In Aptuit v Kennedy the EAT has provided guidance on two important issues relating to the Statutory Dismissal and Disciplinary Procedure. Firstly, the process by which the employee must be informed of her right to appeal, and, secondly, how the uplift to the award should be calculated.

Right to appeal

The EAT concluded that there was no need for an employee to be informed of her right to appeal in writing, para. 35 & 44. A verbal statement that an appeal was available was sufficient. Further, neither a oral or written statement needed to be in any particular form. All that was necessary was that the right to appeal was communicated in some way.

Lady Justice Smith did not deal with precisely when the communication of the right to appeal must be made. It seems arguable that the requirement could be satisfied if the right to appeal is laid out in a generally available disciplinary procedure; particularly if the employee’s attention is drawn to the procedure at some stage of the process. This argument remains unresolved.

Uplift

Where the employer has failed to follow the disciplinary procedure the claimant’s award will be increased by 10%, save in exceptional circumstances. The tribunal has a discretion to increase this uplift up to 50%. There has been little guidance from the EAT as to how this is decision is to be made. Aptuit sheds some light on it, but stops well short of providing definitive guidance.

What Aptuit does make clear is that the only relevant factors when making this decision are those relating to the failure to follow the procedure, para.47. The general merits or circumstances of the case are not relevant. Claimants arguing for an uplift, therefore, should focus their submissions on the extent of the failure and the reasons for the failure (preferably showing that there was no good reason for it).

Aptuit v Kennedy

Lawyers are notorious for their use of jargon, or ‘legalese’ as it is sometimes known in this context.

There are really two reasons for lawyers’ use of jargon, one good and one bad. The good reason is that law, like any other complex technical area, requires its own language. Without some specialised vocabulary communication would be long-winded at best, impossible at worst. The bad reason is that lawyers, like other technical experts, use their jargon to make themselves seem cleverer, more important and generally more marvellous than they actually are. The strategy is the same as that of the sharp mechanic who charges for a wholly unnecessary repair by referring mysteriously to fly-wheel sprocket disjunctions.

Non-lawyers use legal jargon for much the same reasons. Many HR managers, for example, are highly familiar with concepts like indirect discrimination or TUPE transfers and will use the appropriate language. And many dismissing employers will seek to bolster their decision (and themselves) by reeling off a string of jargon that they may or may not understand.

However, there is a common third reason that non-lawyers slip into legalese: the open sesame mistake.¹

The open sesame mistake treats the jargon not as a method of communication, but as a magical incantation. People who fall into it see the tribunal not as a (more or less) rational entity that needs to be persuaded, but a genie that cam be commanded by anyone who knows the magic words. They struggle in vain to find the right combination of Latin, legislation and case references that will spur the genie into action.

The open sesame mistake is common, because to many lay people the tribunal’s actions seem incomprehensible. A lawyer utters a series of obscure phrases and the tribunal agrees with him. They talk to the Chairman in plain English and nothing happens (or worse, the tribunal becomes annoyed). It is only natural to think that the difference is in the language used.

This is to misunderstand what is happening. Despite the system’s inevitable shortcomings, what the tribunal wants to do is understand the parties’ situation and apply the law to it. The way to succeed in tribunal is to communicate with the members of the panel. Advocacy is probably 80% just getting the tribunal to understand what your case is, and only 20% convincing them that you are right. This is because until the tribunal understands your case, they will not be able to agree with it.

In so far as technical language helps the tribunal understand you, it is useful; but there is simply no magic sequence of words that will ensure success. A party who expresses themselves clearly, but without technical language (and has a good point to make) will succeed over one who speaks obscure legalese (and inaccurate legalese is even worse).

If the tribunal is siding with the person speaking legal jargon it is either because they have the stronger point (in which case there is little you can do) or because you are failing to communicate your point effectively.² The solution to this is to communicate more effectively. This might involve mastering and deploying technical language, but it emphatically does not involve scattering a random selection of half-remembered words through your language in the hope that something will catch the tribunal’s eye.

A key sign that you may be falling into this mistake is an excessive concern with the ‘right’ way of saying, writing or doing something. In most cases there is no single ‘right way’, but any number of possible ways.

1. a phrase coined by Kermit Roosevelt in In the Shadow of the Law
2. Admittedly, sometimes it is because the tribunal is wrong

Respondents can display all sorts of undesirable behaviour during a case. One of the more difficult to handle is an attempt to make a romantic approach to a representative. This is behaviour usually, although not always, restricted to litigants in person. It is also usually, but not always a male litigant addressing a female representative.

This will always be inappropriate and, often, upsetting for the representative. The sensible course is to tell the respondent, preferably in writing, that the behaviour is inappropriate and must cease. It should also be pointed out that harassment of a representative is unreasonable conduct of the litigation and may lead to costs against the respondent, or even their response being struck out, if it is brought to the attention of the tribunal. The tribunal is particularly likely to take firm action is the behaviour continues after an approach was firmly rebuffed.

If a pass is made by a solicitor or barrister you should consider reporting them to their professional body.

Technically, there is no dress code for the tribunal (it is, of course, vital you wear something). Unlike many civil courts, you will not see advocates in wig, gown and bands.

Nevertheless, hearings are formal events and it is sensible for both claimants and representatives to dress accordingly. This has two advantages. Firstly, while no tribunal is going to decide against a claimant because he’s wearing a t-shirt or because his advisor isn’t wearing a tie, hearings are about how the parties come across. Human nature being what it is, dress will be a part of this. It is likely to be a small part – but there is no need to give away points on a small issue. This applies equally to representatives as to parties. Secondly, since the tribunal will be wearing a suit and so, in all probability, will the respondent’s team, it may give the claimant or his representative a small boost in confidence to be similarly dressed.

Recommended dress for tribunals therefore, particularly for representatives, is suit and tie for men and equivalent clothing for women. In most cases, smart casual clothing will give much the same effect.

Anything likely to be seen as eccentric should be avoided. This includes a clerical collar, unless the Respondent is the Church; military uniform and a scarlet lined cape.¹

1. Two of these examples are drawn from the authors’ experience

Text messages create particular evidential problems, because unlike emails and Instant Messenger conversations they cannot normally be printed out. This makes it difficult to present them in evidence.

The tribunal will not be impressed by being presented with a phone and asked to scroll through the messages.

The sensible course is to transcribe the messages onto a single document, with details of date, time, sender and recipient; then agree this with the respondent. If the respondent refuses to agree, the transcript and the phone can then be passed to the tribunal to confirm the accuracy of the record.

Some solicitors add tabbed dividers to bundles. A small number of dividers – used to show, for example, where the pleadings end and the contemporary documents begin, and then where the contemporary documents end and and the correspondence between the parties begins – can be quite helpful in navigating a bundle during the hearing. The more expensive solicitors tend to put in a divider for each document. This is not only pointless: it is a significant obstacle to the smooth conduct of the hearing. The bundle gets fatter, which means everyone has to carry more paper around. The bundle is harder to flag clearly with multi-coloured sticky notes, because the tabs from the dividers get in the way. And worst of all, it gives representatives, witnesses and the tribunal two numbers to choose from. The resulting dialogue goes something like this:

Counsel: Please turn to page 76. This is an email from James Baxter to Fiona Marks of 25 October 2006.
Witness: Yes.
Wing member: 76 isn’t an email in my bundle, it’s a long service award.
Counsel: Er….
Chairman: My page 76 is an email. [Looks over his colleague’s shoulder.] Oh I see, you’ve got tab 76, you want page 76. Perhaps Miss Campbell it would be easier if you referred us to tab numbers not page numbers?
Counsel: of course. [Curses inwardly: she has cross-referenced her bundle to page numbers, so she will have to pause and find each page before she knows which tab to announce.]
….
[The following day, having added tab numbers to her cross-examination notes]
Counsel: Please turn to tab 45. These are your own hand-written notes of the meeting?
Witness [baffled]: er… no.
Counsel: Who do you say wrote them then?
Witness: Er… It says at the top ‘Emma Wilkes.’
Counsel [now also baffled]: Where does it say that? Ah, we may be at cross purposes. What page have you got?
Witness: 45
Counsel: Can you find tab 45 in the second volume. Page 367.

This game can be played with each witness in turn, but it does not get any more entertaining.

Difficulties arise in tribunal if a representative believes that a witness has been vitally damaged under cross-examination, but the client does not. The representative may believe that the damage is sufficient to make settlement or withdrawal sensible, or even necessary, while the client confidently wants to press on.

The situation is particularly difficult if the witness who has come unstuck is the client themselves.

In such circumstances, it is vital that the representative give clear advice about what has happened and what the affect has been. If the client has inadvertently conceded the majority of his case, he needs to be told. More than that, he needs to be told precisely what he has conceded and why it is important. If his evidence has been fundamentally unconvincing he should be told. He also needs to be told what his options are. If there is a risk that costs might be awarded against him he must be advised of that as well. This is one of the many situations that requires both tact and firmness on the part of the representative.

Once that advice has been given, however, the decision is the client’s and the representative must accept his decision.¹ It is his case and the decision to settle or withdraw is his.

It should be noted, however, that this advice is only applicable to situations where the case is coming badly apart and some sort of serious corrective action is necessary. In most cases witnesses will answer some questions well and some less well. There is no need to carry out an exhaustive post-mortem of every witness. Indeed, it is likely to be detrimental, to the client and representatives nerves if nothing else, to do so.

1. Except in the rare cases that the representative is professionally embarrassed and must cease acting. And even then the client may continue alone.

New advocates are often told not to say ‘umm’. This is good advice.¹ Unfortunately, many replace their ‘umms’ with similar habits. It is common for representatives to start sentences with a throat clearing phrase such as:

• In my submission…
• I suggest that.
• What I say is…

Such phrases add nothing and will only distract from what you are saying. At worse they might become an annoying tick.

A particularly dangerous phrase is ‘My client’s case is…’ or ‘My client’s instructions are…’. The effect, if not the intention, is to separate yourself from your client. Instead of saying ‘This is what has happened’, you are saying ‘This person says that this is what happened, but I’m not sure’. This is not good advocacy.

Oddly, throat clearing phrases are as common in written submissions as they are in oral advocacy. They should be eliminated there too.

1. Although the odd ‘umm’ does no harm and there is no need to become neurotic about it

One of the important techniques in cross-examination is leading up to an important point with the right preliminary questions. The key is to place the witness in a position from which it is difficult to give the ‘wrong’ answer.

For example:

Sir Humphrey: Mr. Woolley, are you worried about the number of young people without jobs?
Bernard : Yes
Sir Humphrey: Are you worried about the rise in crime among teenagers?
Bernard : Yes
Sir Humphrey: Do you think there is a lack of discipline in our Comprehensive schools?
Bernard : Yes
Sir Humphrey: Do you think young people welcome some authority and leadership in their lives?
Bernard : Yes
Sir Humphrey: Do you think they respond to a challenge?
Bernard : Yes
Sir Humphrey: Would you be in favour of reintroducing National Service?
Bernard : Oh…well, I suppose I might be.
Sir Humphrey: Yes or no?
Bernard : Yes

Or if you want the opposite answer:

Sir Humphrey: Mr. , are you worried about the danger of war?
Bernard : Yes
Sir Humphrey: Are you worried about the growth of armaments?
Bernard : Yes
Sir Humphrey: Do you think there is a danger in giving young people guns and teaching them how to kill?
Bernard : Yes
Sir Humphrey: Do you think it is wrong to force people to take up arms against their will?
Bernard : Yes
Sir Humphrey: Would you oppose the reintroduction of National Service?
Bernard : Yes

Even if the witness is willing to stick to their guns, if they have been pinned down properly the damage will be done. A witness who has accepted that they are responsible for London sales; that their bonus is based on those sales; that Stuff Ltd is a very important client and that Ms Jones was responsible for their buying decision will only appear foolish if they try to deny that they have been willing to go to great lengths not to offend Ms Jones.

Occasionally, it will be useful to know whether the tribunal were taken to a particular document in the bundle. This may become important if, on appeal or review, there is doubt about whether evidence was put before them.

It is worth developing a habit of putting a cross in the top right-hand corner of every document the tribunal is referred to. That way, you can easily record what has been placed in evidence.

In some cases, more advanced systems may be useful. If it is important to make sure that certain witnesses are all taken through certain documents, you might mark each document with the witness’s initials as you cross-examine on it.