Gross misconduct is misconduct so serious that so far as the contract of employment is concerned it entitles the employer to dismiss without notice. This idea cuts both ways: if the employer is guilty of a fundamental breach of contract, the employee is entitled to walk out without notice. When the employee resigns in these circumstances it is called constructive dismissal.

That is the contractual situation. Protection from unfair dismissal means that even where gross misconduct is proved, the employer still has to consider the gravity of the offence, look at alternatives to dismissal, and give proper weight to any mitigating factors. Employers often overlook this: they have a tendency to assume that once they are satisfied that there has been gross misconduct, dismissal follows inevitably. This is a mistake, and one that claimants can exploit.

Part of the reason for the mistake is that people making harsh decisions tend to prefer to disclaim responsibility for them. It is easier to say ‘I have no alternative but to dismiss you’ than ‘Although I could have give you a formal warning, I have decided to dismiss you.’

This mistake means that there is a particular line of cross examination that often works well. It is worth considering in any case where the employer’s reason for dismissal is gross misconduct; it also provides an example of how witnesses can be invited along an easy path until they are where you want them. (See also ‘Preparing the ground.’)

Suppose the dismissal letter says something like ‘In the circumstances I have no alternative but to dismiss you.’ The cross-examination goes something like this:

Q: Please turn to page 87. This is your letter dismissing Mrs Smith. Does it explain your reasoning accurately?

A: Yes [this is obviously the 'right' answer - few managers will want to say that their own letter was misleading]

Q: So there was nothing that you regarded as important to your decision that you omitted to mention here?

A: No. [This seems to follow from the previous answer, and disagreeing is unattractive because it involves volunteering that there were important omissions from the letter.]

Q: And when you said ‘I had no alternative’ you meant it?

A: Yes. [Again - a question of the form 'you meant what you said didn't you?' will almost always elicit the answer yes.]

Q: Once you were satisfied that Mrs Smith was guilty of gross misconduct, you really had no option but to dismiss her?

A: That’s right. [A wily personnel officer who has given evidence on many occasions may start to smell a rat - but it is surprising how many will continue to follow trustingly at this point.]

Q: So there really were no other options that you could have considered?

A: No.

Q: And the question of her previous record was not relevant?

A: No.

The last two questions are the crunch. The dismissing officer should have considered alternatives to dismissal, and mitigating factors such as the claimant’s previous record (if good), before deciding to dismiss. A failure to do so points to unfairness. This series of questions has produced some damaging admissions without ever facing the witness with an inconsistency or calling her a liar. If you have done it gently enough, she may not even realise she has given anything away.

Employment cases are very important to the parties and a great deal depends on what the tribunal thinks.

The natural human instinct in such situations is to try to figure out what the tribunal is making of the case.

To some extent this is very sensible. It is valuable to have some idea of how the tribunal is approaching the case and what they think of it. This allows you to tailor your case to the tribunal and deal with areas of difficulty.

But it is all to easy to become slightly obsessed, to the detriment of your case. Many litigants and their advisors will start to read meaning into trivial behaviour. How quickly the tribunal replies to a letter, or precisely what words they use, can take on an overwhelming importance. The tribunal’s facial expressions, or when they break for lunch, is often subject to the most rigourous scrutiny.

The fact is that it is quite impossible to get any insight into what the tribunal is thinking by analysing such things to death. You will only cause yourself stress and worry. Be alert for indications from the tribunal to guide the presentation of your case, but don’t try to read their minds.

Case management discussions by telephone are increasingly common. Here are a few hints to get the most out of them:

• Be on time. The tribunal will be just as unhappy if you are five minutes late to a telephone call as they would be if you were five minutes late to any other hearing.
• Identify yourself. Unlike in a normal hearing the tribunal cannot deduce who you are by where you’re sitting. At the start of the hearing make sure you have explained who you are. If there is a chance of confusion later on, you should start your remarks by saying something like “Mr Rhodes for the claimant, Madam…”.
• Speak in turn. Interrupting needs to be done carefully in all hearings, but is particularly problematic during a telephone call. If people speak at the same time it quickly becomes difficult to follow who is talking and what they’re saying. Unless it is absolutely necessary, wait for your turn. If it is absolutely necessary, indicate that you need to speak by saying something like “Sir, if I could interrupt for one moment” and wait to be acknowledged.
• Talk to the other side beforehand. Unlike a normal CMD, you will not be able to speak to the respondent before the hearing or even have a whispered conversation during proceedings. Anything that needs to be discussed will need to have been discussed before the call starts.
• Prepare an agenda. Telephone CMDs are a very good way of running briskly through an agreed agenda of points, but a bad way of sorting out what the agenda should be. So have a list of points that need to be dealt with, and try to agree it with the respondent before the hearing. If possible, send that proposed agenda to the tribunal in advance. If this is not possible try to spend some time at the beginning of the call setting it out clearly.
• Make sure everyone has the relevant documents. One seriousness weakness of a telephone hearing is that there is no way of passing documents between the people involved. If the tribunal will need to see a document they must have it in advance. And everyone must be able to refer each other to the document they are talking about. This means an indexed and paginated bundle is vital.

The best advice about deadlines is not to miss them in the first place.

This particularly applies to deadlines that affect the tribunal’s jurisdiction, such as lodging the ET1 or putting in an appeal. Missing these deadlines will cause very serious problems and is likely to derail the case entirely.

Missing case management deadlines, such as for exchange of documents or witness statements, is less immediately fatal, but can also cause problems. It is far better to meet them, unless it really is impossible to do so.

If a deadline has been missed, it is worth attempting to complete whatever the task was as soon as possible. It is much easier to explain to a tribunal why something was late than why it is still late.

If you suspect that your former employer is making it harder for you to get a new job by giving you an unfair reference, you can make a subject access request under the Data Protection Act for a copy of the reference. Straightforward guidance on how to do this is available from the Information Commissioner’s Office. If there is argument after you have won your case about whether you have done enough to mitigate your loss, it will assist you if you can produce copies of any poor references you have discovered by this means.

When writing or speaking to the employment tribunal it is very useful to ‘signpost’ what you are going to say. The aim is to give the tribunal an indication of where you are going, so that they are able to follow you.

Young barristers are often taught to say something like “I have three submissions to make. Firstly, that the claim was made within the three month time limit. Secondly, that if it was not, time was extended by the grievance procedure. Thirdly, if the claim is out of time, then it would be just and equitable to extend time. I will now deal with my first submission, which is that the claim was within the three month time limit.”

Beginning in this way has two important advantages. It tells the tribunal what you are going to say and how you are going to say it. You should not assume that either of these things is obvious to the tribunal. And it will be easier for them to understand (and therefore easier for them to accept) your submissions if they know what you are getting at. If they do not understand where you are trying to take them, there is a real risk that an important point will be lost, because they did not understand its relevance while you were making it. Even if the tribunal is able to follow you, you are making them work unnecessarily.

The other advantage of signposting is that it makes sure that you have some clear idea of what you are going to say and what order you are going to say it in. This is valuable, particularly if you have to depart from a planned speech to deal with the tribunal’s questions.

The potential disadvantage of signposting is that it can easily become robotic. There is a real danger you will find yourself saying something like “I know turn to my second submission, on which I will make three points. My first point has two sub-points. The first subpoint raises two issues…” This is confusing, as well as sounding foolish.

This is easy to avoid by remembering that tribunals understand about signposting (they did or do it themselves as advocates and most representatives will use it) and will pick up quite subtle indications. This means that saying “Sir, we say that the claim was made inside three months and that in any event time was extended when we raised a grievance. But if the claim is out of time we say that time should be extended.” is just as effective, and less robotic, as explicitly numbering your points.

Signposting is also useful in cross-examination. It is not generally useful to signpost your whole cross-examination at the beginning, but an occasional indication of where you are going next will help the tribunal and the witness. Cross-examination should be made up almost entirely of questions, but it is perfectly proper, and very useful to say things like “I’m now going to ask you some questions about the July meeting.”

In a factually complex case it may even be useful to ask some questions for the purposes of signposting. For example, you might ask “This was a meeting between you and my client?”, expecting the answer “yes”. Then “And you were meeting to discuss the allegations of theft”, again expecting the answer “yes”. Such questions will not take the evidence further forward, but act as a quick reminder of what the meeting was about. It is important that any such questions be quick and to the point. The idea is to give a short reminder, not to rehash evidence that has already been given.

In Lovett Ltd v Evans the EAT returned to the question of what makes a grievance under the statutory dispute resolution regime.

Following a meeting in which she was told she would not be getting a pay rise, for reasons connected to her pregnancy, Ms Evans was off work for a short period. When she returned she completed an absence reporting, which said:

Following on from meeting with Richard and Mark, went home very upset. Didn’t sleep and
suffered numerous nose bleeds.

The tribunal concluded that this was not sufficient to amount to a grievance, because it did not contain any explanation of what the complaint was. However, it went on to refer to a meeting that occurred a few days later, in which Ms Evans set out her complaint more fully. It concluded that the absence report, read in the context of the later meeting, was sufficient to satisfy the need to lodge a grievance.

The EAT overturned this decision. A written statement must be read in the context of events leading up to it. But what happens have the statement is made, cannot be used to clarify or explain it.

Lovett Ltd v Evans

There is a point, in many cases, where the representative starts to feel that he cannot understand the case. The facts are too complex or confusing. The papers are voluminous and some of them seem to have strayed in from a different case. The law is obscure. In any event, despair or panic begins to set in.

The only thing to be done in this situation is to press on.

Everyone who appears in tribunals finds some cases daunting at the outset. Experience doesn’t teach you to understand all cases straight away; it just teaches you not to panic if you are baffled by a case at first, and to have faith in your ability to make sense of it in the end. And it teaches you some concrete techniques for dealing with these cases.

The main thing – after taking some deep breaths, making a cup of tea, and shutting yourself away in a quiet room on your own with the papers – is to find a straightforward task that you know how to do, and then do it steadily for a while. Accept that for a lot of the time you are doing it, you won’t understand the big picture. Have faith that it will gradually come into focus.

A chronology is usually the best place to start. However baffling the case may seem, drafting a chronology will not be difficult. You create a table or open a spreadsheet. Then you go through the papers one at a time, and each time they mention a date that is – or may be – at all important, you write the date in one column and a brief note of what seems to have happened on that date in the next. If you already have a paginated bundle at this point, you add the page number in a third column. If you don’t have a bundle yet, start to arrange the papers into chronological order as you go. Keep a pad of post-its and a yellow highlighter to hand. When you start to see important bits of documents, highlight them and put a post-it on the page.

If you can’t tell what is important and what is not for the moment, don’t worry. Just write down what seems to have happened on each date you come to. You can always delete the unimportant stuff later. Don’t worry about being consistent either: if you begin by noting down every single date you come to, you can be more selective as you go on and gain confidence that you know what is important and what isn’t. If this process starts to give you ideas about other aspects of case preparation – cross-examination questions, for example, or additional documents that you ought to request from the other side – jot down the ideas as you go along.

By the time you have looked at each piece of paper in the case and incorporated into your chronology if it appears to record any dated event, an highlighted what seems to be the important bits of it, you will almost certainly have a much clearer idea what the case is about, and what the evidence is. Your chronology is also an extremely useful document that you will refer to constantly from now on.

By now you are almost certainly feeling much better about the case. Don’t lose momentum. The next thing is probably to attempt a one-page version of your chronology that just shows the bare bones of the story. You can probably recognise them by now. Then do an even shorter list of the dozen or really crucial dates. Pause for a few minutes and commit this last list to memory if you can.

Next, draft a list of issues. Look at the ET1 and the ET3 again. However badly drafted, they will make much more sense in the light of your chronology. Draft a list of issues. If your ET1 is seriously unclear, or misses complaints that you now see it ought to have made, or makes some complaints that are obviously going nowhere, think about amending it. Start to expand your list of issues into the beginnings of a set of written submissions.

Ultimately the key is to slog on. It will – almost always – make sense in the end. Big cases are not harder than small cases, just bigger.

A lot of the conversations and correspondence, during litigation is about providing other people with information and receiving information from them.

But you shouldn’t stop once you have provided or received the information. Go on to say what you want to do about it.

For example, say you are waiting for an expert report, and the expert contacts you to say he will be several weeks late providing it. You should certainly contact the other side and let them know. But you should consider whether the other case preparation will need to be changed, so that you can make proposals at the same time.

Similarly, say that one of your witnesses have been taken ill, shortly before the tribunal. Both the tribunal and the other side will need to know. But you also need to think how you want to handle the situation. Will the hearing need to be postponement? Or can the witness give evidence later in the hearing?

By setting out how you want to deal with a situation you maintain a degree of control over it. Either the tribunal or the respondent may disagree with your proposals, but once you have made them, you have taken the initiative. You are more likely to get what you want than if you wait for someone else to make a suggestion, then try to modify that.

You also avoid delay, as the tribunal’s response to a letter informing them of something will often be a slightly more formal version of “Okay, so what do you want to do about it?”

A key part of many tribunal documents is an account of what has happened. Witness statements are the most obvious example, but, ET1s, ET3s, written submissions and notices of appeal will also contain a recitation of the facts.

Unless there is a very good reason not to, this account should be given in chronological order.

Sometimes it is tempting to use a different approach. In a bullying case, you might deal with what Mr Smith did, what Ms Jones did, then what Mr Adam did. Where there are a number of different jurisdiction, you might deal with each jurisdiction in turn.

This is almost always a mistake. The first thing that the tribunal will want to do is to figure out what has happened. It is easiest and most natural for them to approach this in chronological order. Any other approach, no matter how initially attractive, is likely to become confusing and difficult.

Of course, once the facts have been set out, it is useful to discuss and analyse them in other ways. This is easily done by referring to the chronological account. For example, in a case of multiple claims you might write, in the second part of your submission:

34. The claimant complains of indirect sex discrimination, harassement and victimisation as follows:

35. Indirect Discrimination The respondent applied a rule, that all employees had to staff both morning and evening sessions, which put women, including the claimant, at a disadvantage when compared with their male collegues. See paragraphs 4-13 and 21-26.

36. Harassment When the claimant complained of this rule, her manager and male collegues belittled her work, stopped including her in social events and made frequent comments to the effect that, as a women, she was not capable of doing her work as well as the men. See paragraphs 5-20 and 31-33.

37. Victimisation After the claimant complained to management about the discrimination she had suffered, she was refused a promotion to Senior Officer. See paragraphs 27-30.

Note that the references back to the chronological account include a brief summary of what is being referred to. Writing “harassment, see paragraphs 5-20 and 31-33″ is just as confusing as taking the events out of order.