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Preliminary Hearing - Evidence strike out request

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Username094
Username094 Community member Posts: 4 Listener
edited November 2022 in Work and employment
Hi All 

I have a disability discrimination hearing next week and wanted to check if I can ask the judge to strike out/dismiss part of the respondents (employer) evidence?

Background : 

I was dismissed at a welfare meeting as my employer felt I was not coping very well with my mental health, they claim additionally claim they were unable to accommodate psychiatrist appointments and I would be better off leaving work even though I had no poor work record or concerns raised. This was the first and only time the employer spoke to me about my mental health.

I subsequently responded in a letter claiming that I was dismissed unlawfully on disability grounds and the respondent responded claiming I was dismissed on gross misconduct. This was their response even though I wasn't advised of this at the welfare meeting and was not placed in an investigation whilst employed.

Several months later I've been advised in the respondents case management document there's "5 witnesses" to an alleged verbal confrontation leading to the gross misconduct incident that never took place.

Leading to my question , can I ask the judge to strike out any witness statements as this was not presented to me at any stage whilst employed or post termination and was not mentioned in the employer initial response letter after they carried out an internal investigation and made no mention of witnesses. 

Im frustrated by the employers actions because I can see what they are trying to do in covering their actions by claiming I was terminated through gross misconduct.

If it helps someone to advise further - I notified the employer of my disabilities on a new starter questionnaire, have not had any in work warnings or disciplinaries and the respondent has admitted the meeting was called a "welfare meeting".

Regards
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Comments

  • Tori_Scope
    Tori_Scope Scope Posts: 12,506 Disability Gamechanger
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    Welcome to the community @Username094 :) Thank you for joining us, and for telling us about your situation. 

    I'm not an expert in this area unfortunately, and I wouldn't be able to give legal advice as such. 

    Are you receiving support from an expert representative to help you with your hearing? 

    I'll also tag one of our members, @janer1967, in here in case she has any insight to share (no pressure!). 

    I can imagine this is all quite distressing, especially as you've already been facing some mental ill health. Are you receiving enough support to help you get through this difficult time? You've mentioned having a psychiatrist- do you find them helpful? 
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  • janer1967
    janer1967 Community member Posts: 21,964 Disability Gamechanger
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    Hi there 

    You can ask for the witness statements to be discounted on basis that you should have had sight of them during the disciplinary investigation which obviously didn't take place 

    If it was a disciplinary hearing rather than welfare meeting you should have been informed in writing of the meeting and your right to representation at the meeting.  The letter should also state the reason for the meeting eg gross misconduct and what the alleged offence was 
    Also should state it could result in action being taken which could result in dismissal 

    I presume this incident wasn't discussed at the welfare meeting 

    They should also have taken notes at the meeting and provided you with a copy to read before signing to say it was true reflection of what was said at the meeting 

    From the info you have given you should have strong case I would expect they know this and make an out of court offer just at the last minute 

    Good luck let us know how you go 
  • Tori_Scope
    Tori_Scope Scope Posts: 12,506 Disability Gamechanger
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    Thank you @janer1967 :) 
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  • Username094
    Username094 Community member Posts: 4 Listener
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    @janer1967 thanks for the reply it’s very informative! At what stage can I ask for the witness statements to be withdrawn as I’m wondering if I can write to the court tomorrow with what you’ve mentioned or will I need to wait for the main case hearing which is scheduled for next year and then raise my objections? 

    Kind regards  
  • janer1967
    janer1967 Community member Posts: 21,964 Disability Gamechanger
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    Hi 

    I'm not too familiar with tye ET process after 30 years in hr only attended a couple as spectator 

    I can't see it being a problem writing these now and submitting keep a cp0y though also employer may need copy 

    For specific ET process advice then talk to ACAS

    My experience is in HR and employment law and policies and procedures so can help in these areas 
  • janer1967
    janer1967 Community member Posts: 21,964 Disability Gamechanger
    edited October 2022
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    You can bring it all up at preliminary hearing as well 

    This may then make the employer realise you know what you are talking about and they have no valid response and best action would be to settle 
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