Having a right, for example the right not to be unfairly dismissed, or to have reasonable adjustments made to your disability, is one thing. But on its own, it is not worth much.

The best way of explaining why is a worked example:

s94 of the Employment Rights Act 1996 creates the right not to be unfairly dismissed. It does this simply enough, by saying in effect ‘An employee must not be unfairly dismissed by his employer.’ This right is then explained and detailed in the rest of the ERA.

But on its own, this really doesn’t do anything. You may have a right, but what happens if it is breached? What, in other words, is your remedy?

This is set out in some of the later sections of the ERA, s112-126. These set out the basic and compensatory awards – as well as the various re-employment orders that might be made

So this far, you have both a right and a remedy. But even this isn’t enough. You need a way of getting your remedy. Otherwise your employer could say “Yes, you should not have been unfairly dismissed, and I should pay you compensation – but what are you going to do about it?”

The answer, of course, is that you are going to go to an employment tribunal. But if you are to do so, the tribunal must have jurisdiction. That is to say, it must have the legal power to deal with your claim. That’s set out in s111 ERA, which tells us ‘A complaint may be presented to an employment tribunal against an employer by any person that he was unfairly dismissed by the employer.’ Without s111, the tribunal wouldn’t be able to hear any unfair dismissal claims. And because it says that unfair dismissal claims will be heard by the employment tribunal, they cannot be dealt with by another court. If you tried to bring an unfair dismissal claim in a County Court, it would be rejected, because the County Court does not have jurisdiction.

All this is important, because there are traps for the unwary. You must not assume that, just because you have a right, you are entitled to compensation in a particular way or that you will be able to bring a claim to the tribunal.

For example, the Working Time Regulations 1998 contain a right that you will not have to work more than 48 hours a week (unless you agree in writing to opt-out) and that night workers do not have to work more than eight hours at a time. But there is no entitlement to compensation if these rights are breached and you cannot bring a claim to the employment tribunal about them. They are enforced by the Health and Safety Executive, and various other Government agencies.

For each claim you bring to the tribunal you must have some idea of what compensation can be awarded, and where the tribunal’s jurisdiction comes from. Otherwise you may be caught out: at best, you’ll have have wasted your time, and at worst you may have missed the chance to bring your claim in the correct forum, or risk an order that you pay the other side’s costs.

Or, to be less obscure, you can download the first chapter for free.

You do still have to buy Chapters 2 through 12, I’m afraid. But Amazon is currently offering a small discount.

Inspector Gregory: “Is there any other point to which you would wish to draw my attention?”
Holmes: “To the curious incident of the dog in the night-time.”
Inspector Gregory: “The dog did nothing in the night-time.”
Holmes: “That was the curious incident.”

People are often worried about missing evidence. For example, a claimant knows that most internal communication between his employer’s managers is conducted by email. But, during the disclosure process, no relevant emails are disclosed and their existence is denied.

One approach is to try to persuade the tribunal to allow you to dig out the information. Theoretically, a computer expert could be instructed to search their system and recover relevant evidence. This, however, will be expensive and extremely disruptive. It will almost never be considered proportionate by the tribunal and in the vast majority of cases it is futile to even try.

In 999 cases of 1000 the appropriate course is simply to cross-examine and make submissions on the missing evidence. You can point out just how implausible it is that no emails were sent. If it really is terribly unlikely, and you can convince the tribunal of that, they are likely to draw very negative conclusions about the Respondent’s credibility and conduct.

Tribunals occasionally ask the parties to prepare a thing called a ‘Scott schedule.’ This sounds very technical, but all it means is a table setting out certain information about the claim. It could take a lot of different forms, depending on the kind of thing in dispute, and it could be short and simple or long and complicated. Often a table in a Word document will do; sometimes it will be easier to use an Excel spreadsheet. (So far as I’ve been able to discover, it’s named after a judge who first came up with the idea.)

This will be clearer in the context of a couple of examples.

In a complicated discrimination case, you might be asked to set out in a table each act of discrimination you are complaining of, with its date, the people involved, when you raised a grievance about it, and whether you say it was direct discrimination, harassment, victimisation or indirect discrimination. So in that case, your table would have 5 columns, headed respectively: ‘Incident,’ ‘date,’ ‘people involved, ‘date of grievance,’ ‘nature of claim.’

If you are complaining of failures, on a number of different occasions, to pay you commission to which you were entitled, you might be asked to set out in a table each month for which you say you were underpaid, the total value of the business you say you should have been given credit for, the clients concerned, the amount of commission you were paid, and the amount of commission you say you should have been paid.

If you’ve just been told to prepare a Scott schedule but not what information to put in it, you haven’t been given intelligible instructions at all. Ask for an explanation.

Employers quite often refuse to disclose documents that mention or relate to other individuals, saying they have to keep those documents confidential because of the Data Protection Act.

They are wrong. Section 35 of the Data Protection Act says this:

(1)  Personal data are exempt from the non-disclosure provisions where the disclosure is required by or under any enactment, by any rule of law or by the order of a court.
(2) Personal data are exempt from the non-disclosure provisions where the disclosure is necessary—
(a)  for the purpose of, or in connection with, any legal proceedings (including prospective legal proceedings), or
(b)  for the purpose of obtaining legal advice,
or is otherwise necessary for the purposes of establishing, exercising or defending legal rights.

In other words – in this context – there is nothing in the DPA to prevent an employer from disclosing documents if disclosure is necessary in employment tribunal proceedings. At most, if the relevance of your request isn’t obvious, they might say that they are not sure that section 35 applies because they are not sure disclosure is ‘necessary’ for the stated purposes – so if you want it you’ll have to get the tribunal to order it. But that doesn’t mean the DPA will be of the slightest help to them in opposing your application: you’ll just be arguing about whether disclosure is necessary, which you’d always have to establish before you got an order for disclosure.

Lots of employment tribunal cases are won or lost depending on how thorough a job the claimant has done of shaking all the relevant documents out of the respondent.

A particular point to keep in mind is just how much communication is now done by email. That can be easy to overlook if your own job doesn’t involve sitting at a computer all day. But for those who do (and that means almost all office-workers), many things that a few years ago would have been said on the phone or face-to-face are now put in an email.

The difference between picking up the phone or putting your head round the door and writing an email, of course, is that the email leaves a permanent record. So if your managers have been discussing by email how to go about sacking you (for example), that is material that you should be able to get hold of when it comes to disclosure.

What do you do if you’re desperate for a pee and there’s still an hour to go until lunchtime or the end of the day?

If you’re just observing the hearing – whether it’s your case, or you are a friend or relative of the claimant’s, or a member of the public, or you’re a witness waiting to give your evidence – you can just quietly leave the room. You may have various reasons for coming and going during the hearing, and there’s no obligation to stay put once you’re there.

But if you are in the middle of giving your evidence, or you are representing one of the parties, the hearing can’t go on without you. That doesn’t mean you have to be heroic: just ask for a break. For some reason, the standard way of saying this in the employment tribunal is to ask for a ‘comfort break.’ It is a common enough request and one that is pretty much bound to be granted: there’s no need to feel anxious or embarrassed about it.

An important bit of preparation for the hearing is getting detailed comments on the other side’s statements from your client. There are two reasons for this.

First, you may want to get your client (or other witnesses) to give some additional evidence commenting on the other side’s statements. You need to know before the hearing what they have to say, so that you can ask the right questions to give them a chance to say it.

Second – and perhaps more importantly – you need this information for the purposes of your own cross-examination. If the dismissing manager says something that your client says can’t be true, you need to know why – so that you can put that to the dismissing manager when you are cross-examining her.

So as soon as you exchange witness statements, send the employer’s statements to the claimant and ask for detailed comments on them. For everything they say, you want to know ‘Do we agree with this? If not, what do we say?’ It’s important to do this promptly, because you will often need further explanation of some of the comments: people aren’t always very good at realising quite how specalised their knowledge about their own workplace is. Depending on your client, it may be better to do this in a face-to-face meeting. Have the person who is going to present the case to the tribunal at the meeting if at all possible.

I’ve just read the best advice I’ve ever seen on this subject in Bryan A Garner’s book The Elements of Legal Style (2nd ed., OUP 2002, p.207). It’s worth quoting at some length:

Gender-neutral language isn’t about political correctness; it’s about credibility. Regardless of how you may feel about the old “rule” that the masculine he includes the feminine she – whether you detest it or you like it – you’ll need to handle the English language with some care to have credibility with a wide range of readers.

This isn’t an easy task. On the one hand [some] readers …. will think you’re crazy if you write he/she, s/he, or (s)he. They’ll know you’re crazy if you write – as one book author has – s/he/it. On the other hand, [readers of a different sort] will think you’re a troglodyte if you use he to refer to readers generally – as if the feminine were the unstated exception swept into the masculine rule of our language.

Is there no way to win over your readers, then?

Yes, there is. It takes some skill and a lot of effort. With those two things, you’ll be able to produce a style that never induces readers to consider your personal biases. If your point is that you want to induce this reaction, then you’re rebuffing some of your readers – something you may willingly do unless you have a client whose money and perhaps even freedom are on the line. If you’re trying to persuade someone on a point unrelated to sexist language, then the issue shouldn’t even arise.

Garner goes on to demonstrate various specific techniques: weeding out pronouns (e.g. ‘a claimant in this situation should do this or that’ instead of ‘if a claimant is in this situation, he should do this or that’); pluralising (‘if claimants are in this situation, they should do this or that’); using the 2nd person and imperative voice (‘if you are in this situation, do this or that’); and several others.

But his key insight is that – if you are writing on someone else’s behalf, and seeking to persuade – it doesn’t matter whether the feminists or the troglodytes are right. What matters is that if you side visibly with either, you’ll risk annoying someone. The only way to be reasonably sure not to annoy any reader is to make the issue disappear from sight.

The third edition of Employment Tribunal Claims is now being printed.

There are two ways of pre-ordering the book. Amazon is currently accepting orders at the reduced price of £26.25. Or you can order direct from Legal Action Group at the list price of £35.

The advantage of ordering directly from LAG is that you’ll probably get the book before Christmas. Orders from Amazon will have to go from LAG, to Amazon, then on to you, and probably won’t reach you until January.

If you want to read some reviews of the first and second editions, you can find them here.

We’re not actually recommending it as a Christmas present, though.