Post on 13-Dec-2015
SERN/EHRC Conference 2015
Running the case – a practical guide to preparing a discrimination case for the Employment Tribunal
Presented byPeter O’Donnell
Thompsons, Solicitors
Chairman, Scottish Employment Rights Network
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
Case Plan
What type of discrimination? What evidence do you have and what
do you need? Witnesses Documents Medical evidence
Strengths & weaknesses Time limits
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
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
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?”
Example - dismissal
Previous disciplinary record Date of disciplinary hearing Date decided to dismiss Date communicated dismissal Reason given for dismissal
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
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
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?
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
Example - dismissal
Contract of employment Disciplinary procedure How many people of different
characteristics dismissed in last 5 years?
Equal Opportunities policy
Example - recruitment
How many people of different characteristics in relevant job?
Recruitment policies EO training given to interview panel
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)
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
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
Reviewing the ET3
What has been conceded (if anything)? Factually Legally
What is in dispute? Ask client for their comments
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
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
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
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