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Chronologies

In a case where there story is at all factually complicated – and quite likely, even if it isn’t – the tribunal will want a chronology. That means a list of the most important things that happened, with dates, in the order in which they happened. A simple chronology may just be a list of dates and events. Often the order in which things happened is extremely important to what inferences the tribunal will draw. Take a chronology that goes like this:

4/1/13 C started work

21/7/13 C announces pregnancy

22/7/13 C’s line-manager emails her a list of complaints about her latest assignment

28/7/13 C dismissed because ‘your work’s not good enough’

It’s pretty clear what’s happened there.

But change the order so that the email complaining about C’s work is on 21/7/13 and she announces her pregnancy the following day, and everything looks completely different. It might even be suggested (especially if she’s made the announcement very early in her pregnancy) that she has made the announcement when she has in order to make deter her employer from dismissing her.

It’s not usually as clear-cut as that, but often in the course of drafting a chronology you find that you notice some sequence of events that doesn’t quite fit with what one party or the other is saying.

I have 4 specific pieces of advice about chronologies, apart from the general observation that they are useful – both as a way of getting the sequence of events clear in your own head, and as a way of making your story clear to the tribunal.

1. Use a spreadsheet

Using a spreadsheet makes life easier because it doesn’t matter what order you put the events in – you can sort it into date order automatically periodically as you go through. That saves a lot of fiddly insertion of extra lines in a table.

2. Include page numbers

Part of the reason that chronologies are so useful is that bundles often aren’t properly in chronological order; mostly by accident, but sometimes even by design. If you have a bundle that isn’t in chronological order, it can be difficult to find any particular document, even if you know its date or approximate date, unless you know its exact page number. So for each event in your chronology that is closely associated with a document (e.g. the disciplinary hearing and the notes of the disciplinary hearing) or even is a document (e.g. the dismissal letter), include the page reference.

3. Use a spreadsheet intelligently

The facts will often have a number of separate strands: a formal disciplinary or capability process; various OH reports and consultations with the Claimant’s GP or specialist; a grievance process. Your chronology may be clearer if you separate out these strands into different columns, so for example you might have a ‘formal process’ column for disciplinary/capability hearings, invitations to hearings etc; a ‘sickness absence’ column for periods of sick leave; a ‘medical/OH’ column for OH referalls and reports and similar material; and so on.

4. Include blank lines

When you come to finalise and print your chronology so as to give it to the tribunal, you might want to add a blank line under each event so that if the ET members think there are other significant events that your chronology doesn’t record, they have space to add them.

See Workbook1 for an example of how the beginning of a chronology done this way might look.

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Unfairness

The Employment Rights Act says that employees have the right not to be unfairly dismissed, and whether or not an employer’s decision to dismiss was unfair is to be decided by the tribunal ‘in accordance with equity and the substantial merits of the case.’

You might think that that meant an employment tribunal had to decide whether they thought your employer had acted unfairly in dismissing you. You’d be wrong: over many years, judges have decided that what Parliament was really trying to say was that where an employer decides that a particular potential reason for dismissal is sufficient grounds to dismiss, the tribunal should only find that decision unfair if it was outside what has come to be known as a ‘range of reasonable responses’ open to the employer. Any time a tribunal actually decides for itself (as the Act seems to tell it to) whether a decision was fair or unfair, it gets firmly slapped down by the Employment Appeal Tribunal. Tribunals are constantly told that they must not ‘substitute their own judgement’ for that of the employer as to whether or not dismissal was appropriate; they must confine themselves to deciding whether the decision to dismiss was within the band of reasonable responses. This makes winning unfair dismissal cases – especially where you’ve done something wrong, but your employer has overreacted by dismissing you – pretty difficult.

Given that background, the judgment of the Court of Appeal in Robert Newbound v Thames Water Utilities provides a little bit of comfort. It doesn’t disturb the received wisdom, but it does at least emphasise that if it’s not for the ET to substitute its judgement on the merits of dismissal, it’s not, either, for the EAT to substitute its judgement for that of the ET.

Mr Newbound had (ironically) relied on his own judgement about whether it was safe to enter a sewer without breathing equipment. The employer had recently introduced new health and safety practices, under which he had signed a form indicating that he knew he was required to use breathing equipment for this particular task. He hadn’t read the form properly, of course, and didn’t realise that under the new regime he was likely to be disciplined for making his own judgement about safety. The tribunal had found his dismissal unfair. The EAT said that was ‘substituting its judgment’ for that of the employer. The Court of Appeal said there was no error of law in the ET’s approach, and restored its decision.

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Criticise specifically

A great deal of tribunal advocacy, especially on behalf of claimants, involves criticising the behaviour of someone else (normally the employer).

For example, in an unfair dismissal claim one might be arguing that the procedure used to dismiss somebody was unfair or that dismissal was not a reasonable response in the circumstances.

Criticism should always be specific rather than general.

Why is the procedure unfair? If it’s because the employee wasn’t told about the allegations before the disciplinary meeting, say that. ‘Mr Smith did not know anything of the case against him before the meeting on the 2nd February. Not only had he not been given the evidence on which Acme Ltd relied, he had not even been told he was being accused of the theft.’ is much more convincing than ‘The Respondent didn’t follow a fair procedure’.

If you can’t identify specifics, then seriously consider whether the criticism can be made to stick. I see this frequently with criticism of investigations. It’s always easy to say ‘The employer should have done more to investigate’. But unless you can identify some specific steps that they should have taken, a tribunal is unlikely to be convinced.

A similar principle applies in relation to giving evidence of things like harassment. Saying ‘My manager bullied me’ isn’t particularly helpful. It’s just applying a label to your manager’s behaviour. You need to be specific: ‘On 24th December my manager came into my office and started shouting at me. He said that I wasn’t working hard enough and that I was a disgrace to the company. He kept shouting for about five minutes, accusing me of being ‘a bloody lazy sod who wants something for nothing, before storming out and slamming the door’. At this point you might say ‘I felt bullied by his behaviour’, but it’s really unnecessary.

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Please help me run 26.2 miles on Sunday

If only that was literary possible. It would be great to be propelled around the London Marathon course by the good wishes of hundreds of Employment Tribunal Claims readers (not to mention it would undoubtedly improve my time).

But, even though it isn’t literally possible, it is figuratively possible. I’ll be running the marathon on behalf of the Free Representation Unit, where I work as Legal Officer, Employment. Since 1972, FRU has done what is says on the tin: provide representation in tribunals for people who can’t afford lawyers. We do this by working with law students, thereby providing them with invaluable experience. It’s a win-win for everyone involved, but particularly for the 500 or so client who we help every year.

To do this, however, we do need a lot of support from other people, including financial support. And, basically, the marathon is a good excuse to ask (I also like to think you might be moved by my impending discomfort). Every little helps — if every reader of the blog donated 50p, I’d smash my fundraising target.

If you would like to contribute, you can do so through justgiving at: https://www.justgiving.com/reed2015

Also, if you’d like to leave an encouraging comment here, please do so!

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A historic date: Cross-Party Consensus on Employment Tribunal Fees

“I’m a big fan of John Maynard Keynes,” said David Cameron at his surprise announcement about Employment Tribunal Reforms with Nick Clegg, Ed Miliband and Nigel Farage. He said ‘When the facts change, I change my mind. What do you do, sir?’ It’s clear that our policy on Employment Tribunal Fees was a bit of a wrong turn. We all thought there’d be a modest decrease in claims, mostly the weak or vexatious ones, and hard working people who had decent claims would be perfectly happy to rummage down the back of the sofa for £1,200, or borrow from relatives, or maybe do a little part-time prostitution or drug-dealing. But once my advisers showed me the Dunstan Graph I realised we’d got it wrong.”

“Now, I know we’re going into an election, but not everything has to be party political. We’re all on the side of hard working families and we all think that British Business deserves a level playing field where good employers don’t have to worry about unfair competition from rogue businesses who are breaking the law. None of us are in favour of people who break the law (unless they’re our mates, and very wealthy).”

“That’s why I’m delighted to announce that, whatever party wins the election, we intend to repeal Employment Tribunal Fees immediately. It’s just the right thing to do.”

Ed Miliband agreed: “The Labour Party was founded to represent workers, and we’re true to our roots. That’s why we’re determined to make sure workers can access their rights. Tribunal fees prevent people getting access to justice so they’ve got to go. Frankly, the worst possible thing for us to do at the moment would be to focus on meaningless changes to the law that can’t be practically enforced, glib soundbites or hate-mongering against the powerless. There’s a crisis here and it would be real betrayal of the Labour Movement for us to fail to meet it head on.”

Nick Clegg, answering questions about the previously mooted review of Employment Tribunals answered impatiently, “You need a review when it’s not clear what’s going, on or you’re not sure what to do about it. This isn’t like that. We introduced fees, and claims fell off a cliff. I don’t think anyone who knows anything about the situation thinks there’s any other reason for the decline in cases. We got it wrong, but we’re going to fix it.” Asked whether it was possible that ACAS Early Conciliation had anything to do with the decline in case numbers, he refused to answer, saying ‘I’m going to assume that’s a joke. Have you looked at the statistics?’

Nigel Farage said, “UKIP supports this reform. The working man needs access to employment tribunals, in particular to combat the terrible social problem that is discrimination against white middle-aged men who like beer. That’s Intersectionality.”

David Cameron had the last word: “This announcement is about the Employment Tribunal Fees specifically. But, to be totally honest with you, I’m worried about what’s been going on in the Ministry of Justice for this to have gone uncorrected. I’ll be checking that we haven’t done anything else that might have caused serious damage to access to justice.”

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Ticking the boxes

The ET rules require an application to the tribunal (the ET1 form) to be ‘accompanied’ by a fee or an application for remission; but the online claim mechanism doesn’t provide any method of applying for remission at the same time – you have to send the remission application by post.

We noted in the 4th edition of ET Claims that this was a bit of a puzzle, and recommended posting the remission application the same day if possible – but in any event making sure it arrives within 7 days of the online claim.

This point was considered by the EAT In Deangate Ltd v Hatley (thanks to Daniel Barnett, as ever for the alert). Three claimants presented their claims online on the 2nd last day before the time limit expired. They hadn’t sent applications for remission with their claims – because there was no way for them to do so. But they had ticked the box saying they intended to apply for remission, and their applications were received within 7 days.

The Respondent tried arguing that the claims should be rejected because they weren’t ‘accompanied’ by the fee. Sensibly, the EAT was having none of it: ticking the ‘yes’ box counted as an application in the circumstances, even if an incomplete one; and it was reasonable to allow the claimants a further 7 days to complete their application

So our advice stands: send your remission application on the same day if at all possible, but in any event make sure it arrives within 7 days of your online ET1. If you leave it 8 days, the Respondent may well try this argument again – and might win it this time.

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Hold fast to your ET1

Your ET1 is the form you complete to start your claim — also known as the claim form.

It’s a vitally important document and it’s important you make sure you keep a copy of it. If you’re submitting online, you can do this by saving it to PDF when submit it electronically. If you post it, you’ll need to take a photocopy.

This all sounds very obvious, but I’m encountered a surprising number of cases where people have sent off their ET1, without holding onto a copy. I suspect the problem is that the wider world of the internet has taught us all that we’re bound to receive a confirmation email with the form attached. Unfortunately you don’t.

If you don’t keep a copy, contact the tribunal and ask for one.

On no account try to reproduce your original ET1 by filling it in again from memory. This will a) not work (you’ll never remember it exactly) and b) risks looking as if you’re trying to pull a fast one somehow.

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Do Claimants ever win in the Employment Tribunal?

Short version: Yes, they do.

Our post Is the tribunal system corrupt? now has over 100 comments. Most commentators disagree with our conclusion that the tribunal isn’t corrupt — and our wider opinion that, although undoubtedly flawed and imperfect, the system is basically fit for purpose.

We stand by our view. Yes, tribunals and judges do get it wrong sometimes. And, yes, there are some bad bits of law. But that doesn’t mean it’s evil or corrupt. It’s just that not much that human beings do is perfect.

Of course this is easy for us to say. There are some heartbreaking comments on the corruption post and we’re not trying to minimise or discount the emotional impact a bad tribunal experience can have. We’ve both seen too many of our own clients go through the mill for that. Both of us have on occasion become pretty angry about the way our clients – or sometimes parties, respondents or witnesses on the other side – have been treated.

Yet we are both convinced — and bear in mind that between us we’ve seen some thousands of cases — that there is no corruption, no general unreasoning hostility to claimants and, for that matter, no endemic incompetence from judges and members.

We’re far from uncritical fans of the system. But deciding that the tribunal is corrupt is a misdiagnosis. There are many problems — but that is not one of them.

In this context, it’s worth looking at the publicly available statistics on the outcome of tribunal claims. We’ve taken the following from outcomes of all types of claims in the last full year available 2013-14.

Most claims don’t actually reach a final tribunal hearing.

20%, one in five, is settled via ACAS. 53%, just over half, are withdrawn by the claimant. Most of these withdrawals, but not all, represent some form of non-ACAS settlement. So, in somewhere around two thirds of cases, claimants walk away with a negotiated settlement.

Only 3% of claimants obtain default judgment — judgment entered in their favour because the respondent failed to reply to the claim.

Rather more, 8%, have their claims struck out without a hearing. In the vast majority of cases this is because of failing to obey the tribunal’s case-management orders.

Only 14% of cases are determined at a hearing by the tribunal. In 2013-14 the results were split precisely down the middle. Half were won by the Claimant and half by the respondent.

Finally, a matter of housekeeping. The comments on this post, and on ‘Is the tribunal system corrupt?’ will stay open and people are welcome to express their views and discuss their experiences here. We do read every comment. And we won’t moderate comments unless they seem to us raise legal issues, such as libel or threats of – or incitement to – any kind of crime. We probably won’t get involved in the discussion, partly for issues of time, but mostly because we’ve said what we’ve got to say in these posts.

But we’re also going to try to keep discussions of these matters to the posts devoted to them. So, if you want to discuss tribunal corruption, incompetence or malfeasance, this is the place to do it. Off-topic comments on other posts are likely to be deleted from now on.

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Make sure you’re answering the real point

File this under advice that sounds like the bloody obvious, but can be surprisingly hard to follow.

During litigation, the other side will make all sorts of arguments. Generally, you’ll be predisposed to dismiss them as dishonest, daft or just mad. That’s a natural response to the adversarial nature of tribunal litigation — even if you’re a supposedly cool and emotionally-detached lawyer.

The trouble is that this means it’s all too easy to misunderstand what your opponent is saying, either because subconsciously you want to make it easier to dismiss or just because you reject it out of hand rather than thinking about it properly.

But you need to fully understand the points that the other side is making, so that you can counter them effectively. So you must do your best to overcome your first instincts.

Probably the most important part of doing this is simply to recognise the possibility.

But one other trick is, when you get an important document from the other side (such as the ET3 or a Notice of Appeal) read it three times. First just to see what it says. Then read it as sympathetically you can. Try to imagine that you’re someone who wants to agree with the Respondent. How would you understand what they’re saying? Finally, read it critically, with an eye to how you’ll respond to their arguments.

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Don’t conciliate too early

Before starting most kinds of proceedings in the employment tribunal, you have to notify ACAS of your potential claim and go through ‘early conciliation.’ Section 18A(1) of the Employment Tribunals Act 1996 says:

Before a person (“the prospective claimant”) presents an application to institute relevant proceedings relating to any matter, the prospective claimant must provide to ACAS prescribed information, in the prescribed manner, about that matter.

The information you have to provide to ACAS is minimal: your name and contact details, your employer’s name and contact details, your dates of employment, and the date on which the event you want to complain about took place.

You don’t have to say what kind of claim you are thinking of making to the employment tribunal. That’s deliberate. Previous rules that said you had to raise a grievance before complaining to a tribunal got bogged down in endless arguments about whether the exact claim that the claimant had brought to the ET had been made the subject of a previous grievance. The ‘early conciliation’ regime is supposed to avoid all that, by just making you notify ACAS of a potential claim without identifying it.

But there are still some potential problem areas. One relates to ‘matters’ that only arise after you have sent in an early conciliation form. Suppose you complain about discrimination, and start early conciliation; and then you suffer victimisation because of the complaint. Can you complain to a tribunal about the original discrimination and the later victimisation without notifying ACAS again? Probably not. Until and unless the EAT says it’s not necessary, go through early conciliation again to be on the safe side.

If you’re thinking of complaining of constructive dismissal, bear in mind that there’s no ‘dismissal’ until you’ve resigned. So don’t contact ACAS until after that point. If you’ve given notice, wait until your notice period has run its course and you’ve actually finished work. Otherwise the tribunal may say it doesn’t have jurisdiction to hear your complaint because the ‘matter’ you are complaining about is dismissal, and you can’t have presented information to ACAS about ‘that matter’ as required by section 18A at a time when you hadn’t been dismissed.

If you have a current claim, and you notified ACAS before you resigned, you can do one of two things. You can carry on and hope for the best: the tribunal may accept that the ‘matter’ in question was whatever your employer did that prompted your resignation. Or, if you’re still in time for a fresh claim (in other words, if it’s less than 3 months since your employment ended), you can withdraw your claim, go through early conciliation again; and then present a fresh claim. If you decide to withdraw your claim, it’s important to make sure the tribunal doesn’t issue a judgment dismissing it: if it does, you won’t be able to bring a fresh claim. So your letter telling the tribunal you want to withdraw the claim should explain that you want to commence the same claim again after going through Early Conciliation, and asking the tribunal to exercise its discretion under rule 52 not to dismiss your original claim.

The choice isn’t an entirely easy one. If you decide to carry on and hope for the best, you may lose your claim on a technicality; but if you withdraw and start again, then (unless you’re entitled to remission) you’ll have to pay another issue fee.

If it’s more than 3 months since the end of your employment, but you started early conciliation before you resigned, you’re not in a position to commence a fresh claim. You’ll have to carry on and hope for the best. Don’t despair: this is a problem that might defeat your claim, not one that necessarily will.