forget about it a bit on the weekend, what will be will be. good luck with it all

Not sure if this is what you meant, but if you have to rely on written notes when giving evidence about what happened, that's not going to look good.

I reckon most claimants are obsessed by their case and all the events leading up to the hearing, so probably things are quite fresh.


e2a:- sorry just seen asea's situation happened a while ago and she has diff remembering

 

[Loupylou]

What case law's that then?

Here's an article:

http://www.personneltoday.com/Artic...tever-the-procedure-kelly-madden-v-manor.html

It's Madden v. Manor Surgery.

 

[Loupylou]

wow thanks everyone - that's a lot of stuff - all which is useful - although my brain is now exploding & i'm also worried about trying to remember everything at once!

um my case is constructive dismissal but there are also elements of discrimination (basically they did not deal with things which made it impossible for me to carry on there) it's SO complicated

i've been really careful not to embellish ANYTHING (although obviously that is one of their lines of attack) & it all happened over 2 years ago (god the lawyers have REALLY dragged this one out!) so my memories of some things are a little sketchy, but i have decided that if I can't remember something exactly i will say so. everything in my statement i can though.. their statements are full of lies & they have cast doubt on me & my integrity already & said that i am a compulsive liar & my old boss said that she wondered how so many bad things could happen to one person (during my time their my family had an article written about them in a tabloid newspaper (which the pcc ruled was wrong & they had to print a retraction but in the mean time my families home was attacked & my old boss said how did that happen - they didn't even have their home address published - but that is irrelevent) i also had a fight with a dodgy minicab driver that left me very stressed & they have said that that was not true (even though the cops have a record of it) & that I have a history of making allegations due to this (again, bollocks). they sent a copy of the person that was the main reason i left's letter that he got when he finally got fired for the same kind of behaviour that they are denying - and they had crossed out all of the stuff that was irrelevant, but they hadn't crossed it out enough & i managed to read it & they have basically crossed everything that WAS relevant to me but I don't know if that is admissible if they have crossed it out?).

yikes - sorry just realised i'm rambling.. can't sleep properly or eat properly now so obviously it's making me a bit stressy !

have managed to find friends to come to all the days except tuesday now & my solicitor told me we will only have four days now (tue - fri) now so i do feel better

all the advice on here really is invaluable, it's funny how you sweat the little things sometimes!

Jeez, they look very shaky from where I'm standing. Dear oh dear !
I think they are going to come across like the bunch of callous maniacs that they are.

Just remember that a tribunal is a court where any relevant evidence is admissable. Your barrister will decide what s/he thinks is relevant, like I said before, dont be surprised if things that you think are unbeleivably relevant are left out, you don't have to win over every single thing. Your barrister will know how to keep it as narrow as possible - the tribunal will like that.
But a peice of paper with crossed out stuff could be admitted, no reason why not. That's why covert recordings of diciplinary and greivance hearings made by employees are admissable - it's all evidence.

In a constructive dismissal case, the claimant would ordinarily be cross-examined first. This is because the onus is on you to show that there was something the employer did to breach your contract that was so serious it meant you could no longer work there any more. If you continue working, the contract is reinstated.
The incident that breaches the contract could be at the end of a series of incidents and be 'the last straw', so it might not be as serious as a prior incident, but it has to be linked closely to it and the incidents have to be continous.
So you definitely need to be crystal clear about the incidents leading to the dismissal, & particularly the thing that lead to your leaving. (This might be a greivance not being investigated properly.) You need to be emphatic about getting over in the hearing that there was no way you could continue working when X happened. If you have any questions about this you must sort them out with your solicitor / barrister before the hearing.

 

[cesare]

Here's an article:

http://www.personneltoday.com/Artic...tever-the-procedure-kelly-madden-v-manor.html

It's Madden v. Manor Surgery.

I think you've misunderstood the authority of the case Loupylou (which is easy enough to do). Look at the last paragraph of your article:

Comment: As long as employers follow a DDP, a failure to take further procedural steps will not render the dismissal unfair if the employer proves that the failure made no difference.* However, the burden of proof is on the employer, and this should by no means be viewed as a signal that they may ignore either the Acas code of conduct, or their own internal procedures.

(my emboldening). As opposed to what you said:

Also there's been recent case law that states that even if the employer didn't follow either their own or the statutory disc procedure, if they can show that if they had followed it, they would have sacked you anyway, then that makes the dismissal fair.

I.e. the first hurdle is the statutory minimum dismissal procedure. If the employer doesn't comply, the dismissal is automatically unfair and then it goes to quantum.

The statutory dismissal procedure is being reviewed at the moment though, in the wake of the Griffin report. Poor employers having to follow what amounts to a very basic fair procedure. Grr.

*Polkey

 

[AnIdiot]

Am feeling a lot more confident now spent most of the night reading through their statements & I've picked so many holes in them! They've contradicted themselves & each other & now I'm finding that a little amusing

Probably won't have any access to the internet but will try & let you all know what happens

 

[sorearm]

just been reading this thread from the start - good luck with everything! let us know how you get on chuck

 

[poster342002]

Good luck, but don't be surprised if the bastards win anyway.

 

[cesare]

Yes, good luck tomorrow asea. Try and have a bit of a relax this evening if you can. All the best.

 

[Paulie Tandoori]

Break a leg, as they say in the theatre dahling Hope that all goes well asea, knock them for six.

 

[winterinmoscow]

how did it go?

 

[AnIdiot]

Hey!

Well, it's good news Eventually after it had started they settled. It was a pretty horrid experience but nowhere near as bad as I thought it was going to be.

The other side turned up with extra witnesses & the tribunal & barristers (they had an entire legal team turn up!). The tribunal & the barristers spoke legalese for a long long time about the implications & what nots & the other side objected to us amending my statement (which was to respond to specific things they had said in their statements which we only received a day before the tribunal) they argued some more, then they told us that they would have to postpone the tribunal until NEXT JULY as there weren't enough days to hear all of the witnesses.

I got very very upset at this. By the time they said this I was a nervous wreck! Honestly my hands were shaking & I had been unable to sleep for so long before this that I was a little zombified. Even though I was trying to keep a poker face & not make a fuss but it was clear that this was very upsetting. It had already taken 2 years & thousands of pounds to get this far.

Anyway, the tribunal told off the respondant's solicitors & barristers as they had had nearly a year to tell the tribunal how many witnesses there were supposed to be. They then ordered us outside to negotiate. (Well I waited in the claimant's waiting room then the barristers did their thing & the negotiations went on for ages.)

I refused to sign a non-disclosure agreement but have settled in part. I dropped the rest as I really can't afford to pay the lawyers & barristers anymore - I have spent around £10K already & don't have that kind of money really!

So, I have a judgement in my favour (but by consent) HURRAH!

I thought I would be over the moon & completely elated but I just wasn't as stressed as I was earlier, it's taken days for the adrenalin to wear off!

Thanks so much for all of your advice it really has all been invaluable, I had an idea of what to expect & most of it was pretty spot on! Sorry it's taken so long to let you know what happened - I had to take a few days off afterwards to recover!!!!

 

[cesare]

Good news asea - I'm glad it's all over for you and you can move on now and relax.

I'll save you my predictable rant about legal teams on both sides that let it get as far as this (racking up costs etc) then settle on the steps, as it were!

Thanks for letting us know

 

[cesare]

Heheheh - you realise that having the Judgment in your favour means that it's now entered in the Public Record which is very helpful indeed if you ever have to explain to a future employer

 

[AnIdiot]

Good news asea - I'm glad it's all over for you and you can move on now and relax.

I'll save you my predictable rant about legal teams on both sides that let it get as far as this (racking up costs etc) then settle on the steps, as it were!

Thanks for letting us know

too bloody right! I have just paid nearly £7k of costs today! Their legal team got a PROPER bollocking from the tribunal for all of this. I do think that there are no real winners in this other than the lawyers!

The system is also biased in terms of costs & so on against the claimant I think. The costs are so prohibitive. In the waiting room there were people waiting who were representing themselves. I heard a couple of the stories & admire them for having the guts & knowledge to do it themselves - that was their only option!

 

[AnIdiot]

Heheheh - you realise that having the Judgment in your favour means that it's now entered in the Public Record which is very helpful indeed if you ever have to explain to a future employer

That's why I wanted it so badly - vindication & also to prove that I was right all along (& mostly to show my Mum!)

 

[cesare]

too bloody right! I have just paid nearly £7k of costs today! Their legal team got a PROPER bollocking from the tribunal for all of this. I do think that there are no real winners in this other than the lawyers!

The system is also biased in terms of costs & so on against the claimant I think. The costs are so prohibitive. In the waiting room there were people waiting who were representing themselves. I heard a couple of the stories & admire them for having the guts & knowledge to do it themselves - that was their only option!

That's exctly what I think. I've had over 40 Tribunals in the last 5 years and only a tiny proportion of those have got as far as the final hearing. In most cases there's simply no need for it unless there's a point of principle (misplaced or otherwise) or simple intransigence.

It is possible for a Claimant to do this without cost by having no representation, but even though the Tribunal will actively help in terms of the over-riding objective, the Claimant in that case is still disadvantaged.

 

[cesare]

That's why I wanted it so badly - vindication & also to prove that I was right all along (& mostly to show my Mum!)

Good on you!

 

[Paulie Tandoori]

congrats to you, glad that you're pleased with the outcome

 

[winterinmoscow]

good for you! really happy for you