From Monday Employment Tribunal Chairmen will be renamed Employment Judges in accordance with the Tribunals, Courts and Enforcement Act 2007.

For representatives and litigants, the most significant change will be to correspondence. Where previously you would have written ‘Please put this application before a Chairman’, you should now write “Please put this application before a Judge’ and so on.

During a hearing, Employment Judges should be addressed as ‘Sir’ or ‘Madam’, as before.

Doubtless, people will continue to refer to ‘Chairmen’ for many years yet. Many practitioners have only just stopped talking about ‘Industrial Tribunals’.

Litigation involves doing quite a few unpleasant tasks. Some are boring, some are emotionally bruising and some are just difficult. This is as true for professional representatives as litigants themselves.

To some extent this is unavoidable and the only useful advice is that these things are tough but you need to do them anyway.

On the other hand there are quite a few techniques that make things easier. When writing something difficult a good trick is to start writing in the middle. Just write the easiest or most interesting bit of the document and move from there. There is no rule that says that documents should be written from the beginning to the end.

Once you’ve made a start, you’ll probably find it easier to write the rest of the document.

If you are claiming compensation for lost earnings, basic award, pension or other contractual payments, your claim is for your net losses: you are entitled to be awarded what you have actually lost by reason of your employer’s default. However, if your award for losses of this kind totals more than £30,000, you will be taxed on the excess over £30,000 at the rate of 40%. That means that if you simply claim your net losses, you will end up significantly out of pocket.

In these circumstances you need to do a calculation commonly referred to as ‘grossing up’ to arrive at the figure you need to claim so that, after tax, you will be left with a sum that properly compensates you for your net losses.

This calculation is a little daunting at first sight, but if you keep calm it is not really difficult.

You can approach it in one of two ways: you can either understand the calculation properly, or you can follow a formula and not worry too much about understanding why the formula gets you the result you are after. Obviously it is better to understand all your calculations, but if you are short of time and algebra makes you feel sick and panicky, you can get away with the short cut..

The full explanation

Round figures make sums easier, so suppose your net claim for lost earnings etc. is exactly £130,000. If you don’t gross up, you will lose 40% of the excess of this over £30,000 – that is, 40% of £100,000 which is of course £40,000. So you will end up with only £90,000 to compensate you for a net loss of £130,00.

To head this off, you need to claim a sum which, after tax at 40% on the excess over £30,000 will leave you with £130,000. We don’t know what this sum is at the moment, so we will call it X. We want to find out the value of X.

A good start is to write down what we do know about X:

X minus 40% of the amount by which X exceeds £30,000 is £130,000

or to put it another way:

X – 40/100 x (X-£30,000) = £130,000

If you remember a bit about how to manipulate equations from school, you can see at a glance that you are going to be able to find out from this what X is. The key is to remember that the left hand side equals the right hand side: that is what an equation is. So anything you do to one side, you must do to the other side as well. (Think of twins balanced on a see-saw if it helps. Give one twin a 5kg bag of apples to hold, and you have to give the other twin 5Kg of something to hold too. Move one twin 1m closer to the centre, and you’ll have to move the other one 1m towards the centre.)

Start by multiplying out the bracket:

X – 40X/100 + (40/100 x £30,000) = £130,000

so X – 40X/100 + 12,000 = £130,000

then subtract 12,000 from each side:

X-40X/100 = 118,000

then cancel the fraction:

X – 2X/5 = 118,000

then notice that X – 2X/5 is the same thing as X – 2/5ths of X, which is 3/5ths of X

so

3X/5 = 118,000

multiply each side by 5:

3X = 118,000 x 5

divide each side by 3:

X = 118,000 x 5/3

so:

X = 196,66.67

So you need to claim £196,66.67 to compensate you properly for a loss of £130,000.

It is easy to make a slip in this kind of calculation, so always try the calculation in reverse to make sure you have done it right.

If you are awarded £196,66.67 by the tribunal, you will be taxed at 40% on the excess over £30,000, that is on £166,66.67 of it. So to check we have done the calculation right, we need to take 40% off £166,66.67 and then add back the first £30,000.

40% of £166,66.67 is £66,666.67

So taking off 40% we have £166,66.67-£6,666.67 = £100,000

and adding back the £30,000 we get £130,000, which we are pleased to note is the number we first thought of.

The short cut

If your net loss is £A, you need to claim:

5 x (A – 12,000)/3

in order to be awarded a sum that will leave you with £A after tax.

Or if you prefer words: subtract £12,000 from your net loss, multiply the result by 5 and divide it by 3 and the result will be the sum you need to claim.

Remember that you should only apply this formula to net losses (of earnings, the value of contractual benefits etc – not including personal injury, injury to feelings or aggravated damages) where the total exceeds £30,000.

Many organisations have standard templates for documents. In particular any organisation doing significant employment tribunal work will almost always have a standard agreement to use for settlement.

These are often useful. Most settlements are fairly standard – the claimant will withdraw her claim, the respondent will pay her some money. There is little point in reinventing the wheel over this for every case.

Having said that, every settlement is the unique conclusion of negotiation. Do not regard your own standard template as a straightjacket. And take with a large pinch of salt any suggestion that changing a standard term is impossible.

There are three common problems you may encounter:

The big firm problem

Documents reflect the personality of the organisation that produces them. A large respondent solicitor will not have a standard compromise agreement that slants in favour of the claimant. Many of the terms – relating to things like confidentiality, tax liability, etc. – will probably be written in a way that subtly benefits the employer. Sometimes the bias is less than subtle.

This means that it is almost always a good idea, when settlement negotiations reach the final stages, to get in first with your draft agreement. There is a significant advantage to arguing about adding things to your draft, rather than trying to remove things from theirs.

If you are negotiating over their draft, it is normally sensible to focus your attentions on a few key areas. Even where there is a general pro-employer bias is likely that it only has a significant effect in a couple of areas. For example, many standard agreements contain a tax indemnity. These normally state that, although the parties do not believe that tax will be payable on the award, if it is the employee will pay it. In many, many cases this will be entirely irrelevant, since it is absolutely clear that no tax will be due. If this is the case, the provision can be safely left in, since it will never come into effect. It will often be more sensible to do so in order to focus effort on altering a particularly arduous confidentiality clause.

Of course, there is no need to immediately reveal what provisions you might be willing to let by. A sensible negotiating technique can be to object to both the tax and confidentiality clauses, with the intention of trading one for the other.

The comfort blanket problem

The second problem is that standard documents tend to be approved at a relatively high level in an organisation. If you are negotiating with a fairly junior member of a firm, he may well be reluctant to depart from what more senior lawyers have set out as the appropriate way of settling a case. Standard documents also act as a comfort blanket and an insurance policy. Nobody is going to be criticised later for using the standard document. If they change it, particularly if the change involves a concession, they run the risk of criticism later. This is a particular problem if the individual concerned does not fully understand the standard document or the changes you are proposing.

This is little that can be done about this problem except to be aware of it and to try to engage with the issues if they arise. It should also be born in mind that “I can’t change this. It’s our standard document” is a useful first line of defence even when the opposing lawyer is quite happy to make changes if necessary to get a deal.

The cross-referencing problem

This is a purely technical issue. By the time you have finished negotiation you will often have taken out some clauses, while inserting others. This can easily damage any cross-referencing. If the agreement contains language like “In accordance with section 2(3)”, make sure that 2(3) is still the relevant section or the meaning of the agreement can easily be destroyed.

Employment tribunals tend to order that witness statements are to be ‘exchanged’ on a certain date. What is implicit in this is that there will be simultaneous exchange, so that neither party gets a preview of the other side’s statements before it writes its own. For this reason it is normal to agree with the other side to exchange by fax or email at a particular time of day. If you feel anxious about this, you may want to telephone the respondent or its adviser when that time comes to check that they are ready to exchange. The only way to be completely sure of simultaneous exchange is to agree to exchange at a meeting, but this is rarely if ever done – it is too inconvenient, and the advantage in seeing the other side’s witness statements before you write your own is minor anyway.

Written submissions may be treated the same way, although some tribunals will order written submissions to be dealt with in sequence, in the order that oral submissions would be made. Simultaneous exchange of submissions is even less important than simultaneous exchange of statements, because by the time submissions are drafted, all the evidence has been given and the issues should be clear. Each side will already have a pretty good idea what the other is going to say.

Surprisingly many organisations routinely record telephone conversations. If you think that either your employer or another organisation – your employer’s PHI provider, for example, or its external HR consultants – may have recorded telephone conversations with your employer about you that are relevant to your case, you can ask for those either by way of a request for disclosure in the course of proceedings or by way of a subject access request under the Data Protection Act 1998. For how to go about this, see paragraphs 4.57-4.63 of the book or the website of the Information Commissioner’s Office.

(Thanks to Julia Stahl of Shawcross Solicitors for this insight.)

A chronology is just a list of key dates. Writing a chronology will often be the first thing you need to do to start to come to grips with a case. It is much more use to you if you have drafted it yourself: a great deal of the value of the exercise is in the doing of it, rather than in the finished product (although the finished product is useful too). This is because the task makes you think systematically about the story. What happened first? Then what happened? What happened after that? Did this bit of the story come before or after the other bit? By the time you have written down the key events in the story, you will have understood a great deal more about it than you did when you started.

For this reason, any kind offer your opponent may make to draft a neutral chronology and give it to you and the tribunal should be treated much as your mother taught you to treat kind offers of sweets from strangers.

There is nothing difficult about drafting a chronology, but there are a few good habits to cultivate:

Start by sorting the papers you have in chronological order

This makes the task much easier. Then your method is just to go through the documents one by one writing down any relevant date that you see.

Use 3 columns: date, event, page number

Date and event are obvious, but if you already have a paginated bundle by the time you do this task, it will save you a lot of time later on if every time there is a document clearly associated with a particular event, you note its page number in the right hand column. So for instance if ‘dismissal’ is one of the dates on your chronology, the obvious associated document is the letter of dismissal.

Use a table or a spreadsheet

This is helpful, because it means that you can write down dates in any old order, and then sort them at the end (or from time to time as you go along, if you find that helpful).

Approximate dates

Lots of dates you will know exactly and be able to put in your table in a form (e.g. 12/11/97) that your word-processing or spreadsheet program will recognise as such and be able to cope with. Sometimes you will just know that a particular event happened ‘during the week beginning 12 November 2007′ or ‘in November 2007.’ If there are relevant dates further back in the history, they may be even vaguer: ‘early in 2003′ or ‘in about 1990.’ Dates of this kind are harder to put in a chronology that you are going to want to sort automatically.

There are various ways of dealing with this. One method that works is to adopt a convention. Give the event an exact date which is the earliest date it could be; but mark it as an approximate date by putting an asterisk in front of the note of the event. So for example if you know that the claimant asked for a pay rise at some point during the week beginning 12 November 2007, you could write in your chronology:

12/11/07 *C asked for pay rise

If you know that your client was promoted at some point in 2003, you could write:

1/1/03 *C promoted.

Then you will be able to sort your chronology automatically, but the asterisk will remind you that this is not an exact date. If you finalise the chronology to give to the tribunal, you can sort it for the last time, and then remove the asterisks and write in the dates column just ‘week beg. 12/11/07′ or ’2003′ or ‘November 2007′ as appropriate.

This is effective, if not elegant: if anyone reading this post knows a better method, please comment.

Start your cross-examination notes at the same time

Keep an eye open from the start for documents you might want to cross-examine the respondent’s witnesses on. It makes sense to have a separate document open on your computer (or a separate pad of paper) that is the beginnings of your cross-examination notes. Don’t worry for the moment about structure or order. Just highlight the relevant part of the document with a yellow highlighter, stick a post-it on the page, and make a brief note of the point or question together with the page number (if any). If you don’t yet have a paginated bundle and the papers are voluminous, you can save yourself some time later by numbering each post-it as you go along, and sticking each one on half an inch lower down the page than its predecessor. That way, whatever order your pages end up in, your numbered post-its will run from top to bottom. Start again at the top if you run out of space.

Every claimant’s adviser will be familiar with the feeling of despair that can set in when your client arrives with several carrier bags – or worse, a suitcase – full of grubby and dog-eared papers, in no particular order, many of them in their original envelopes, some of them in a number of different copies, and not all of them dated.

The advice on this overlaps with an earlier post on difficult cases. First, sort the papers you have into chronological order. If any document doesn’t have a date on it, either put it in its approximate chronological place in the story, or, if it doesn’t seem to fit into the story or you can’t yet tell where it it fits in, make a separate pile of undated documents.

In the course of sorting the documents into chronological order, you should be able to identify any duplicates. If they are true duplicates – i.e. one is a photocopy of the other, or they are both unannotated photocopies of the same original – weed out the spare copy or copies. Make a separate pile of duplicates, either to throw away or to return to the claimant.

You should end up with a chronological pile of documents, and a (much smaller, you hope) pile of undated documents. Photocopy both piles, single-sided (but making sure you copy both sides of any double-sided pages), and return the originals to the client for safe-keeping.

Now punch holes in your nice clean piles of paper, and put them both in a lever-arch file or ring binder, the undated separated from the dated by a divider card.

See? You are feeling better about the case already. You have probably started to pick up a certain amount about the story just from identifying the documents and putting them in chronological order. The next thing is to write a chronology.

Badly compiled bundles are a source of unnecessary stress and delay in the course of the hearing. There is a surprisingly large number of ways to get a bundle wrong: the book lists 11 separate errors at paragraph 8.16. Here are three more:

1. Photocopy double-sided, with parts of different documents appearing on opposite sides of the same page.
2. Include the same document twice or more.
3. Punch holes through the pages in a slightly different place each time.

The second can be made even more confusing if in each case there are a few pages missing from the document – but not the same few pages. Occasionally it will be genuinely necessary to include two copies of the same document: for example, where two copies of a typed document have then been separately annotated by two different people in the course of the events that form the subject-matter of the claim. But there is no need to put a document in the bundle a second time just because – for example – it was enclosed in a letter some time after it was originally written. Just put it in in its own chronological place. If the fact that it was enclosed in a later letter matters enough to be discussed at the hearing, everyone can add cross-references to their bundles when it arises.

The third means that if you remove papers from their file or binder to sort them in a different order, you can’t put whole sections of the bundle back onto the rings of the binder: each page has to be individually teased into place. The paper guide on your hole punch is there for a reason.

Suppose that in the course of the hearing your client realises that an important answer given by one of the respondent’s witnesses can be proved wrong by a document that she has at home, but that she has not previously shown you or mentioned. She goes home and looks out the document and brings it the next day. When you look at it, you think it is extremely helpful to her case.

What do you do? Can you use this document?

The first thing to note is that if the document is relevant, it ought to have been disclosed to the other side before the hearing began and included in the bundle. It has to be disclosed now, so give a copy to the other side’s representative, with apologies for not having disclosed it earlier, at the first opportunity. Don’t make excuses at this point, but find out from your client why the document was overlooked previously so that you can be ready with your explanation for late disclosure in case the tribunal asks you.

The next thing is to decide how to deal with the new document in evidence. If the witness in question is still giving evidence, you should just be able to show him a copy of the document and ask him questions about it.

If the witness in question has finished his evidence, you may wish to have him recalled so that you can ask some further questions. Tread carefully at this point, though, and be ready for a tussle with the tribunal: the Chairman will not be keen to bring witnesses back after their evidence has apparently finished. You are on the moral low ground to the extent that the document should have been disclosed earlier. If there is any risk that recalling the witness will extend the hearing so that it needs an additional day, think hard about how important it is to be able to ask him about this document. Can another of the respondent’s witnesses sensibly be asked to confirm that, in light of this document, his evidence must have been mistaken? If the hearing is extended because you insist on recalling a witness to deal with a document that your side should really have disclosed earlier, you are likely to face a costs application.

Similar considerations apply if your client produces a document that she says proves she is right on an issue she was given a hard time about in cross-examination. You may want to recall her after the end of her evidence to explain the document, but avoid this if you can: you may be able to make your point about the document just as well, if the respondent’s evidence is yet to come, by cross-examining one of their witnesses about it.