Estimating the length of the hearing is difficult, because it depends on so many different factors, only some of which will be in your control. This is discussed in some detail in the book at paragraphs 8.3-8.7. One further point to bear in mind is that you may need to revise your view in the course of preparing the case.

The point at which it is most likely to become clear that the case has not been given long enough is when the witness statements are exchanged. If these are much longer than expected, you should think about whether you will need extra time to complete the hearing. Unfortunately, witness statements are rarely exchanged more than a couple of weeks before the hearing. Of course, if the reason why you are going to need more time is that your own statement is very long, you will have more notice of that. In either event, apply for the case to be re-listed as soon as you possibly can once you have realised that you need to. Explain in your letter what has changed since you agreed the original listing.

The second edition of Employment Tribunal Claims: tactics & precedents by Naomi Cunningham and Michael Reed is now available.

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There is a strict rule that a witness who has started giving her evidence must not speak to anyone else about the case until her evidence has finished. Very often there will be a short morning or afternoon break or a lunch break, or even an overnight adjournment, in the course of one particular witness’s evidence. If this happens to you, in theory you can spend the time with your own side as long as you keep conversation to other topics. In practice, everyone’s head will be full of the case and it will be extremely difficult to think of anything else to talk about; much the best course is simply to avoid witnesses and advisers on your side completely until you have finished your evidence.

Respondents will sometimes want to include a disclaimer in an agreed reference. Such a disclaimer will say something to the effect of:

This reference is given in good faith, but without legal liability for actions taken on the basis of the information provided.

The employee may, understandably, feel that this will undermine an otherwise good reference.

To some extent this is true. A disclaimer does take some of the gleam from even the most glowing reference. Despite this, disclaimers are common and, like short, factual references, are more likely to be seen as part of the ex-employer’s standard practice than an indication of a problem. If an employer insists on a disclaimer, it should not be viewed as a deal breaker.

It is usually important – and always desirable – for the tribunal to have a clear idea what it was that the claimant was employed to do. This can be surprisingly difficult: people tend to assume that their job title is sufficient information. If the job title is ‘French teacher’ or ‘train driver,’ they are probably right. If it is ‘External Account Manager’ or ‘Director of Operations,’ it will need some explanation. Some witnesses, asked what their job involved, will make noises like ‘I was responsible for all operational aspects of the company’s third and fourth tier ventures,’ and find it hard to grasp that this is not intelligible. It is important, when drafting a witness statement, to persist until you know what the claimant was employed to do and why it mattered, and then write that down in the witness statement in a way that will make the tribunal understand it too. Ultimately it may be necessary to ask questions like: ‘Tell me about your typical working day. You arrive at the office, make a cup of tea, sit down at your desk, check your email – what do you do next?’ or even (in desperation) ‘What would happen if your job didn’t get done? Why would it matter?’

Yellow highlighters have a great advantage over any other colour: the marks they make are invisible to the photocopier.

One of the many ways to get a bundle wrong is to include pages where the key parts of documents have been obscured (once photocopied) by the use of a highlighter, or annotations made after the event. This is easily done. Your file of papers builds up as the case goes along, and as additional papers arrive – the ET3, for example, or material disclosed by the respondent – you read them highlight what you regard as the important bits. Quite likely you also annotate them.

Then a couple of weeks before the hearing, when the time comes to prepare the bundle, you realise that the only copy you have of several key documents is heavily annotated and highlighted. Unless you can get a clean copies from the other side, you may have to spend tedious time with a bottle of correction fluid, removing your extraneous marks from the documents before copying. Most highlighter marks will be impossible to remove anyway without also obscuring the text.

This can be avoided in one of two ways. If you have ready access to a photocopier, the simplest thing is just to copy every document as it arrives and keep one clean copy in a separate folder called ‘draft bundle’ from the outset. Make your own marks on a second copy.

If photocopying means a trip to the print shop or public library, do not bother to make spare copies of all the documents as you get them. Instead, confine yourself to a yellow highlighter when marking the documents for your own purposes. This isn’t a bad rule even when it comes to marking your own copy of the bundle, because sometimes – and you can’t tell in advance when this will be the case – the hearing bundle will need to be cannibalised for a subsequent appeal or re-hearing.

Mushett v London Borough of Hounslow gives valuable guidance on when the EAT will extend the deadline for lodging an appeal.

The EAT laid out a series of principles that it would apply. In summary these are:

• It is in the parties and the publics interest that the result of litigation should final and certain. This means that the approach to time limits should be stricter on appeal that at first instance.
• An extension of time will only be granted if the EAT is satisfied that there is a full honest and acceptable explanation for the delay
• The 42 day time limit will only be relaxed in rare and exceptional cases. There is no excuse, even for an unrepresented party, for ignorance of the time limit
• The EAT will consider the length of the delay and be aware of the possibility of procedural abuse or intentional default
• The EAT will look at the whole period during which the appeal could have been lodged. This means that time will not be automatically extended if the appellant can show that it was impossible to present the appeal during the last week. The EAT might conclude that the appeal should have been presented during the first five weeks of the period. The decision will depend on the facts of each case.

The judgment also sets out the facts of the joined cases. It is worth noting that three of the four appeals were rejected. This underlines the key point to take from this case: make absolutely certain that any appeal is lodged well within time. The EAT’s approach to the deadline to appeal is strict and it will normally be impossible to persuade them to allow a late appeal.

Even if you are encountering problems, for example, in formulating the legal argument or obtaining legal advice, it is much better to put in a mediocre appeal, than to risk missing the deadline. It will be easier to improve a rushed appeal – even to the extent of putting in new grounds – than it would be to get permission for a late appeal.

One final note, always remember that an appeal has only been validly lodged if it contains all the documents required by s3 Employment Appeal Rules. The easiest way to make sure of this is to use the appeal form provided by the EAT, which contains a checklist of the required documents. An appeal without the correct documents attached will not be valid and, unless the mistake can be corrected within the normal time limit, will be considered late.

Mushett v London Borough of Hounslow

The ET1 form is badly designed. One of its worst faults is that it provides separate boxes in which to write the narrative section of the different claims that may be presented. So, for example, a claimant who is complaining of unfair dismissal, race discrimination and unauthorised deduction of wages has 3 separate boxes to fill in to tell the story relating to each claim.

The trouble with this is that much of the story, told clearly and logically, is likely to be common to all the claims. The form invites either a lot of repetition, or else telling the story in a number of disjointed snippets. If several of the boxes require continuation sheets, the form can get very complicated and hard to read.

The best way to deal with this is simply to write ‘please see additional pages’ in each of the boxes that calls for a narrative, and then tell the whole story once, clearly and logically and making all the individual claims explicit, in a single document. The 3 pages of ‘additional space for notes’ on the form can be used if the story is short enough; otherwise just draft a separate word-processed document and attach that. (For the practicalities of presenting a claim in this event, see previous post.)

There are essentially 3 ways of presenting the claim. You can write the details of your claim on a paper copy of the form (obtainable from the Employment Tribunal Service, who will post it on request, or from a JobCentre or CAB). You can complete the online form. Or you can download a PDF version of the form and complete and submit that.

The PDF form is – nearly – very convenient to use. You can save a copy, work on it in several sessions, print it out, email it to other people, and finally, when you have finished it to your satisfaction, submit it electronically by pressing the red ‘submit’ button on the first page. Unfortunately there are two related respects in which it is inconvenient.

The first is that if the narrative part of your claim is quite long so that you need to use the ‘additional space for notes’, those pages each take a set amount of text, and insertions on one page do not automatically ‘push’ later text onto the next page. That means that if, after you have completed a first draft, you want to expand the narrative section on the first of the additional pages, you will have to make space for the new text by moving paragraphs from the first page to the second page; and that may be impossible until you have also moved paragraphs from the second page to the third.

The related problem is that there are only 3 additional pages. Even a succinctly drafted claim may well, if the facts are at all complicated, require more space than this.

In this case, the best solution is probably simply to write ‘see attached pages’ in each of the boxes that requires a narrative (e.g. 5.1, 6.2) and set out the whole story in a separate word-processed document. Then, instead of submitting the form electronically, print it and either fax or post it together with the narrative section. Although this is not one of the specific methods of presenting the form mentioned on the guidance or the Employment Tribunal Service website, the ETS helpline has confirmed that a form presented in this way will be accepted.

Section 98A(1) of the Employment Act 1996 means that, where one of the statutory dismissal and disciplinary procedures applies to a dismissal, and the employer fails to follow it, the dismissal will be unfair.¹

S98A, however, only applies to the statutory procedures laid out in the Employment Act 2002. A common confusion is to think that it applies to any statutory rule relating to a dismissal procedure. For example, the right to be accompanied to a disciplinary proceeding is a statutory right, but it is not part of the Employment Act 2002 procedure. Therefore, a breach of that right will not make a dismissal automatically unfair.

1. Provided that the employee is eligible to claim unfair dismissal to begin with