It depends.

If your former colleague or former employer wants you to attend, and you don’t want to, you don’t have to unless the tribunal orders you to attend. The tribunal is very unlikely to make an order unless one of the parties asks them to. If they do make an order, it doesn’t mean you have to give the party that has asked for the order any assistance in preparing their case: you don’t have to talk to them beforehand if you don’t want to, or give them a statement of your evidence.

On the whole, parties tend not to ask the tribunal for witness orders unless the witness is basically willing to attend anyway. That’s because a reluctant witness normally won’t have provided a witness statement – so no-one knows for sure what they are going to say until they say it to the tribunal. That means calling them is risky. (There’s a bit more about this here.)

The situation is a bit different if it’s your current employer who wants you to give evidence. They can’t actually force you to do so – but they can make your life miserable if you refuse, and they might even discipline or dismiss you. So you might find yourself in a position where you’re under a lot of pressure to give evidence.

If your employer wants you to say something that isn’t true, you should stand your ground anyway: telling lies to the tribunal under oath is perjury, which is a serious criminal offence. If you’re dismissed for refusing to do this, you should certainly complain of unfair dismissal; in some circumstances, you might also be able to complain of discrimination by way of victimisation.

If your employer wants you to tell the truth, but you’d just rather stay out of it, you will have to make a judgement about what they’re likely to do if you refuse, and how strongly you feel about not getting involved. But bear in mind that the more closely you were involved in the events giving rise to the claim they want you to give evidence about, the more likely they are to be able to justify disciplining you for refusing to obey a lawful management instruction.

In Hardie Grant London Limited v Aspden, the EAT has made it clear (if it wasn’t already) that the statutory limit on the amount of compensation that can be recovered for unfair dismissal must be applied after, not before, any ‘grossing up’ calculation has been done. As usual, I’m indebted to Daniel Barnett for his email alert on this case.

Grossing up is the calculation that you do to work out what you need to receive so that, after tax, the part of your award that you get to keep properly compensates you for your net losses. If your claim for lost earnings amounts to less than £30,000, you don’t have to worry about it: you won’t have to pay tax on it anyway. But if you are claiming more than £30,000 in lost earnings, although the tribunal will award you your net losses, the amount by which your award exceeds £30,000 will still be liable to be taxed as income.

It’s not really difficult to calculate how much more you need to be paid in order to be left with the right amount after tax – but it is quite fiddly, and will depend in part on your income for the relevant year from other sources. If anyone knows of a set of good, clear step-by-step instructions for this calculation (or better still, an online calculator that asks you for the relevant information and then spits out the answer), please comment.

A paper-heavy case – where the hearing bundle runs to several volumes and there are a dozen witnesses or more – presents various specific difficulties. The main one of course is that there is a lot of material to get your head round. There’s no quick fix for that: preparation will take a long time.

This post just offers a handful of very small ways to make life easier.

1. Label the inside cover of each volume of your bundle with the volume number and the page range. That way, you’ll be able to identify the different volumes of your bundle at a glance when they’re open on the desk in front of you.
2. Print your own copy of the bundle double-sided. It’ll weigh half as much and take up half as much space. There will be some minor inconvenience (e.g. where you need to insert additional pages after the bundle is printed), but the reduction in general hassle is worth it. If you want to reduce your bundle to quarter size and you have good eyesight, print it double-sided on A5 paper.
3. Write the name or initials of the witness at the top of each page of the witness statement. (If it’s your statement, include it in the ‘header zone’ of the document; if it’s the other side’s, and they haven’t done that, just write it on each page.)
4. Print claimant and respondent witness statements on different coloured paper, so you can tell at a glance which is which.

Some employment disputes just are about really bad behaviour. If you’ve suffered sexual harassment, or racist or homophobic abuse, for example, there’s no pleasant way of saying it. The chances are your employer will deny it, and you’ll end up in the sort of hearing where feelings run high, and serious and discreditable allegations – including allegations of lying to the tribunal – are made on both sides.

But lots of disputes are altogether less personal. Suppose your employer has closed down your workplace and offered you alternative work 30 minutes further from your home. You’ve refused the alternative work, and claimed redundancy. They have said you’re not entitled to redundancy pay, because you’ve refused an offer of suitable alternative employment.

If you’re right, you get your redundancy pay; if your employer’s right you don’t. Obviously you’d like to have the money, and they’d prefer not to give it to you. Obviously you’ll both do your best to win the dispute. But no-one’s really behaving badly here, are they? It’s just both sides legitimately seeking to further their own interests.

A dispute like this ought to be able to be conducted from start to finish in a calm and polite manner, without either side causing the other any particular offence.

If most of your dispute is of this nature, but one aspect of it involves allegations of really bad behaviour, do think carefully about whether you really need to run the ‘nasty’ part. It will raise the temperature of proceedings a great deal, and make the whole case harder and more stressful to fight – and much harder to settle. So run it if you think it has a strong prospect of success and it is going to make a significant difference to how much compensation you can claim. If it doesn’t tick both those boxes, ditch it.

When a tribunal considers making a costs order, or the amount of a costs order, they may have regard to the party’s ability to pay (rule 41(2)). In other words, in general, a poor party is less likely to have costs awarded against them than a rich party.

Normally, this means looking at the party’s income and expenditure. But in Shields Automotive Ltd v Ronald Greig the EAT considered whether capital assets — in this case £135k equity in a house — should also be taken into account.

They concluded that they should.

This means that, if you are facing a costs application, you need to be prepared to discuss any capital you have.

As well as the amount of capital, you should also address its liquidity. £10k in cash is very different to £10k in house equity. Cash is easy to access, and therefore easy to use to pay any costs. House equity, however, can usually only be accessed by selling the house or borrowing against the equity. If there are practical difficulties in doing this, you need to tell the tribunal.

The EAT concluded that inaccessible capital was still relevant. But the fact that something is relevant, does not mean that it will persuade the tribunal. The harder it will be to change capital into funds that could be used pay a costs order the less likely the tribunal is to make one.

The case also dealt with the tribunal’s approach to the claimant’s lies about payments to his estranged wife. Suffice it to say that, if you do get caught deceiving the tribunal about your finances, they are likely to ignore them altogether, on the basis that you have prevented them getting an accurate picture.

Thanks to Daniel Barnett for the bulletin that drew this to my attention.

If you arrive at the tribunal on your own, or on your own apart from a representative or a family member, it can be quite intimidating to see 2 or 3 managers and half your former employer’s HR department there on the other side.

Try not to take this personally, or let it worry you unduly.

First, even if all of these people are proposing to give evidence, it doesn’t necessarily put you at a disadvantage: witnesses lose cases more often than they win them – by wheeling out a lot of witnesses, your employer may actually be improving your chances.

And if several of your former colleagues are there just to observe proceedings, it can feel like a calculated attempt to intimidate you. But it probably isn’t: more likely, it’s just that it’s useful for them to see what the process is like. For most managers and HR people, ET hearings are both a fairly rare event, and a stressful one. It’s useful for managers to see their colleagues having to defend their decisions under cross-examination in a case in which they are not directly involved: for one thing, they may learn things that make it less likely for their decisions to be challenged in tribunal in the first place; and if they do ever have to give evidence in a tribunal hearing in the future, at least they will have seen the process before, so it won’t be completely unfamiliar.

The latest edition of Employment Law: An Adviser’s Handbook is out.

There are a number of attempts at a basic guide to employment law in one volume. This is by some way the best. It gives good, practical advice about the whole range of employment law that you are likely to encounter. And it makes the difficult legal issues as simple as possible, but no simpler.

If you buy just one book before your hearing, this should be it.

Employment Tribunal Remedies is a very different sort of book. It’s a dense practitioner’s text aimed at employment lawyers.

Unless you are dealing with a tricky problem in calculating compensation, it’s probably too much. And if you just want the basics, a more accessible general guide — such as Tamara’s — is more helpful.

But if you do have a tricky compensation problem, there is a good chance the answer is here. It deals in detail with all sorts of issues that other texts either touch on briefly or don’t address at all.

If you buy either book by clicking on one of the links above, FRU will receive a small cut of the price (about 5-6%).

… point your feet at the employment judge.

Witnesses are constantly reminded to address their answers to the tribunal. When you’re being questioned by your employer’s representative, or your own, the natural thing is to give your answers to the person who has asked the questions. But it’s essential that the tribunal hears your evidence – and they are probably sitting further away from you than the respondent’s representative. So if you address your answers to them, everyone should be able to hear.

The trouble is, it feels odd – and actually quite rude – to turn away from the questioner and give your answer to someone else, and witnesses constantly forget to do so. Sometimes they forget so often that the tribunal gets a bit sharp with them, which adds to the stress of an already stressful situation.

This is where your feet come in. If you keep your feet pointed at the employment judge, you’ll have to twist slightly to look at the representatives, and the natural tendency to untwist as soon as possible will help you keep your answers directed to the panel.

(This isn’t original – I can’t remember where I heard it first, but it’s a good tip.)

It is impossible to overemphasise the importance of the bundle to employment tribunal proceedings. But I shall try.

It is the alpha and the omega, the first and the last; the ying and the yang; the land, the sea, the air and the earth. If this sounds like rather mystical talk for an employment law site, it is. But I am struggling to express the true importance of the bundle.

Unless everyone in the room has a copy of the same indexed, paginated set of all the relevant documents all other action becomes difficult or even impossible.

You can’t give evidence, because nobody can look at the documents that you are talking about. You can’t cross-examine, because it’s impossible to confront the lying witness with the incriminating email. You can’t make submissions, because the subtle point of contractual construction you wish to present won’t be understood by a tribunal who cannot read the contract.

If there is no bundle the very best that you can hope for is that everyone will somehow struggle through by sifting through piles of paper and passing documents around. Even if the tribunal lets you get away with this — and most won’t — it will be a unpleasant, frustrating experience.

Even a bad bundle — one that is incomplete or poorly organised — makes things surprisingly difficult. Almost everything you do in a hearing involves the bundle, and if it is difficult to use, everything is just that little bit harder.

Turning up with no bundle, or a bad one, will also annoy the tribunal. This is understandable. They have a demanding and difficult job to do; they want to get on with it. If there is no bundle, their ability to do so is crippled and their time is wasted.

This means that it is vital that that you make sure that there is an appropriate bundle prepared for the hearing and that there are sufficient copies of it. You need at least six — three for the tribunal (unless a judge is sitting alone), one for the witness table, one for yourself and one for your opponent.

Normally, the tribunal will have issued orders about the disclosure of documents and bundles. If everyone follows them all will be well.

But things don’t always go smoothly. It may be that the respondent is uncooperative or you take on representation close to the hearing to find that nothing has been done.

In that situation, you need to try hard to get things sorted out. If you haven’t disclosed documents, do so as soon as possible and offer to prepare the bundle (or a new bundle, if necessary). If it is the respondent holding things up, chase them.

If the respondent is uncooperative, tell them what you’re proposing to do, give them a chance to respond or contribute, and then if they don’t respond usefully, do what you have proposed For example, write saying something like “I have sent a number of letters trying to agree a bundle, but I have not had a reply. Unless I hear from you in the next seven days, I will assume that you agree to the proposed index I sent with my last letter.” Then, if you don’t get a reply, you produce the bundle according to your proposed index and send a copy to the Respondent.

The position you want to get to is that, if a grumpy tribunal judge starts in at the beginning of the hearing with “Where is my agreed bundle? Why haven’t the tribunal’s orders been followed?” you are safely on the moral high-ground, having done everything you can to get a sensible bundle ready. If you have succeeded, the hearing has a better chance of going ahead smoothly; and if you haven’t, at least it should redirect the judge’s irritation to the other side where it belongs.

There is a deeper lesson in all of this. We like to think that legal practice is all about our rhetorical eloquence, searching cross-examination and incisive legal analysis. And so it is, on a good day. But it is also about making the nuts and bolts of the process work. Until you have done that, you can’t hope for a good day.

The London South Employment Tribunal in Croydon has been damaged in recent events and is currently closed. They’ll be closed for the rest of the week. In other words, they won’t be open until Monday 15th August 2011 at the earliest. The damage is apparently fairly serious, so we don’t know for certain when they’ll be back up.

So if you have a hearing scheduled this week it won’t be going ahead. The tribunal will be trying to relist everyone. I suspect, but I have no inside knowledge, that you should get a new date at some point over the next few weeks.

If you want to check this (and you should, it’s not a good idea to miss a hearing date just because someone on the internet tells you to) you can call London South. They’re not answering the phone, but if you hang on there is a message.

As so often, I first knew about this because Daniel Barnett told me.

Update: HMCTS have issued a press release. It confirms that hearings won’t be happening this week, but says we should work on the assumption that anything scheduled for next week will go ahead.

Further update: Apparently the tribunal has been able to move some of this week’s hearings to other venues. If this applies to you, the tribunal should already have been in contact.