Advocates and tribunals do disagree. In many cases that disagreement will only become apparent once the tribunal gives its judgment, but the tribunal will also often enough intervene in the course of the hearing to say something to the effect “One moment, Mr Rhodes, that is just not right”.The tribunal will very rarely make this sort of comment about a central issue that they are being asked to resolve. A tribunal dealing with an unfair dismissal is unlikely to interject with a comment that, in their opinion, the dismissal was perfectly fair. These are matters for their reasoned judgment. But it is quite common on individual points of submission. For example, if a representative says “The law is X”, the Chairman may say “No, surely it is Y.”
This can be disconcerting, but is actually a good thing. By raising the issue the tribunal has given an insight into their thinking. If they had remained silent the advocate would have continued, unaware that he had lost the tribunal several steps back. By indicating that they disagree, the tribunal has given him the opportunity to take action.What that should be will depend on the situation, but the following are some suggestions:
Consider that they might be right.
We all make mistakes and sometimes the tribunal will be accurately pointing out that you have made a error. In such cases the only thing to be done is to recognise that you have gone wrong, accept it and move on.The conventional formula in this situation is something like “Sir, that must be right. I’m grateful.” Then “In that case, let me move on to…” Quite what is said is unimportant. The aim is to accept the error and get off the subject as quickly and as smoothly as possible.Such moments are embarrassing and disturbing. The thing to remember is that you are almost certainly making more of the incident than anyone else is. Provided the slip is recognised and accepted it will very rarely do any harm.
Defend your view
The easiest way of persuading the tribunal you are right is to take them to some convincing evidence. If the disagreement is over the respondent’s disciplinary policy, take them to it and explain your view. If it is over the detail of a statute, ask them to turn to Butterworths and show them you are right.Be polite and clear.
Rephrase the issue
Sometimes it just helps to say the same thing in a different way. This is particularly the case if the problem seems to be that the tribunal hasn’t understood your position.
Go back a stage
Sometimes problems arise because the representative has moved over a point too quickly or assumed that something is in the tribunal’s mind when it isn’t. In such cases it is useful to back up and restate the reasoning that led up to this point.
For example, the claimant’s barrister is making submissions on why the respondent was in breach of the grievance procedure. He assumed that the tribunal had understood that the claimant’s case was that this was the applicable procedure. The tribunal, having misunderstood some of his earlier remarks say that, in their view, the dismissal and disciplinary procedure applies. The only way to deal with this is to go back and explain from the beginning why the grievance procedure applies.
There is nothing wrong with asking the tribunal questions and this can be very useful in establishing exactly what the disagreement is.
For example, in an unfair dismissal case the Claimant is arguing that, because an important witness was leaving the country it was unfair that the disciplinary hearing was not heard before the witness left. The Chairman suggests that procedural unfairness in an unfair dismissal case will not render the dismissal unfair, if the respondent can show that the dismissal would have happened anyway. The Claimant asks “But I thought not if there is a breach of the statutory procedure?”, and the Chairman agrees this is so. The issue clarified, the Claimant is able to point out that he says that there was a breach of the statutory procedure, because the statute says the process must be carried out without unreasonable delay, and in the circumstances the delay was unreasonable, because although it was short it meant the witness was unavailable.
Questioning the tribunal must, however, be done with a good deal of tact. It is important to make clear that you are asking questions to understand what the tribunal is saying, not as a way of making points. No tribunal will react well to any hint that they are being cross-examined.
In some cases, although you think the tribunal is wrong, their position will not be deterimental to your case.
For example, say that your client has been suspended for incapacity, pending a medical assessment. You say that the respondent had no power to suspend him, because, under the contract, suspension is restricted to cases of gross misconduct. The tribunal disagrees, pointing to a section of the disciplinary code that might arguable be interpreted to allow incapacity suspensions. Although you think they are wrong, the section they are referring to also lays down strict processes for such suspensions and requires that a senior manager makes the decision. Neither requirement has been followed.In such circumstances, depending on the case, it may be tactically wise to quietly drop your submission that there was no power to order suspension, in order to concentrate your fire on the point that it certainly wasn’t exercised properly.Such decisions have to be made carefully. The ultimate aim is to win the case, not win every point. An advocate who does not adjust their submissions to the tribunal’s view is not serving their client well. But neither is one who makes sure never to disagree with the Chairman.
If, having done your best to convince the tribunal, they are just having none of it, there is nothing to be gained, and much to be lost, by prolonging the argument unnecessarily.
In these circumstances, something like “Madam, I think I’ve said all I can on this point, may I move on to…” is often useful.
Quite often, the Chairman will come to a similar conclusion and say something like “I think I understand what you say here. Perhaps we should move on.” The advocate will need to make a quick decision either to accept this steer from the Chair or to try to continue with their argument. Continuing in the face of a suggestion to move on will be unpopular and should only be done if there is a real chance of persuading the tribunal
But, if necessary, make sure the tribunal makes a decision
Sometimes it will be necessary to challenge the tribunal’s view by appealing. For this to be done the tribunal will need to make a decision that can be appealed. There is a danger that, for some sorts of decision, the tribunal will express a view on what their decision might be and the advocate will bend to this, rather than the tribunal actually making the decision.
For example, in cross-examination, the claimant wants to ask questions on a particular subject. The tribunal questions whether they are relevant (and it seems pretty clear that the Chairman thinks they are completely irrelevant). The advocate, not wanting to annoy the Chairman, moves on to something else. Later the client wants to appeal on the basis that the tribunal stopped a relevant line of questioning. This will be probably be impossible, because it was the advocate, not the Chairman, who stopped the cross-examination.
If necessary, it may be useful to say something like “Sir, I just want to be quite clear. Are you making a ruling that…?”