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Ben Jones
Ben Jones, Solicitor
Category: UK Law
Satisfied Customers: 38954
Experience:  Specialist in UK Law with expertise in UK Employment Law
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I am in employment tribunal proceedings against my current

Resolved Question:

I am in employment tribunal proceedings against my current employer for disability discrimination. I am representing myself. Prior to my grievances my employer accepted at all times that I was covered under the DDA for my disabilities and have documented such as being the case. Access to Work assessments were undertaken and numerous equipment supplied to help me in the workplace. My employer has mysteriously and suddenly lost my records and I have had to obtain them again via Access to Work.

At the CMD they are now denying that my disabilities are in fact "substantial or effect my normal day to day living as they had never actually sought out expert medical opinion for these. .
They asked me to provide them with all of my OHU medical records as well as my GP records which I mistakenly agreed to do at the CMD and where I have been advised that the Judge failed in proper case management of this issue.

I have submitted an application to revoke/vary an order to supply my medical records to the other side and instead have requested that an Independent medical expert is appointed to determine my disabilities, and that all medical records be supplied to him/her as a medical expert to assess my disabilities as coming under the DDA.

I am being refused access to view my work OHU medical file by the other side legal advisor despite it coming to my attention and prior to the CMD that my OHU records may be inaccurate.

Can you please advise if I can view my OHU medical file as I am being denied to see this and what I should do about this.

URGENT PLEASE - Thank you
Submitted: 3 years ago.
Category: UK Law
Expert:  Ben Jones replied 3 years ago.
Hello and thank you for your question, which I will gladly help with. Please let me know what you specifically would like to know about this?
Customer: replied 3 years ago.
Can they deny me in seeing my medical records at work- I had advised a few weeks ago to the medical section that i would like to view this as I belive some of the most recent records based on information of their latest report is not accurate?
Expert:  Ben Jones replied 3 years ago.
Thanks for your patience.

What grounds have they given for refusing this?
Customer: replied 3 years ago.
That this forms part of a disclosure exercise now and that I need to go directly through their legal section on this
Expert:  Ben Jones replied 3 years ago.
You would only be able to view the records in one of two ways – either through a subject access request under the Data Protection Act or through the disclosure/inspection process of the tribunal claim. If I remember correctly I gave some advice already on the inspection process so you could refer to that. Happy to clarify further if necessary
Customer: replied 3 years ago.
Hello,

Yes I have done that, but no response received, so been advised by the Data Protection Advisor, that I should inform the ET about the situation. However not reallly sure how best ot do this, under the circumstances, especially as still no response as yet on applicaton to revoke the CMD order.

Any advice much appreciated.
Expert:  Ben Jones replied 3 years ago.
You can send them the following letter first (to the other side):

Dear XXX

Please be reminded that the process of disclosure involves producing a list of documents that are in your possession or control and that are relevant to the issues between yourself and [CLAIMANT].

Inspection is the process by which the parties see the documents held by each other. This is usually done by exchange of photocopies.

To comply with your duty of disclosure you must:
• Make a reasonable search for relevant documents in your possession or under your control
• Do not destroy documents that you recover as a result of your search.

The issues in the claim brought by [CLAIMANT] are [DETAILS]. You therefore need to disclose all those relevant documents that deal with:
[list the relevant documents]

The duty to disclose documents remains in force throughout the proceedings. Therefore, if further relevant documents are found or are created while the claim is ongoing, they should be disclosed.

The fact that documents are marked "confidential" is not enough to exclude them from the disclosure process. However, it may be possible to provide the information they contain in a manner that does not involve a breach of confidence. One way of doing this is by redacting (covering up) irrelevant or identifiably confidential parts of documents or by substituting anonymous references for specific names.

In addition to the provision for general disclosure of documents, tribunals have the power to order "specific disclosure" of documents requested by either party to proceedings.

If, on consideration of a list of documents, either party considers that the other has failed to give full disclosure of all their relevant documents, they may make an application to the tribunal. They will have to explain which document or category of documents they consider has been omitted, why those documents are relevant and ask the tribunal to order specific disclosure of those documents.

Tribunals usually attempt to avoid putting excessive burdens on employers but will order disclosure of what they consider to be important information needed by an employee. In considering an application, tribunals balance, on the one hand the expense and inconvenience that such an order might cause you, with, on the other, the need to ensure that the employee has the information they need to present their case and that the case is dealt with justly.

CONSEQUENCES OF FAILING TO COMPLY WITH DISCLOSURE DUTIES

Failure to comply with an order for disclosure can carry penalties. In addition to exercising their power to make an order for one party to pay the costs incurred by the other as a result of a failure to comply with disclosure duties, tribunals can strike out the whole or part of an ET1 or, as the case may be, an ET3.

Orders for disclosure are increasingly being issued with "unless orders", providing that unless the order is complied with, which includes compliance by a specified date or deadline, the ET1 or ET3 will be struck out without further consideration of the proceedings.

Therefore, to avoid any of the above occurring please send the requested documents by no later than [DATE].

Yours sincerely

XXX



If they still fail to disclose then you can consider making an application for specific disclosure or an unless order to the tribunal.

I would be grateful if you could please press Accept for the advice given so far, many thanks
Ben Jones, Solicitor
Category: UK Law
Satisfied Customers: 38954
Experience: Specialist in UK Law with expertise in UK Employment Law
Ben Jones and 2 other UK Law Specialists are ready to help you
Customer: replied 3 years ago.
Hi Ben,

In relation to the above I have received a response from the Respondent which is:

"I refer to Directions x and x of Judge xxxxs Order dated xx re disclosure of documents.

I will not be able to respond to your requests because I do not have these documents. I will be providing you with a List of Documents in or around x December 2011, and in response I would be grateful if you comply with Direction X. You may make a request for production of those documents. I will however take note of your requests and these will be looked at in due course."

This is what it says on the CMD notes
"Point x On or before X Dec 2011 the parties shall prepare and exhange a list of all documents which are otr have ben in their possession or power realting to the matters in these proceedings.

Point x On or before XJan 2012 a party may ake any request of the other party for the production of documents on that part's list and those documents shall be supplied by way of copies on or before x Jan 2012. "

The documents that I have requested under specific disclosure are those that support me in my needing to provide information to the Tribunal by 11th Nov 2011 re my disabilities being supported for under the DDA by the Respondent e.g invoices of equipment brought for me via access to work etc which are in their possesion and itemised work mobile phone that provides evidence of my calls to my support worker etc

I have given a timeline for my requests for the information to be supplied at the latest by 3rd Nov 2011 - I do not feel they will comply and so will seek a specific order for disclosure from the Tribunal as this information is crucial to em at this time and not in Jan 2012.

Can you please advise how I would apply to the Tribunal for the specific order for disclosure Ben and how best to word this.

Thank you
Expert:  Ben Jones replied 3 years ago.
Do you know whether they definitely still have these documents?
Customer: replied 3 years ago.
Hi Ben,

Yes, I am 100% sure- they are a large local authority and have to keep such records for audit purposes ( VAT returns and the like). I myself had copies of these in my Access to Work Folder which they are effectively refusing to hand back to me. The records are only since March 2009 to date so not that old.

Phone records they have admitted to having in their ET3 as they make reference to my spending an inordinate amount of time speaking to my support worker. Again I only want these records so as to asceratin whether this is in fact the truth as I dispute this being the case.
Expert:  Ben Jones replied 3 years ago.
ok let me check this out for you
Customer: replied 3 years ago.
Thanks Ben as always.
Expert:  Ben Jones replied 3 years ago.
To make a request for specific disclosure you need to write to the tribunal and advise them that you have made a formal request for these specific documents to be disclosed but the respondent has failed to do so. As such you are making a formal request for the ET to make an order under Rule 10(2)(d) of the ET Rules and Regulations to disclose these documents.

Also state that you are making this request under CPR 31.12.
Ben Jones, Solicitor
Category: UK Law
Satisfied Customers: 38954
Experience: Specialist in UK Law with expertise in UK Employment Law
Ben Jones and 2 other UK Law Specialists are ready to help you
Customer: replied 3 years ago.
Thank you so very much Ben
Best wishes S

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Ben Jones
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Specialist in UK Law with expertise in UK Employment Law