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SERN/EHRC Conference 2015 Running the case – a practical guide to preparing a discrimination case for the Employment Tribunal Presented by Peter O’Donnell Thompsons, Solicitors Chairman, Scottish Employment Rights Network
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Initial Interview Basic info Name, address, start date, end date, job title, wages, DOB The story Let client talk – fill in blanks later Chronological Who is everyone? Hierarchy, job titles Documents What do you need and what does client have? Correspondence, minutes of meetings, contractual documents Quantification Wage slips, evidence of mitigation, benefits, new job etc
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Case Plan What type of discrimination? What evidence do you have and what do you need? Witnesses Documents Medical evidence Strengths & weaknesses Time limits
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Gathering further info From client/witnesses Medical evidence Start early Get medical records ID appropriate expert From employer May be crucial No questionnaire procedure but can still ask
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Disclosure from employer Confirmation Investigation Disclosure Tactics Don’t Write “War & Peace” Get too involved in legal basis Do Focus questions on important issues Consider what you want out of response Think tactically
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Confirmation What facts do you need confirmed? What other facts might assist? Ask employer to give their version Eg “If you don’t agree X, why not?”
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Example - dismissal Previous disciplinary record Date of disciplinary hearing Date decided to dismiss Date communicated dismissal Reason given for dismissal
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Example - recruitment Date applied for job Date of interview (if relevant) Date decided not to offer job to claimant Date decision communicated to claimant Number of vacancies
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Investigation What do you need to know from employer? What facts might help you in assessing case?
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Example - dismissal Evidence in support of reason for dismissal How other people treated in same circumstances What bearing did protected characteristic have on decision Revelant breakdown of current staff
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Example - recruitment Details of other candidates (eg qualification, experience and sex/race/age etc) Can be anonymised Selection criteria How did claimant not meet criteria? How did successful candidate meet criteria?
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Disclosure Documents Contract, handbook etc Relevant policies (eg Equal Opportunities) Minutes of meetings Other information Relevant breakdown of employee EO training provided to decision makers
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Example - dismissal Contract of employment Disciplinary procedure How many people of different characteristics dismissed in last 5 years? Equal Opportunities policy
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Example - recruitment How many people of different characteristics in relevant job? Recruitment policies EO training given to interview panel
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Quantification Do it as early as possible – estimate Need idea of value of case ACAS Early Conciliation Will be ordered by ET – get ahead Heads of compensation Actual loss Injury to feelings Physical/psychological damage Fees/expenses Compensation for other claims (eg basic award for unfair dismissal) See if other side willing to agree quantification May need to lead evidence (eg injury to feelings, mitigation)
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Lodging claim Make sure:- Grievance procedure followed ACAS EC done Time limits 3 months less one day from act of discrimination Act of discrimination is date when act decided upon by employer Use earliest possible date Act continuing over a period Individual incidents Needs to be sufficient link between individual incidents People involved, conduct concerned etc
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Pleading the case Set out story of case in chronological order Set out primary facts offering to prove Don’t plead evidence Facts from which you say ET should draw inference of discrimination Set out statutory basis of claim
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Reviewing the ET3 What has been conceded (if anything)? Factually Legally What is in dispute? Ask client for their comments
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Preparing for hearing - witnesses Is there anyone who can speak to issues in dispute? What will they say? Precognose them Don’t call witnesses for sake of it No character witnesses! Don’t call witness to speak to issue not in dispute – could contradict Do you need more than one person to speak to same matter Expert witness Is one needed? Joint expert preferred ID expert with other side Joint letter of instruction Any concessions to be made once report received
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Preparing for hearing – Documents What documents do you need & not have Request from other side – seek order from ET Need to be specific No fishing expeditions ET may order disclosure of all documents by each side – English style disclosure Joint bundle Usually prepared by respondent
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Preparing for hearing – Further Information Do you know what employer’s defence is? Entitled to know case you have to meet Is there other information you need? Confirmation & Investigation More restrictive than pre-action Needs to be relevant to pled case
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Tribunal process Preliminary Hearing Agenda Needs to be completed Preliminary Hearing (Case Management) ID any jurisdictional issues Time limits, disability etc Some issues could only be dealt with at Full Hearing Confirm statutory basis of claim Length of hearing ID number of witnesses Always over-estimate Dates for hearing Come with available dates Timetable for preparation Exchange of documents Joint bundle Use of witness statements Any Orders needed
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