One of the most useful tools of advocacy is a collection of conventional phrases. Many of them are clichés, but they help oil the wheels.

A common moment of difficulty is, when having finished saying what you have to say, you want to stop. It is all too easy to find yourself dribbling to a halt, after which there is a long moment of silence while everyone else waits to see if you are finished.

Bar students are taught to say something like “Madam, unless I can assist you further, those are my submissions.” If that feels too pompous, you could say, “Unless you have any questions for me, that is all I have to say.” This brings the speech to a clean stop and gives the tribunal members their cue to ask you any questions they have in mind.

Closing submissions should normally last about 30 minutes for each day the hearing has lasted.

The most common mistakes in closing submissions are excessive length and irrelevance. It is very easy to speak at great length, while doing nothing to help your case. A short, relevant submissions will almost always be the most effective one.

Like most similar maxims this rule should be broken regularly. Some short cases deal with complex legal points that will require extensive discussion; some long cases are best ended with a few sharp, pithy words.

In Secretary of State for Health & ors v Rance & ors [2007] IRLR 665, HHJ McMullen reviews the authorities on when the EAT will be prepared to entertain a new point of law or permit a concession to be withdrawn, and sets out at paragraph 50 of his judgment the principles that he draws from them, as well as finding 3 new relevant factors in Rance itself.

Unfortunately, there is no attempt in the judgment to reconcile the sometimes contradictory principles listed. The true rule would still seem to be that the EAT will allow new points of law to be argued if it feels like it.

In Balmain v Atlas Cleaning Ltd the employer said that it had dismissed the claimants because the manager of the shop where they worked as cleaners had required them to be removed from that work. The claimants sought a witness order to compel the manager to appear as a witness at the hearing of the unfair dismissal claim, but the tribunal refused. The EAT allowed the claimants’ appeal, saying the witness was plainly one who had potentially relevant evidence to give.

Unfortunately the EAT gave no guidance as to whether the witness was to be regarded as the Claimants’ or the tribunal’s witness: if she was the claimants’ witness, they would not normally be permitted to cross-examine her, whereas if she was the tribunal’s, either party could cross-examine her. In the very rare cases where it is desirable to secure the attendance of a witness who is unwilling to provide a witness statement, it is probably better that the witness is called by the tribunal as its own witness for this reason.

Balmain v Atlas Cleaning Ltd

Where a case involves issues of unfair dismissal and redundancy payment confusion often develops around whether the claimant should be seeking a basic award or a redundancy payment. Since the awards are of equal value this is rarely a vital issue, but it is worth getting right if possible.

The following scenarios may assist, all assume that the claimant has not received any payment relating to dismissal.

• If the client has been made redundant and accepts the redundancy was fair, he should claim a redundancy payment.
• If the client has been dismissed, but does not accept the reason was redundancy, he should claim the basic award (but probably a redundancy payment in the alternative, in case the tribunal finds the dismissal was a fair redundancy.)
• If the client has been made redundant, but believes the dismissal was unfair, he can claim both the redundancy payment and the basic award. However, the rule against double recovery means he will only recover the value of a single award.¹
1. Double recovery is the rule that you can only be compensated once for the same loss, even if you are entitled to bring a claim under a number different jurisdictions.

In general, hearings will deal with all of the issues they have to decide in a block. That is to say, having identified six issues, the tribunal will hear evidence and submissions relating to all of them – then give its judgment. It is fairly unusual for a tribunal to deal with a single issue separately, without separating it out into a separate hearing in the form of a pre-hearing review.

Having said this, the tribunal has a great deal of discretion in regulating its own proceedings, and there are issues that can be usefully separated out. Suitable issues will be those that are determinative of the case, ie. those that once decided may make the other issues irrelevant, and those where the relevant evidence is quite separate to the rest of the evidence. In most cases an issue will have to meet both criteria before the tribunal will depart from standard practice.

In such cases, the tribunal will effectively hold a mini-hearing, within the main hearing. Evidence relating to the single issue will be called, submissions given and the tribunal will give its judgment. Once this is done, the tribunal will, if necessary, continue to the other issues.

In Sage (UK) Ltd v G Bacco, HHJ Clark made a practice statement to the effect that a party relying on a reported case should provide a photocopy of the report (normally from either the Industrial Case Reports or the Industrial Relations Law Reports in this context) and include the correct citation in its list of authorities. Transcripts of judgments should only be used where no report was available.

This is an entirely reasonable request to make of lawyers appearing in the EAT, who should have easy access to the relevant reports. The main reason is that law reports begin with a ‘headnote’ that summarises the point(s) of law decided, cross-referenced to the key passages in the judgment.

However, complying with this practice statement may be harder for parties acting for themselves, because while transcripts of most EAT, Court of Appeal and House of Lords judgments are readily available for free online, the ICRs and IRLRs are available online only by way of expensive subscriptions. Getting hold of them may mean a trip to a library and a long session with the photocopier. If the other side is represented by lawyers, this is a good reason to charm them into compiling a joint bundle of authorities even if it is your appeal and it is therefore technically your job.

If the worst comes to the worst, the authors doubt that unrepresented parties who are unable to comply will provoke the EAT’s wrath.

Sage (UK) Ltd v G Bacco

Many employment cases involve disputes about calculations, often relating to sums of money, but also other issues, such as hours worked or weeks employed.

Normally the dispute is about what calculation needs to be made. For example, the claimant will say that he is entitled to 3% commission on his sales, while the respondent claims he is entitled to 2.4%.

Surprisingly often, however, the dispute comes down to a difference in the result of the calculation. For example, the parties agree that 3% commission is owed and that it is on the invoices to be found from page 70 to 77 in the bundle, but cannot agree a final figure. The claimant claims he is owed £3,544, while the respondent insists it is £2,898. The difference is purely arithmetical and it seems obvious that one party must have got its sums wrong.

In an ideal world, such errors would not occur and, if they did, would soon be resolved amicably. In this, less than ideal world, the question arises, should an advocate cross-examine a witness on his maths?

The authors believe not. While the maths may be a question of fact, it is not one that is likely to be illuminated by careful cross-examination. Instead, the sums should be set out in the submissions and the tribunal can, if necessary, do its own arithmetic to check them.

It should be noted, however that this is not necessary the general view and that the authors are aware of at least one tribunal who took the position that a witness should be taken through his calculations. The most sensible approach is to seek guidance from the tribunal, by saying something like “Sir, there is an issue regarding the calculation of this figures. It comes down to a question of arithmetic. Unless you think it would be helpful for me to take the witness through the sums in detail, I think it can be dealt with in submissions.”

The final point to note is that, in an appropriate case, the tribunal’s own arithmetic can be challenged by way of appeal, see Mears v Lloyd Green & Co. for an example. In most cases, however, a tribunal’s mistaken calculation is more appropriately dealt with by applying for a certification of correction or a review.

The point of writing is to communicate. Good writing communicates clearly, and without a struggle on the part of the reader. One aspect of this is brevity. Most pieces of functional writing can be improved simply by deleting words and phrases. Read what you have written, delete everything you can delete without changing the meaning, and you will almost certainly have improved it.

A common error when dealing with expert reports is to ask questions that are too general.

This normally occurs in two ways. Firstly, instead of asking questions about the client, the adviser asks, in general terms, about the situation that the client is in. For example, rather than ask about the client’s depression, the adviser asks for general information about depression and its effects. This is unhelpful. The tribunal’s interest is in how depression effects the claimant specifically, not in how it might affect other people.

Secondly, instead of asking questions addressed to the issues in the case, the adviser asks, in general terms, about the client’s condition. For example, the adviser might ask “For an opinion on Ms Jones’ depression”. This may, or may not, provide a useful report. A series of specific questions focused on the relevant legal test is far more likely to result in useful evidence.