No. It does not.

There has never been much doubt about this. Any uncertainty has been put to rest by the EAT in Tao Herbs & Acupuncture Ltd v Jin.

Judge McMullen Q.C. said:

19. The third ground advanced in this application relates to section 123. It is contended that the award to the Claimant was not just and equitable because it was substantial. I reject this as a proposition of law. In the calculation of loss for unfair dismissal the prime consideration is the loss suffered by the Claimant attributable to the action of the employer. The vehicle for the submission today is that if this award has to be paid, the business will go into liquidation.

20. That is not the correct approach to the assessment of an award for unfair dismissal, which does not pay attention to the ability of the employer to pay. There are places in the employment protection canon where ability to pay is a feature (see for example the costs regime). But in the assessment of damages for a statutory tort, the possibility that the employer will be in difficulty paying an award is not a relevant consideration.

This does not add significantly to our legal understanding, but it is a clear and concise statement of principle. It might be useful, therefore, in convincing a stubborn respondent that this is not a line worth taking.

One word of caution: while ability to pay will not change the tribunal’s decision there is, unfortunately, a gap between obtaining a tribunal decision and getting the money. This needs to be considered when making decisions about litigation.

One of the things you do in a tribunal hearing is read how you’re coming over to the panel. Then you can adjust your approach accordingly. If they are with you on an issue, you may want to quit while you’re ahead. If they’re not you may want to redouble your efforts (or move onto a new point). The ideal is to spend the minimum time on matters where the tribunal is already convinced (or cannot be convinced) to focus on the areas where you may change their minds.

The problem with this is that it is easy to misread the tribunal.

The most damaging result of this is that you move briskly over an area – thinking that the tribunal agrees with you – when you should be dealing with it in detail. This leads to the horrible sinking feeling when you later realise that the tribunal was not convinced at all.

Of course, it is equally possible to speak on length on something that the tribunal is already convinced of. But this tends to be less damaging. This is partly because over-convincing someone of something is normally better than failing to to convince them at all. It is also because the tribunal is more likely to step in to move you on from a point they agree with than to ask you to go back to a point that they disagree with.

There is no absolute solution to this problem. You could simply deal with every point in exhaustive detail, regardless of your reading of the tribunal. But this is likely to do do more harm than good. A concise, punchy submission focused on the areas that the tribunal is in doubt, will be more convincing than anything approaching exhaustiveness.

Like many areas of advocacy, the only thing to do is to be aware of the potential problem and aim at a happy medium. Remember that, in the absence of a clear steer, it is hard to be certain what the tribunal is thinking. Be prepared to err on the side of caution, particularly on an important point. But try not to over-correct and risk boring the tribunal, losing momentum and obscuring your best points.

One of the things the employment tribunal can do if you win your unfair dismissal case is order your employer to give you back your old job (‘reinstatement’) or a different job (‘re-engagement’). The term ‘re-employment’ is commonly used to refer to reinstatement and re-engagement together.

These orders are pretty rare – probably rarer than they should be. See in general this previous post on the subject.

One point to bear in mind if you are asking for re-employment is the question when your employer is ordered to re-employ you. There are two reasons why this can matter:

Practicability

If your employer fails to comply with an order for reinstatement or re-engagement, you will be entitled to an additional award of compensation unless they can show that it wasn’t practicable to comply with the order. If your employer is ordered to reinstate you too quickly, it may make it easier for them to show that it wasn’t practicable for them to comply. So think about what they will actually have to do in order to give you your job back or (more likely) find you another one, and make sure the tribunal gives them plenty of time to do it.

Back pay

If an order for reinstatement or re-engagement is made but not complied with, the cap on compensation for unfair dismissal allowed to be exceeded by however much it takes to ensure that you are fully compensated for the period of time between dismissal and the date on which you should have been re-employed. The later that date is, the longer the period for which you get guaranteed compensation notwithstanding the cap. If your case has taken a long time to come on for hearing, or you were a fairly high earner, this can make a difference to the amount of money you get.

There are various ways of getting legal advice and representation without having to pay for it: see generally ‘Getting advice. But lots of people won’t have access to any of these, and there’s a large gap between being on such a low income that you have a chance of free assistance from a legal charity, and being so well off that you can easily afford to pay for legal representation at an employment tribunal hearing and in the run-up to it.

How much it will cost you depends on a lot of different variables: how complicated your case is, how much work you are able to do yourself (and how well you can do it), who you instruct, and so on.

But it will cost a lot. Very broadly speaking, you can probably easily afford to pay for legal representation if you can easily afford to buy a brand new sports car; otherwise not. Or to put it another way: lots of legal expenses insurance policies limit cover to £50,000. For a reasonably straightforward case, you shouldn’t need more than that; but if your case is long and complicated, or goes through several appeals, it can easily get used up.

Unfortunately, the more complicated your case is, the greater your need of professional assistance in running it; but also, the more expensive that assistance is likely to be. The result is that if you are trying to bring a complex claim against an employer or former employer, and you don’t have any source of free legal advice, you face a thoroughly unattractive choice. Either you try to run the case yourself, which will be difficult, and intensely stressful. Or you spend a great deal of money on lawyers, for an uncertain outcome – and at a time when your finances are likely to be under strain anyway. Good lawyers will improve your chances of success, but you can never be certain of the outcome of a case however good your lawyers.

A related problem is that if your case is complicated, you won’t even be able to get advice from a lawyer on whether they think your case is worth a significant investment without paying quite a lot for that advice. That’s because it takes time to read the papers, do any necessary research and form a view. So you may spend several thousand pounds at an early stage, only to be advised to drop your case on the grounds that it will probably fail anyway.

There’s no way around this: you will have to make hard decisions. Legal services are expensive, and bad news costs as much as good. The main thing is to keep a clear-eyed view of what you are trying to achieve and why, and get as complete a picture as you can as early as you can on what your case is likely to cost you in total.

Above all, resist the gambling trap – that is, the tendency to feel that once you’ve spent a significant sum on your case, you are in too deep to cut your losses.

In principle, as long as you make your meaning reasonably clear, details of grammar, punctuation and spelling oughtn’t to matter to how the tribunal sees your case.

But things are not always as they ought to be. If you’re an adviser or representative, some employment judges and/or tribunal members will think the less of you if you get these things wrong, and that can affect the attention they pay to what you say. Let’s not get into an argument about whether ‘wrong’ has any real meaning here: it has a meaning in the heads of some at least of the people who may be making decisions about your case. That’s real enough to matter. It probably mostly boils down to snobbery, in fact.

(If you’re a claimant rather than a claimant’s representative, this post isn’t really for you: tribunals will be much more tolerant of what they see as mistakes, because you’re not holding yourself as any kind of an expert.)

So here are a few common errors to avoid.

Split infinitives

The infinitive is the form of the verb that goes ‘to go,’ ‘to do,’ ‘to litigate’ etc. The sin in question is putting anything at all between the ‘to’ and the main bit of the verb; as in ‘to boldly go.’ There are scholarly arguments to be had about whether this is really an error in English or not, but quite a lot of people have been taught that it is.

Criterion/ criteria

The singular is ‘criterion.’ Not many people know that – but those who do tend to care disproportionately. So if you speak of ‘a criteria’ you may mean either ‘a set of criteria’ or ‘a criterion.’ ‘A criteria’ is like ‘a mice’ or ‘a children.’ One criterion; several criteria. (Some will also wince at ‘data’ used as a singular, though I don’t think I’ve ever heard anyone say ‘datum’ meaning a single piece of information. As for hoi polloi – just don’t go there: you’ll annoy someone however you use the expression.)

Practise/ practice

Practise is the verb, practice is the noun. So for example, a lawyer may practise as a member of a practice.

Apostrophes

Apostrophes are notorious, but if you stick to these four rules you’ll mostly be ok:

Example

the judge’s wigs’ fleas’ legs: one judge, two or more wigs, many fleas (well – more than one anyway); and 6n legs, where n is the number of fleas.

If an appeal is made to the EAT, they will notify the other side. This, however, is likely to take a little time, because the appeal will have to be processed by the staff there.

It is common to send a copy of their appeal to the other side at the same time at lodging it with the EAT. There is no requirement to do this, but it’s normally a good idea, since scrupulous good manners do no harm.

There are, however, circumstances when you might want to hold off. For example, if there is a chance that the Respondent will pay an existing award before learning of your appeal to increase it, but will become reluctant once they realise that an appeal is being made, you might want to put off the point at which they will learn of it. This is a tad ruthless, but perfectly within the rules.

The flip side of this is that, if you’re making decisions post-tribunal, you shouldn’t assume that the other side hasn’t appealed, just from their silence. If its important to you, ring the EAT who will be able to tell you whether an appeal has been received.

When you arrive at the tribunal, it’s normal to introduce yourself to the other side. Often there is something specific to discuss – last minute negotiations, late evidence, a postponement request or similar. Even if there is not, it is sensible to check in with them, if only because they may have something specific to deal with.

If you don’t know the other side’s representative, the standard approach is to put your head round the door of the Respondent’s waiting room and say, in a carrying tone, ‘Is there anyone here for Smith v Hogan?’

It’s best to use both parties’ names. It gives your opponent two chances to recognise the case and, if you (or your opponent) has got the pronunciation of one name wrong, they should recognise the other one. This sounds a bit silly, but bear in mind that your opponent may be busy reading something in the bundle, on the phone to their solicitor, or otherwise distracted.

If your opponent is there, she should stand up and introduce herself. When both sides are represented, the representatives will then normally step outside the waiting room to talk.

Quite often, a represented party will have arrived before their lawyer. In general, you shouldn’t go into the detail of a case with a represented party. It’s perfectly all right to say something like: ‘We’ll be wanting to rely on a few additional documents – here are copies for you. Perhaps you could ask your lawyer to come speak to me about this when he arrives?’ But a detailed discussion of the case or negotiations should wait for the lawyer to arrive.

Tribunals have power, in certain limited circumstances, to order your employer to continue your employment until your unfair dismissal claim has been heard. This is called ‘interim relief.’ The power isn’t much used, but it is potentially very valuable.

When you can get it

The three key facts about interim relief are:

What it means

If you get it, you are either reinstated into your old job, or re-engaged in a comparable job, or else (which is probably the most likely outcome) your employer is simply ordered to carry on paying you in an arrangement rather like suspension on full pay. Claims can take many months and sometimes a year or more to come to a hearing, so getting the tribunal to order your employer to give you your job back meanwhile – or at least carry on paying you – could make a big difference.

Practicalities

Because of the very short deadline for claiming interim relief, applying for it means working fast. The usual warnings about the cost of instructing lawyers are relevant, only more so: urgent work tends to be more expensive than non-urgent work; and your choice of lawyer is likely to be more restricted than if you had a couple of months to play with.

Time for making a considered decision about whether or not to go ahead with the application at all will be squeezed, too: you and your adviser will be making decisions under considerable pressure of time with less information and less thought than you’d like. The result could be that you spend a lot of money making an urgent application that you’d actually have been advised not to pursue if there had been more time to consider its strength.

Getting free representation in time for an application for interim relief will be even more difficult. Lawyers in Citizens Advice Bureaux and law centres are almost always rushed off their feet: even if you’re lucky enough to get help, it can easily take several weeks just to get an appointment.

This all means that if you want to try for interim relief, you may not have much realistic option other than to make the application yourself.

There’s no special form for applying for interim relief: you’ll need to complete an ET1 form in the usual way (only faster), and write in box 6.1 under ‘What compensation or remedy are you seeking?’

interim relief under section 128 of the ERA 1996

Because applications are quite rare, and tribunal staff may not be looking out for them, it might also be an idea to write in box 7.1 something like:

This claim includes an application for interim relief under section 128 of ERA 1996, so a PHR to determine that application will be required as soon as practicable.

The hearing

The tribunal will conduct a PHR (pre-hearing review) to determine the application. It has to do this ‘as soon as practicable’ after receiving it. That means you can’t relax after rushing to get your ET1 presented during the first 7 days after dismissal: you’ll need to be ready for the hearing of the application very soon after that.

At the PHR, the tribunal can consider oral and documentary evidence. Your job is to persuade the tribunal that your complaint that you have been dismissed for one of the prohibited reasons is ‘likely’ to be successful at a full hearing. Because the application is supposed to take place so quickly, you can’t expect the tribunal to consider a large volume of evidence. Keep both oral and documentary evidence to a minimum: select your very best points, and focus on them; and if you get the chance to cross-examine any witnesses on the other side, keep that short too. Apart from anything else, you don’t want to give them a practice run at answering all your questions before the main hearing. If your story is long and complicated, you are unlikely to succeed in this application: see the EAT’s judgment in Raja v Secretary of State for Justice. The application is probably only worth making if it’s pretty obvious that you’ve been dismissed for whistle-blowing or one of the other prohibited reasons.

Acknowledgment

This post was inspired by a useful article on the same subject by Stephen Musgrave of Bird & Bird in the Employment Lawyers Association Briefing. You can read his article – reproduced by kind permission of the author and ELA – here.

Any time, but some times are better than others.

Soon

The sooner you settle your case, the less it will have cost you. That’s true whether or not you’re paying anything for representation, because the emotional costs of running a case are high even if you’re getting free representation or (and especially) if you’re representing yourself. If you settle your case for £10,000 now, having spent £1,000 in legal costs, that’s £4,000 better than settling it for £20,000 in a few months having spent £15,000 on it. Once you take into account the emotional costs, it’s better than settling it for £20,000 in a few months having spent £11,000, too.

When the other side is vulnerable

Suppose the other side was hoping to get rid of the case at a 1 or 2-day Pre-Hearing Review on the grounds that you claimed too late (for instance), but the tribunal has just confirmed that the case can go ahead, and listed it for 10 days in a few months’ time. You’re in a strong position at this point: the other side is now facing a longer hearing and a lot of additional work and legal fees. Having been disappointed of their hope to get rid of the case one way, they may be more open to the suggestion that they can get rid of it another way: by paying you some money.

When the other side has work to do

If you’ve just sent the other side a long request for additional information and/or documents, for example, or the time is coming close when they will have to start work on their witness statements, this may be a good moment: they can avoid doing that work by settling the case. (But don’t read this as a suggestion that you should deliberately create unnecessary work for the other side: that will annoy the tribunal a lot if they get a whiff of it, and you could be at risk of a costs order for unreasonable conduct of the proceedings.)

I posted a few days ago about the benefit of making it easy for people to do things you want them to do. The EAT in one of its standard letters sets a nearly perfect example of how not to make it easy:

Your attention is drawn to Employment Appeal Practice Direction 2008 paragraphs 6, 13 and 14 concerning the filing of bundles, skeleton arguments and authorities for the forthcoming hearing. Failure to file the documents in accordance with the directions may result in you being required to appear before the President or another Judge of the EAT to explain your non compliance.

There are a lot of detailed instructions in the Practice Direction about what has to go in bundles, skeletons and lists of authorities and how they are to be presented, but the important and urgent thing you have to know – so you can put it in your diary – is what the deadlines are for getting these documents in. Clearly the EAT feels quite strongly about parties doing these things at the proper times, or the instructions wouldn’t be backed by such a blood-curdling threat. But it would be much more likely to get what it wanted if its standard letter said instead something like:

Four copies of your agreed bundle of documents for the hearing must be lodged with the EAT by [date]; 4 copies each of the skeleton arguments are due by [date]; and 4 copies of an agreed authorities bundle must be lodged by [date]. You will find detailed instructions about these things at paragraphs 6, 13 and 14 of the Practice Direction (copy enclosed).