Often you need to do substantial work the papers involved in the case before you are in a position to finalise and paginate your hearing bundle. If you are writing a chronology, for example, at an early stage in the case, maybe before even drafting the claim, you won’t be able to cross-reference it to page numbers in your bundle because your bundle doesn’t yet have page numbers. What do you do?

One possibility is to buy the narrowest post-it notes you can find, and stick them onto the key documents as you come to them, one post-it width lower down the page each time, writing numbers on them as you go along. Now your bundle is decorated with a numerical tab for each key document, and you can use these numbers in your chronology, cross examination notes etc. The beauty of this system is that having stuck the post-its on and numbered them, you can rearrange the papers in a different order and your numbers will still run consecutively from top to bottom.

A similar system works quite well, as it happens, for flagging the pages in your carol book that correspond to the choral numbers in your Carol Service.

Happy Christmas! If you are visiting this blog on Christmas Day, you have almost certainly got things out of proportion – turn your computer off and go and help with the washing up. (Later, you might find the section of the book at paragraph 1.20 onwards, headed ‘Whether to bring a claim’ helpful.)

In an ideal world, witness statements would be ready days, if not weeks, before they had to be exchanged. There would even be lots of time for tweaking, polishing and general fiddling with them, to make sure they were absolutely perfect.

In the real world, witness statements often have to be prepared quickly.

Even when you are in a rush it is important to make sure that the statement is complete and accurate. In particular, advisors must always make sure that their client has read and agreed the statement before it is exchanged.

If you are really rushed there are ways of cutting corners, without causing problems.

Exchange unsigned statements

It is often easier to get confirmation that a statement is okay than it is to get a signed copy from the client. There is nothing wrong with exchanging unsigned statements. It is simply a myth that statements must be signed before they are exchanged.

Leave page numbers blank

Sometimes you will need to exchange statements before the agreed bundle has been finalised. If this happens it is normally sensible to leave space to insert page numbers later. This allows you to exchange on time, but still provide the tribunal with a copy with cross-references to the bundle of documents.

All employment lawyers know that orders for reinstatement (getting your old job back) and re-engagement (getting another job with your former employer) are extremely rare. To some extent this has probably become self-fulfilling: everyone knows that these orders are rare, so hardly anyone bothers to apply for them. That is part of the reason they are so rare.

In fact, it is very often a good idea to try for re-employment (employment lawyers tend to use this term to cover reinstatement or re-engagement). There are two main reasons. The first is that it is something that, as a rule, employers really hate. They hate it so much that a credible application for re-employment will often have a marked upwards influence on offers of settlement.

The other reason is that if re-employment is ordered, the claimant is entitled to be compensated in full for all her lost earnings from dismissal to the date of re-employment: the statutory limit does not apply. Where losses to the date of the hearing exceed the statutory limit, therefore, an application for re-employment should always be vigorously pursued unless it is clear that it is hopeless.

Bear in mind that on an order for re-engagement, the tribunal has a wide discretion to order re-engagement on such terms as it considers just. So take the widespread assumption that re-employment is impossible if there has been any significant contributory fault with a large pinch of salt. Where there has been misconduct, for example, but not sufficient to justify dismissal, there is no reason why the tribunal should not order re-engagement to a lower-paid post, or with a disciplinary warning.

Do not rule out re-employment just because it is not practicable for the claimant actually to return to work, either: re-engagement with immediate medical retirement will sometimes be an option worth considering.

Once the tribunal has made its decision on a case, there is normally nothing left to negotiate.

The most common exception to this rule is where the tribunal’s decision is only on liability. Once, for example, a tribunal has concluded that Bill was unfairly dismissed, it is often possible for Bill and his ex-employer to reach agreement on remedy. The tribunal will frequently assist with this, by also giving guidance on matters affecting the remedy decision. For example, a tribunal will often give a judgment in the form “Bill has been unfairly dismissed. We consider that he contributed to the dismissal to the extent of 20%. A remedies hearing will be listed, unless the parties inform us that it is unnecessary.”

It is always, of course, possible to return to the tribunal for them to decide the proper remedy, if agreement is not reached.

Negotiation is rare where the whole case has been decided by the tribunal, but it is not impossible. For example, where part of the claim is for pension loss, all the tribunal can award is a lump sum reflecting that loss. But the parties can agree that this sum, or an equivalent sum be paid into the pension fund itself. The fact that this sort of post-decision deal is unusual does not mean it is impossible if both parties want it.

It is frustrating to win your case, but get limited compensation because you can’t convince the tribunal that you have done a reasonable amount to find work – what’s called ‘mitigating your loss.’

It is important to make sure you collect evidence of all your mitigation efforts. If you are claiming benefits for which you have to be available for work, you will have to show the JobCentre some evidence that you have been looking for work. But bear in mind that evidence that is sufficient to convince a bored and underpaid JobCentre worker may not stand up to the kind of scrutiny you can expect from an employment tribunal.

Your aim, in collecting evidence of your mitigation efforts, should be to collect together a pile of papers so enormous that the respondent’s lawyers feel tired just looking at it, and can’t face trying to cross-examine you on it at all.

With this aim, do the following. Keep a diary of your job search. Aim to take at least one step every weekday day to find work, and record it in your diary. Make a note every time you look for jobs in a newspaper, or visit the JobCentre, or visit or telephone a particular employer. If for some reason you are not able to take any steps at all on a particular day, make a note in your diary of the reason why. Keep a file of relevant papers in chronological order. Put in it clippings of all newspaper adverts you follow up, a copy of every application you make, a copy of every rejection letter or invitation to interview that you receive.

Keep copies of the cost of your job search in the same file: keep your train or bus tickets if you have to travel to an interview, and receipts for printing costs if you have to print copies of your CV.

Bear in mind that the longer you are out of work, the more you will have to prove: if you find another job in 3 months or less, it is unlikely that the respondent will even try to argue that you have not done enough to mitigate. But if you are out of work for 9 months or a year – especially if you are still out of work at the time of the hearing – you will almost certainly face close questioning about what you have done and why you have not succeeded yet.

In RBS v Bevan, the EAT considered an appeal against an employment tribunal’s decision that it had not been reasonably practicable for the claimant to present his claim within the first 3 months from dismissal in circumstances where he did not hear of the failure of his internal appeal against dismissal until 5 hours before the expiry of the time limit.

The Employment Act 2002 (Dispute Resolution Regulations) 2004 provide an extension of time by 3 months in circumstances where at the time when the initial 3 month period expires the claimant reasonably believes that an internal appeal is still in progress. Mr Bevan did not get the extension, because by the time the initial 3 months expired he was aware that his internal appeal had failed – even though only just. The question was therefore whether it had been reasonably practicable for him to present his claim in time. It was argued that it was – because there was nothing to prevent him from presenting his claim before he knew the result of the internal appeal, although he might prefer not to.

The EAT held that the employment tribunal had been entitled to find that it was not reasonably practicable for Mr Bevan to present his claim in time. Both the employment tribunal and the EAT may have been influenced by a suspicion (which emerges quite clearly without being stated) that the employer may have deliberately timed its announcement of the outcome of the appeal for the last day of the original period in the hope that it might induce Mr Bevan to miss the deadline.

Although the outcome is clearly just, it is difficult to reconcile it with the statutory provisions: rather, it appears to be an expression of the view that it ought to be permissible to extend time for an unfair dismissal claim on the grounds that it is ‘just and equitable’ in all the circumstances to do so. This is the basis on which time can be extended for discrimination claims; it is difficult to see any good reason for the tougher requirement in unfair dismissal cases to show that it was not ‘reasonably practicable’ to present the claim in time.

Although a Bill to abolish the dispute resolution regime has been published (see previous post), it does not seem likely to come into force until April 2009 at the earliest. Meanwhile, the regime is still law. See paragraphs 1.69 – 1.83 and Chapter 2 of the book for guidance on how to comply, and how employment tribunal time limits are affected.

Or mortally wounded, at any rate. The witch in question is the statutory dispute resolution regime introduced by Part 3 of the Employment Act 2002 and the Employment Act 2002 (Dispute Resolution) Regulations 2004. This is the set of rules by which employees cannot bring claims (most claims other than dismissal) to the employment tribunal unless they have first raised a grievance with the employer and then waited 28 days; and by which awards are adjusted up or down if statutory minimum procedures are not complied with on either side. The proposal to introduce the regime was strongly resisted by almost everyone who responded to government consultation, but it was brought in anyway. To the extent that the criticisms raised in the consultation were addressed at all, they were addressed by making the already Byzantine draft provisions even more complicated.

The predictable – and predicted – chaos ensued. The EAT had to tie itself in knots trying to make some kind of sense of provisions that had not been properly thought out and at various points simply did not work. Lawyers, advisers, trade unions, industry and the judiciary were united in condemning the regime. There was further consultation in which everyone who had told the government on the first consultation that the regime was a bad idea when it was proposed pointed out that implementation had merely served to demonstrate that it was an even worse idea than they had thought.

The Employment Bill, introduced in the House of Lords last week after an elaborate consultation culminating in the Gibbons review, proposes wholesale repeal. The dialogue belongs in the realms of panto:

Government: Shall we do something amazingly stupid?

Consultees [shouting all together]: No!

Government [spending lots of money]: What did you say?

Consultees [shouting even louder]: NO!

Government: Ok then, we’ll do it.

Consultees: [Groan]

[COMEDY SONG AND DANCE ROUTINE: The Change Management Waltz, in which tribunal judiciary, staff, advisers and litigants whirl around and trip over piles of paper and one another. A chorus of Change Managers sings The output will be a strategic direction.]

Government: There! Do you like it?

Consultees: No, we hate it! We told you it was a terrible idea. You didn’t listen.

Government: Oh dear! We thought you’d like it. Whatever shall we do?

Consultees: Repeal it!

Government: Tell you what [slaps its thigh and winks] – let’s commission a review!

Consultees [getting tired]: Go on then.

Michael Gibbons: The Government has asked me to ask you what you think of the dispute resolution regime…

Consultees [wearily]: We still hate it.

Michael Gibbons: It had better be repealed.

Government: Oh. Don’t they like it? All right then, we’ll repeal it.

It would be interesting to know the total cost of this performance.

(No criticism of Michael Gibbons or his review is intended, incidentally: he did the job that he was asked to do fast and efficiently, and came up with the right answer.)

Thanks to Daniel Barnett, one of whose email bulletins brought the glad tidings to us.

If you are trying to settle a case the day before the hearing, bear in mind that you cannot safely assume that the case is settled before either (i) both sides have signed a compromise agreement, or (ii) both sides have told ACAS that they are happy with the same COT3 wording. If you haven’t got to this point before everyone goes home for the evening, you have to assume that the case may yet go ahead. In that event you will need to go to the tribunal: probably you will be able to to put the finishing touches to the agreement then, but if negotiations come unstuck at that late stage you will need to be ready to fight the case.

This means that it is important to make sure that everyone knows how much time you have to achieve a settlement. If your client is going to be out of contact for any reason after a certain time, you need to know this. But don’t confine your inquiries to your own side: the settlement process will be just as surely derailed if when you think you are nearly there, the solicitor on the other side suddenly can’t get hold of her client. There is no reason why you shouldn’t say something like ‘I think we are nearly there, but I’m conscious of the time – can you make sure your client is going to be available to give you instructions until as late as necessary this evening?’ If it turns out that the decision-maker is planning to catch an afternoon flight in order to attend the hearing, then he will be out of contact once he gets on the plane. The sooner you know that that is your effective deadline for settlement, the better. If you are using ACAS, find out as well how late your ACAS officer will be available.

Until the tribunal hearing starts a good deal of your work will be getting in touch with people to ask them questions, send them documents or otherwise communicate with them.

Unfortunately, people do forget to charge their mobiles, don’t check their email or fail to put paper in their fax machines. This can be a serious problem if it happens at the wrong time.

It is therefore sensible to get into the habit of collecting as many different ways of contacting people as you can. Get their phone numbers, mobile numbers, email addresses, fax numbers, post addresses and anything else you can think of. If you later discover a new way of reaching them, make sure you write it down with the others.

But just because you can contact someone in a particular way, doesn’t mean you should. You might know the other side’s solicitor’s mobile number. This does not mean that it is appropriate to ring him in the middle of the night to discuss discovery. On the other hand, if some dreadful crisis occurs the evening before the hearing, he may appreciate the call.