Wednesday 18th April 2012 at 6:00am
[I was sent this by a reader whose hearing took place earlier this year, and who has asked for his story to remain anonymous. What interests me is its typicality: it reflects the sentiment of a minority of claimants, albeit a large minority, who leave the Tribunal convinced that they were not allowed a fair hearing. Often, unsuccessful claimants will complain that the Judge was biased; this is not the approach of my book, which argues rather that there are long-term dynamics - assymetries of the law, and of the common law tradition - which limit the scope for judges and "nudge" Judges towards certain sorts of decision. I have published this account, though, because it is the sort of story that far too many claimants could tell]
My tribunal claim was for unfair dismissal and payment of notice pay. The respondent was a large government department, for whom I worked as a very junior administrator. I brought my claim in early May 2010, and it was not heard until late February this year. I could say a lot about the process leading up to the hearing, but I will confine myself to three typical happenings. In my ET1 I had outlined, fairly clearly, a couple of possible claims for statutory discrimination. At the CMD I offered to provide further and better particulars. The Employment Judge dealt with this by simply saying that the claims were not in the ET1. When I protested, he said ‘I think you’re just trying to inflate your claim’.
In mid-June 2011, the Tribunal informed the parties that a full-merits hearing had been listed to start in late October 2011. Ten weeks later, at the end of August 2011, the respondent applied for a postponement of the hearing. The grounds were that one of the respondent’s witnesses had booked annual leave for the week of the hearing, and that this leave had been booked in April, before the notice of hearing had been received. I objected to postponement: no holiday had been booked and paid for; the leave could be rearranged; the respondent had delayed making the application, and there was no explanation for the delay. The Tribunal granted the application, without giving reasons for its decision. I wrote requesting a review of the decision, taking into account my objections, and I asked for reasons for the decision. The Tribunal responded that under the Rules of Procedure the decision was not capable of being reviewed, and the tribunal was not obliged to give reasons for its decision. I did try an urgent appeal to the EAT: the decision was perverse; the witness was not unavailable. My appeal was dismissed on the sift.
Having got the hearing postponed until late February 2012, the respondent applied to amend its ET3, submitted 16 months previously. The amendment was granted at a PHR in early January of this year. The PHR judgment did not address my objections. At the full- merits hearing in February, the respondent’s representative cheerfully voiced his opinion that the application to amend had been misconceived. He himself had made the application at the PHR. His reasons for withdrawing the amendment matched word-for-word my objection to the amendment’s being granted in the first place.
I represented myself at the full-merits hearing in February this year. On a number of occasions, I asked questions of the respondent’s witnesses, which they had difficulty in answering. On each occasion, the employment judge intervened to ask the witness a leading question, which effectively answered for them.
An important part of my case, clearly pleaded in detail in my ET1, was that the procedures followed by the respondent had been persistently and grossly unfair. This was almost completely ignored by the tribunal. At one point the judge said ‘Oh, that’s the ACAS Statutory Code; we’re not interested in that’. I found out later that the judge had not read my ET1.
In giving oral reasons, the judge referred to two arguments advanced by me. He said I had provided no evidence to support these arguments. In both cases I had spent time in cross – examination, taking the respondent’s witnesses through documents supporting my arguments. In at least one case, the documentary evidence is clear, comprehensive, and, I think, irrefutable.
It won’t by now come as any surprise to you that I lost. I now have the tribunal’s written judgment and reasons. It is only a slight exaggeration to say that this judgment ignores all the documentary and witness evidence in my favour. The judgment mainly relied on the witness evidence of the dismissal officer, much of which is at variance with the contemporary documentary evidence. The tribunal said that the cause of my dismissal was a failure to comply with a reasonable management instruction. The respondent’s own dismissal letter said that the alleged failure to comply would have warranted a warning. The respondent seems to have dismissed me principally because of an unparticularised ‘irretrievable breakdown in the relationship between us as an employer and you as our employee’.
The judgment also joined with the respondent in placing great emphasis on my leaving a disciplinary hearing before the respondent wanted me to leave. Contemporary documents show that the respondent was not at all bothered by this at the time, but the respondent made a big thing about it at the hearing. My evidence that I would not stay to answer an unparticularised charge, and that the respondent was trying to put words into my mouth, well, that was ignored. The tribunal decided that my leaving was evidence of guilt, though the respondent never claimed that, and the tribunal never explained its reasoning.
No tribunal could have treated any respondent better than this one.
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Monday 16th April 2012 at 5:40am
[Susan Archibald was the claimant in Archibald v Fife Council, a case which transformed UK disability law.]
In April 1999, you became disabled; how long was it before you realised you would not work as a roadsweeper again?
As soon as it happened. The doctor kept saying it would get better as it was nerve damage, which can take up to 18 months to heal. I believed that it would but there was no improvement. I really believed every day I woke up that I would be better
What was it like living using a wheelchair?
In a lot of ways it was difficult as people don’t talk to you. You see them crossing the road to avoid you or they speak to the person you are with like you’re not there. I describe it as a bit like death, as when someone dies some people can cross the road and say “how are you” but others can’t, so they cross the road and keep going. People seem to think when you are in a wheelchair you must have lost the ability to communicate. It’s soul destroying, especially if you are a sociable person like me.
I understand that you were told to apply for over 100 jobs which your employer without being interviewed once; how did that make you feel?
I was not told to apply I did everything myself, but I just felt they were putting barriers up. They did take me to a school, not for an interview, just for a look. Imagine me, sitting in a small office in my wheelchair and answering phones, taking messages and putting them in pigeon holes for teachers at the top of the stairs. It was an easy-enough job, anyone could have done it, but there was no lift – remember I am in a wheelchair. I did suggest the pigeon holes could have been moved downstairs but they got quite angry at that suggestion and said no way.
I applied for clerical work but then my redeployment officer asked me to apply for a leisure attendant’s job; I couldn’t clear a hall and set up table tennis tables and goal posts for football. They were really at it to find every barrier for me.
Anyway day before they terminated my employment I was call at 9am and asked to attend an interview in Carnegie leisure centre for the leisure attendant’s post. I got ready and went but on arriving and introducing myself to the lady she asked why had I not applied for a clerical post as I had more qualifications than any of her staff?
I told her that was the work I was applying for but never met the criteria for interview. She found that very strange.
I was really depressed and at one point sat with a cocktail of my tablets and a glass of water as I just felt such a failure could not work so lost my wages. I felt I was letting my family down, I’d lost all my confidence. I felt they had stripped it away. And then my baby started to cry. I changed that night; something just made me say no, I have had enough, I just have to get on with it, so I did
Did the union support your case?
Yes, to be fair, I had a really good local rep she was amazing but once they terminated my employment I got a regional officer he was a really nice man but he never knew very much and it was just like he was bringing me the papers and paperwork to go over because he really did not know what he was doing. I googled employment laws on the internet and was reading up on stuff and found the DDA [Disability Discrimination Act], that was amazing. The appeal with the council was a waste of time. It lasted 5 minutes and they never even asked a question.
When I lost that, I went back to computer looking up similar cases, looking at the DDA and how I felt I had been discriminated against. It was actually different to what he was saying but I insisted I wanted it the way I said it.
Did the courts do anything to physically accommodate you, as a disabled claimant?
My Tribunal was in a court in Dundee no lifts no toilets upstairs anything. It was a nightmare but I crawled up spiral staircase every day as I was willing to climb a mountain to take Fife Council to task.
The House of Lords have one lift I so was ok there.
[Since her case Susan has become a fdisability activist. She blogs for the Sunday Mail and has stood as an independent in national and local elections. She has been a member of Scotland's Justice Disability Steering Group which attempts to ensure the widest possible access to courts and tribunals in Scotland; and she is in the process of setting up a Susan Archibald Foundation]
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Wednesday 21st March 2012 at 7:45am
[I'm interested in how the increasing legalisation of employment disputes tends to change the content of the work done by trade union representatives. “Mark”, interviewed below, is a GMB rep in a white-collar workplace in central London.]
Tell me about your workplace
There are 550 workers; around 300 are members of the GMB. The union has five representatives; I am the Branch Secretary and Convenor. All our reps do casework. I advise members regularly in informal queries; and I represent in about 5-6 formal cases (disciplinary, grievance, capability, etc) a year.
How long do you spend on casework every year?
When a case is active it can take several hours a week, informal advice is in addition to this. Altogether, I suppose casework takes up about 100-150 hours a year.
What training did you have before you started doing casework? What support can you draw on?
Before I started doing casework, I received training from the GMB region. When I do cases, I always consult LRD publications, always the latest copy. We discuss casework on the branch committee; we couldn’t discuss individual cases unless they affected more than worker.
What is the relationship between union reps and officials when doing casework?
I am the members’ main point of contact in the early stages of their case. Depending on time limits, the case would be raised with a full time official (FTO) when it reaches (say) the dismissal stage and the member is seeking legal view for a tribunal. If time limits are more pressing it will be passed to a FTO earlier
The fact that a case has been passed to a FTO doesn’t mean that we cease to be involved. The FTO is often willing to let the case drop; reps are always pushing for them to take it further and so closely involved
It’s the same when the case is passed to a solicitor. It does mean we are not involved in some of the detail. But we remain involved, especially if the solicitor tries to withdraw the union’s support for the member. The GMB only takes cases with more than 60% chance of success, so there are often disputes as to whether a member should still be getting support.
Do you know what the time limit is for bringing a Tribunal claim? As far as you know, are there any exceptions to this time limit?
3 months less one day, there can be exceptions in certain circumstances, but I can’t recall what they are
Tell me about the most rewarding case you’ve done
It was about outsourcing and potential redundancy of staff. This was proposed by management and in the following consultation period we conducted a petition of all staff to keep it in house and presented a counter proposal to keep it open with the loss of one person who wanted redundancy anyway. This was accepted by management.
Tell me about the most difficult case you’ve done
The most difficult case I’ve ever done was a dismissal for poor performance, which was taken through the employer’s capability procedure. It was the first time the procedure we’d negotiated had been used, it was meant to be an alternative to reducing people’s pay, as previously poor performers had reduced, or no, pay rise. The ultimate sanction was dismissal, so for it to reach this stage in its first use was hugely disappointing.
The case itself was in our view poor performance due to stress related illness, but the employer did little to acknowledge this and in my view the manager just wanted the member out. Reasonable adjustments were turned down and the slightest error was viewed as failure, even though they acknowledged his performance had improved.
In some ways the member didn’t help his case much by saying inappropriate things at meetings, not offensive, just unhelpful things.
The officer attended the final appeal against dismissal and although presented a good case the employer dismissed anyway. The officer privately said he had concerns about this member appearing at a tribunal and I think that paved the way for not getting a legal view
[If any other trade unionists reading this would like to be interviewed for this blog, please email me at david[at]dkrenton.co.uk]
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