Employment Tribunals - A Guide to Good Practice

Hello. My name is Alice. Tahar. Gin. Can I welcome you to this data law? Webinar on employment tribunals. A guide to good practice. Over the course of the next half hour, I'm gonna be speaking to you about some of the things that you should be doing when conducting employment litigation in the employment tribunal. I'm going to start by looking at the very start of the process with the tips for the e T. One on the e t three. I'm then going to deal with preparation for any issues of case management, perhaps at a preliminary hearing on then some guidance for good practice on preparing for the actual employment tribunal hearing bundles, witness statements, etcetera. Let's start there for the very beginning off the process. The first stage in any employment case is, of course, the drafting off the e. T. One. The claim to the tribunal. The claim form itself is available on Lion set out on its standard for on one of the things that I have noticed in recent times. Certainly where claimants or claim and solicitors are filling out that form, a number of the boxes there are being left blank. It is vitally important for the purposes of the respondent responding to the claim as well as the tribunal being given certain pieces of information that you complete that e t. One form as's fully Azaz you can. Why? Because certain parts of the form are obligatory and if they are not filled in, the tribunal may very well reject the claim. Of course, in modern times, it's also important to make sure that you have set out your cast early conciliation certificate number as part of the E t. One form again. If you have not done so, it is highly likely that your claim will be rejected by the tribunal in terms of the body of the claim. Obviously, every solicitor or council will draft a claim in their own way. However, a few tips from me on how to actually set out the clay. What I like to do at the very start is rather than if I'm making a claim rather than going straight into a narrative, setting out the factual background to the case that has led to the claim being made. I rather like to put in my first paragraph what the claims are that are being made because very often, if you're et one particulars of claim or grounds of complaint or whatever you want to call it is a detailed, long winded chronological narrative. It is very difficult for either a tribunal judge or indeed a lawyer acting on behalf of the respondent to determine what it is you are actually claiming. I therefore in Paragraph one, would always start with something like for the avoidance of doubt, the claimant claims automatic unfair dismissal pursuant to Section 99 of the Employment Rights Act 1996. Ordinary unfair dismissal Pursuant. Section 98 of the Employment Rights Act 1996 detriment through whistle blowing, etcetera, etcetera So the claims will be deep will be clearly set out at the start off the pleading. If I can call it that all the grounds of complaint or the particulars of play, then structurally, there comes the time to set out the factual background, the history of what has happened that has led to the claim being made on. Then I think what needs to happen is that you have a section at the end that sets out in effect, your legal submissions along the points that you and making submission to the judge of the end of the case. Firstly, if there were a question mark over whether or not the claimant was dismissed, the aversion would be the claimant. Cook contends that she was dismissed within the meaning of Section 95 1 a of the Employment Rights Act 1996. The letter off 10th of October of 2017 makes it clear that this is an express dismissal by the employer on so on and so forth, working through each of the issues in each of the claims that are being made. What is the advantage of this? Well, as I've already said, it makes it crystal clear for the employment judge who first looked at the claim to determine what the claims are. It also assists the tribunal staff in processing the claim on giving the code to the particular claim that is being made on. Thirdly, it gives some assistance to the lawyer acting on behalf of the respondent, who then has to put in a response when drafting a response. The ET three form, of course, needs to be filled in with certain requisite information on when drafting grounds of resistance or defenses or whatever you want to call them again. I like to follow a particular structure. Tribunals like it where the first paragraph sets out your position on each of the claims that are being made. And of course, if the grounds of complaint have made it clear what the claims are, then obviously you can set that out clearly at the very start, Then I would deal in detail in the grounds of resistance with each off the claims that are being made. There may be preliminary points in relation to each of the claims being made, whether they be jurisdictional points, for example, a time point. That claim has not been presented within the period of three months, beginning with the act upon which the date upon which the alleged act was done subject, of course, toe early conciliation provisions as well as just inequitable extension in a discrimination case or reasonable practicability in an unfair dismissal case. So there may be preliminary points that you want to make. Another example, of course, is disability discrimination you would want at the outset. If if is the employer, you are taking the view that the claimant is not disabled. You would want to say that at the outset something along the lines of, by way of preliminary. The respondent does not admit that the claimant is a disabled person within the meaning of Section six off the Equality Act. In the circumstances, the claimant is put to strict proof of such disability than a new section. If which is not admitted, the Employment Tribunal finds that the claimant was a disabled person within the meaning of Section six of the Equality Act 2010 the respondent will of various follows and then set out your employer's position in relation to each aspect off the claim. I'm often asked whether the E t three and grounds of resistance should contain a long narrative off what happened. As a matter of fact, in a particular case, my view has always been that this will vary from case to case. There will be certain cases if there are areas of dispute, where as an employer, you might want to set out a full digest of what actually happened in a particular case. Although most of that is largely going to be a matter of evidence that will be contained within witness statements. In due course, more often than not, when I'm drafting grounds of resistance, I like to keep them short, sharp and sweet, and to the point, weaving in a little bit of evidence here and there simply to make the point off what I will be arguing at the end of the case, for example, it would be of no use to an employment tribunal if you said it's part of an unfair dismissal case. Further, the respondent content that the reason the claimant was dismissed for a fair reason within the meaning of Section 98 1 b i. He was dismissed for some other substantial Reese. What you ideally need to do is go on and put the claimant on notice in the tribunal on notice as to what that some other substantial reason waas was it? A personality clash was the third party pressure. Was it a business reorganisation that was not a redundancy? Whatever the circumstances of the particular case is, so that's the easy one in the E. T. Three, which they go in, and the Great Tribunal machine, as it has become known. Well, then trundle away on, you might hear back from them within two years or, indeed, three years. No, I jest. I'm only being clipping. Of course. The tribunal service will then process the ET one in the e. T. Three on. Usually, if a respondent, as part of its ET three, has requested a preliminary hearing to deal with case management. Or indeed, the tribunal of its own motion takes the view that there should be a preliminary hearing on case management, it will fix a date and send notification of that date to the parties. Often times, though. Tribunals, if it's a simple, unfair dismissal claim or if it's a more straightforward claim will, of course give directions off their own motion when the responses set out. Now you when the claim is acknowledged and the response back set the respondent very often they're already directions in place for the filing of the response, the exchange of documentation, the preparation of witness statements and the listing of the matter for a trial. But assuming that that's not the case and we have a case management hearing to deal with, let me give you some tips on that Most tribunal regions now send out the standard agenda that is has become now a standard form for the last few years, which the parties are encouraged to complete on indeed attempt to agree at least seven days before the hearing. Why is this practically well? Because if an agreed agenda could be sent into the tribunal seven days in advance in certain regions of the country, many tribunal judges will take the view that if there is agreement between the parties on most of the issues and directions on the matter can then be dealt with by telephone, thus giving a cost saving to both parties in a case. One part of the agenda document asks the parties to identify the list of issues in a in a case. This is a document that will be of great use to the employment tribunal that subsequently hears the case in due course. Why? Because the list of issues will clearly set out the various aspects of the claims on the questions that the tribunal has to ask itself by way of example. In a section of a list of issues headed unfair dismissal, it may well say, was the claimant dismissed within the meaning of Section 95 1 A of the Employment Rights Act 1996 to, if so, was the claimants dismissal for a fair reason, namely conduct within the meaning of Section 98 to be of the Employment Rights Act three. If so, was the dismissal fair and reasonable in accordance with Section 98 4 off the Employment Rights Act 1996 On, therefore, that the issues are clearly set out if you can try and compartmentalize that list of issues as succinctly as possible? Very often I see lists of issues that go on and on and on in terms of the particulars on. In my view, you might as well look at the ET one or the particulars of playing to see the long winded version. What the tribunal who'd could deals with a full hearing needs is a succinct, concise, pithy list of issues so that it knows the various questions that it will have to ask. Of course, it's important if you can, to seek to agree that list of issues with your opponent in advance of the hearing. In 90% of cases, agreement is reached on the list of issues, and indeed the content of the agenda in the main where parties tend to disagree usually is in terms of the actual listing of the hearing. How many days are actually going to be required for the full hearing of the case on indeed, whether the parties wish to take advantage off the judicial mediation scheme. So I guess the good practice point to come from case management and going to preliminary hearing is that remember the cooperation with the other side is the key. Don't try and win your case. A case management stage. Don't try and score points against any opponent at the case management stage. Remember the case management is all about both parties assisting the tribunal with the further development of the case and getting it to a full hearing. The time for scoring points is very much a full hearing on Do Not before in terms off. The next stage of the process, which is usually the exchange of documents. Do that as best you can. Obviously, Sometimes you may have clients that are gonna be slightly more difficult in providing you with documents, but the earlier you can get a hold of the documentation, the better because that will allow you to put together the bundle of documents that you consent to the other side and see where the where the common documentation is. Let me turn Teoh a supplementary issue in relation to documentation, which usually comes after the documentation for reasons which will become apparent on that is the preparation off witness statements, The preparation off witness statements on the face of it is a relatively easy thing, however, very off solicitors fall into various traps and let me just give you some pointers, if I may, on how to put together a well drafted and well structured witnessed a point number. One, of course, is that the witness statement should be typed. Handwritten witness statements are very, very rare these days. One still sees them from time to time from litigants in person. But typed is always a good starting point, and I'm sure I don't need to teach you all how to suck eggs on that particular point. The second aspect of witness statements is that they should be double spaced. Why? Because tribunal judges and members like reading witness statements that have double spacing. If there is, in fact, a witness statement that is single space on the paragraphs of are quite long. It is actually very difficult for a judge to actually read the evidence. And of course, as we know, since the Underhill reforms, most witness statements unless the tribunal directs otherwise from every witness in a tribunal case, are taken as read on. Therefore, the tribunal judge and members are gonna have to undertake a process whereby they actually sit down and read it on. The easier the document is to read, the better off it is going to be so always double spacing and indeed at least 12 see P I in terms of the font size. I remember doing a case a few years ago where the claimants witness statement ran to some 817 pages. Not just that it was singles faced, and 10 c p I on the paragraphs were very long. It was given to me in PdF format, and it was only the week before the trial that I finally managed to convince the claimant solicitors to give it to me in a word for that so that I could then change the font size and change the line spacing so that I could actually work with it. Indeed, the copy of that statement that was submitted to the tribunal by the claimant and or her solicitors was remarked upon by the employment judge as being quote not very helpful, the simple reason being, of course, that the judge had difficulty reading it. So always double spaced 12. See p. I. And typed. The other thing that witness statement should do is, of course, cross reference to documents in the bundle. The bundle of documents that we have already discussed that would have been put together through exchanging documents between the parties will be paginated. It will start at Page one on it will go through to page at infinitum, whatever the last pages on its very important again that the witness statements cross referred to the bundle because if a tribunal is having a reading day or taking a reading morning before a one day case starts, or whatever the circumstances, when a witness refers to a document in the statement what the tribunal judge and members want to be able to do it, see the page reference in this statement and then go to the bundle of documents which will have to one side find the page in the in the bundle and then read the document. Another tip for witness statements that I'm often asked is whether witness statements should be chronological or issue based. I myself favour on issue based approach in most cases, especially where there are multiple issues and multiple allegations. So never be afraid. In a witness statement, Toe actually use headings. Headings can be incredibly useful on what they do is compartmentalized the evidence on that particular issue. In other words, it might say, meeting with Mrs Wildman on the 10th of January of 2000 and 13 on. Then the witness gives their evidence about the conduct of that particular meeting. It's it's sharp and it's sweet, and the judge on the members know exactly where. The witness that witnesses evidence is on that particular issue. The only thing I would say about the use of headings and compartmentalizing it in this way is that you will see in practice that the witness statement does become quite clinical, However, thinking back to a case that I did in 2013 in the Leicester implying Employment Tribunal presided over by employment Judge Gaskell sitting with members Mr Faber on Mr Davis, acting for the respondent. Our witness statements dealt with matters on an issue by issue basis on the judge, said in his judgment that he found this to be a very clear way of setting out the evidence of each witness toe. Always use headings. The final point I want to make on witness statements for the moment is avoid legalistic language. Very often you see solicitors putting legalistic language into witness statements. There's no place for it in witness statements with a number of notable exceptions. For example, a to be case. Sometimes you have to put in a bit of law. But in the main, ladies and gentlemen, remember that witness statements are statements off fact. It's an ever it's a witness's evidence as to what happened and who said what to whom and who wrote to whom and what we're. Whether they received a letter on how they were perceived, they were treated by their manager. These are matters of fact. I think back to one great case I did in the Carlisle Employment Tribunal. Yes, indeed, there is an employment tribunal that sits in Carlisle on There's a very good Premier Inn in Colorado where I was staying, but I'll never forget this case. The claimant in that case, Waas a scaffold. He had left school at the age of 15 and for the next 33 years of his life he had spent his entire time putting up and taking down scaffolding. He had no qualifications. He waas on. I mean, they're disrespect by this. He was what I would call an uneducated man, but he knew a lot about scaffolding. You're about Skaff clamps and kibble bags and all that's in effect. When it came to his witness statement that had been prepared by his solicitor, I had to laugh at Paragraph six, biggest in Paragraph six. It was written, you know, in the speak off a 48 year old scaffold er, who knew nothing about life other than scaffolding. On in Paragraph six, he described the incident that led him to resign on leave the workplace and ultimately in this case, claim constructive dismissal on the statement. Quite clearly, the paradigm had been written by the scaffold because it was written in scaffold, Cumbria and speak that come in on a boat fishing and and it was written in that way with the Cumbrian accent. You could tell that these were the claimants own words, and that's perfectly permissible, permissible. I make no criticism of that. But what you had at the end of paragraph six, which I will still never forget is this Cumbria and speak that led to him saying so left the shot at 9:30 a.m. On. Then what it says was this by reason of the matters of four said, I consider myself to have been constructively dismissed within the meaning of section 95 1 C of the Employment Rights Act 1996 eyes what I say to that You cannot put that sort of language into a witness statement of a sort of a scaffold, or indeed, of any witness that, ladies and gentlemen, is a submission point. That is the submission that the Advocate will make to the tribunal inju course as to the circumstances of the constructive dismissal that all the factual matters that led up to the point of the claimant walking off site allowed him to resign and claim constructive dismissal. So leave legalistic language out of it. Can I now say a few words about evidence on Just go back at backtrack a little bit, if I may, to the content off the bundle, because obviously they're. In some cases, there may be vast amounts of documentation involved in a particular case. The bundle of documents I've already said should be paginated. Started page one. It should go through to pay jacks. If additional documents need to be added at some later stage, they can go into space 98 8 98 b etcetera, but in the main started one and work your way through. Avoid please sections of a bundle like Section A 1 to 40 section B 1 to 36 Section C 1 to 78 tribunals don't like that. Started page one and just work your way through. It's far easier for lawyers, especially the advocates, when we're conducting the case for a bundle that runs from 12 to whatever. In terms of the structure of the bundle, again is a few tips to give you on that. The structure of the bundle usually speaks for itself, and you would start with the E. T. 1 83 The claim on the grounds of resistance, then any tribunal orders, then if relevant to the case, the contract of employment of the employees on their after every document that follows should be in chronological order. I think that's probably one exception to that on The exception is this arose out of a case I did in Colchester a few years ago that where, for example, you are doing an unfair dismissal case and the employer content that the fair reason for the dismissal waas conduct it may well be that you've got a whole Siris of interviews. You've got a whole series of its correspondence inviting the claimant to the meeting. You think about the minutes of the disciplinary hearing on then subsequent to that was an appeal hearing, and in this particular case, I remember the judge asking my chair of the appeal, Powell will. Which documents? Did you have a part of your appeal pack? Ah, said the witness. I don't know. I don't know where they are in this bundle. So I think to that degree there is an argument saying that if there is a pack that is put together by an employer for the purposes of a disciplinary hearing on Doran appeal hearing It can go in in that structured way, albeit paginated, in accordance with the rest of the bundle. But it may well be that things go slightly out of sync time wise for that reason, only because the judge may want to know what documents each off the hearings had in front of them now a sort of mute point. The more that time goes on, the more shouted out I get about this. There are some judges who clearly are tree huggers that they they're keen on saving the environment and saving the planet. Well, as far as I'm concerned, that's a lot of nonsense. I've got no desire toe save the planet. And therefore, when you print off a bundle for a tribunal unless directed otherwise, make sure is his single sided. A lot of judges and tribunal members that I know in particular Mr K trick. He used to sit. A Croydon was one of the lay members of Croydon. Mr. Catterick always used to go ballistic. If a bundle was printed, two sided. Why? Because when looking at a document on the right hand side of the file, there is a blank page to the left on Mr Tetrick and other members and judges are able to write notes next to a particular document. So please, please, please, unless the tree hugging or environmentally friendly judge who's seeking to save the planet directs Otherwise. Bundles always one cited now a particular bugbear of mine. If I may hole punches, there is nothing I detest more than an untidy bundle on. Untidy bundles usually arise because solicitors and people who send me papers, whether it be clients or solicitors, have no had the foresight to invest in a thing called a hole punch. Indeed, maybe they haven't invested in a hole punch, but it is only a hole punch that punches about three pages at a time on. Therefore, the bundle is put together three pages at a time. Please, please, please. If funds allow, go up and buy a decent hole punch that will punch Ah 100 pages at a time on have little sort of guidance, things that make make sure all the pages line up straight. There is nothing less professional than going in front off a tribunal with an untidy bundle, pristine pages un creased on beautifully set out in a file are the best way to go. You will win brownie points for it. Then, of course, there's the old adage. Only the bundle should only contain the documents to which the tribunal will be referred. Well, that's an important consideration because nobody ever abides by it. There's always a vast amount of documentation that is included within a bundle to which the tribunal will never be referred, whether by witnesses in their own statements or indeed, in cross examination. Try if you can, to focus on the relevant documents for the bundle. Indeed, for those of you who practice in the Bristol region, you will know that one of the standard directions is that the bundle will be limited to 100 pages unless the tribunal directs otherwise. Or indeed, you make an application to do it. That's been in place now since the days of Judge tickle and is a very effective way of having the party's focus their minds on what the relevant documentation is. The judge in members they often when they're faced with reams and reams of paper, is part of a case. They take the view that they will not read the entirety of the documentation. They will focus only on the documents, which are referred to in any reading list or indeed are referred to by the parties in there. Respective witness statements for the various witnesses or, indeed, a document to what your witness has been taken in cross examination. The final point really to make before you actually get to the tribunal is really the importance off a witness conference. If you are going to be the advocate for a particular hearing, I think it is essential now to actually get all your witnesses together, no matter how many there are at least two weeks before your trial takes place. The purpose of that allows them to have ask you any questions or raise any queries that they may have. And it also gives us an A Z advocate an early opportunity to actually test how good they're going to be under cross examination. Of course, I'm not advocating coaching the witness. That would be taboo. One doesn't do that, but at least it allows you to meet the personalities. It also allows you to familiarise them with the process that will happen when they get to tribunal even a simple as what happens when you walk through the door of the tribunal building. Is there a security desk? Are you gonna be searched? Which floor is the claimants waiting? Roman? Is there water available? Is there a place nearby to reach a sandwich or to get a burger or whatever it may be? Witnesses will. Your witnesses will always be nervous no matter how many times they've given evidence in tribunal. So the easier you could make their task. The more familiar you can for warm them or forearm them with their surroundings, the better off they will be. I have a standard feel that I do it witness conferences where I talked them through each and every stage of the process, right from if we're going to Leicester from speaking to progress shoes and security guard going to the waiting room. The taking of the oath, how examination in chief has done simply by taking the witness statements has Red Cross examination, reexamination, tribunal questions and then submissions to the tribunal, as I say them, or explanation that the witnesses get of these particular matters, the easier it is for them to turn up tribunal in a comma frame of mind. I'm gonna pause there for the purposes of this seminar, because what that has done is giving you my sort of guide to good practice in getting ready for the tribunal. What actually happens at the tribunal is, of course, where the advocacy takes over the actual presentation of a case on Can I commend to you, if you are interested in that particular aspect of tribunal practice to actually have a look at my other webinar on advocacy in the employment tribunal, it should give you some pointers about how to take evidence in chief. How to make a submission to a judge on how to cross examine. I hope that's been of use on, Look forward to seeing you all again soon.