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

Investigation

What do you need to know from employer?

What facts might help you in assessing case?

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