Your claim form will be one of the first things that the tribunal reads, so it is an important document. If the story you tell there is not complete, easy to follow, and convincing, you will start at a serious disadvantage. The main narrative part of the claim form that you fill in is box 5.1 for an unfair dismissal, box 6.2 for discrimination.

It is probably clearest if you divide the content of this into two main sections. Tell the story in the first part; pin on the legal labels in the second part.

1. Tell the story

Structure is important. It is much harder to follow (and therefore also to believe) a story that jumps around in time and where the reasons why things happened are not clear. Just write down the things that happened that form the basis of your claim, in the order in which they happened (that is to say, in ‘chronological’ order), and in numbered paragraphs.

You don’t need to go into huge detail here. The point of this document is to tell the tribunal what you say happened that gives you a right to compensation or some other remedy. You don’t have to tell them all about why they should believe your version of what happened: you will have a chance to do that later in your witness statement. Just tell them what happened. But you do need to tell them everything that you want to be compensated for: so don’t leave out anything that your employer did that you think was an act of discrimination, or a breach of contract, or in an unfair dismissal case, everything that was wrong with the way they went about making the decision to dismiss you.

At this stage, you don’t need to talk about the law at all. Don’t say ‘this was sex discrimination because… ‘ or ‘this was unfair because…’ – just write down the facts, in order.

Make sure the story doesn’t have any puzzling gaps in it. That is hard to do with a story that your own head is full of, so if possible, get someone else to read it and ask them if they understand what you say happened, and whether it leaves them wanting to ask ‘But why…?’ at any point.

2. Pin on the labels

Once you have finished telling the story, say what you want the tribunal to make of it. This is the moment to spell out what your claims are, in legal terms. It isn’t the place for legal argument – you don’t have to quote cases or recite bits of legislation – but you do need to explain whether you say the things that the respondent did amount to sex discrimination, or race discrimination, or disability discrimination, or unfair dismissal, or a breach of contract (and so on).

If you say you have suffered discrimination, you will almost certainly have to explain a bit more: you will need to say whether you think you have suffered direct discrimination (they treated you worse because of your sex, race etc.) or indirect discrimination (they applied a provision, criterion or practice to you that put you at a disadvantage compared to members of other groups, and they can’t justify it), or discrimination by way of victimisation (they treated you badly because you had raised other complaints of discrimination previously) – and so on.

This part can get quite complicated. Often you won’t know for sure which is the best way to put your claim. You may have to draft alternative claims – this was direct discrimination on grounds of sex, but if it wasn’t, it was indirect discrimination on grounds of sex; then again it may have been victimisation. But when you come to write this part, your task will be easier if you have set out the story clearly in numbered paragraphs first, because you will be able to refer back to those paragraphs and say things like ‘In doing the acts referred to at paragraphs x to y above, the Respondent treated the Claimant (or if you prefer ‘my employer treated me’) less favourably than it would have treated a man in the same circumstances.’

The tribunal has power to order either party to provide additional information or answers to written questions. Requesting additional details of the other side’s statement of case (that is, the employee’s claim or the employer’s response) is often regarded by advisers as a routine part of case preparation.

More often than not, a request for additional information and/or written answers is helpful, and certainly it should always be considered (see Chapter 3 of the book for general guidance on this).

But don’t dream up questions just for the sake of having some questions to ask. Here’s an example drawn almost exactly from life. The culprit happens to be a respondent in this example, but the same principle applies to both sides.

Of: – 3. “On several occasions during this period, Mr Jones patted the Claimant on the bottom as he passed her standing at the photocopier or by her filing cabinet.”

Please explain what is meant by “patted her on the bottom.”

Please provide details of each and every occasion it is alleged that Mr Jones “patted” the Claimant on the bottom, including:
(a) where specifically on the Claimant’s anatomy she claims to have been “patted”
(b) what the Claimant claims to have been patted with;
(c) the date each incident is said to have taken place;
(d) the precise location of each alleged incident.

Questions (a) and (b) are plain daft. What part of ‘patted on the bottom’ does the respondent not understand? Clearly the questioner doesn’t have any real purpose in mind: he just thinks he ought to ask some questions. He has seen someone else’s request for additional information, and he has drafted something that he thinks looks roughly similar.

Questions (c) and (d) are not very much better, in that they are most unlikely either to elicit further information or to produce a tactical advantage for the respondent. Most likely the claimant’s reply will simply indicate that she does not know either the precise number of occasions on which this happened, or the dates on which it happened. She just knows that it happened a few times.

Sometimes a question that is unlikely to produce further information is nevertheless useful to focus the other party’s mind on the weakness of its case. But it is no particular weakness in the claimant’s case that she cannot say exactly when or how often her boss patted her on the bottom: she may quite credibly have ignored the behaviour, or tried to suppress it by a certain frostiness in her manner, before it escalated to the point that she started to think about a tribunal claim. It certainly doesn’t discredit her claim that she did not record every incident in a contemporaneous diary.

A telephone conversation, overheard in the FRU office, several years ago:

Mr Smith, you’ve told me what happened. It seems to me that basically you’re saying that your ex-boss is a bit of a git.

Now, I’ve heard what you’ve got to say, and I’ve read the documents. You know what? I agree. He is a bit of a git.

So, what’s going to happen next, is that we’ll turn up to the tribunal on Monday and they’ll hear the case. And I bet they’ll think he’s a bit of a git too.

The problem, Mr Smith, is that being a bit of a git isn’t actually against the law.

The moral of the story is that tribunals are there to decide whether the respondent has broken the law, not to make general judgements about the parties involved.

Often litigants (on both sides) will spend a lot of time and effort throwing mud at each other about their business practices; quality of work; management decisions; criminal records; sexual morality and even personal hygiene.

Sometimes this is relevant. A capacity case, for example will often revolve around the claimant’s competence in their job. And if the claimant’s case is that the problems had been caused by inadequate support by his management their decisions will need to be examined. In a whistle-blowing case you may spend a good deal of time considering the respondent’s efforts to avoid their obligations to Her Majesties Revenue and Customs or the Health and Safety Executive.

Even if it is not strictly speaking relevant, mud slinging can be effective. A tribunal who feels that one side has been hard done by or mistreated is likely to be influenced by that impression. Trying to make yourself look good at the expense of the other side is part of the game.

But the old adage about it being hard to throw mud without getting some of it on you applies. Irrelevant accusations or criticisms will almost always do you more harm than good. Making accusations without evidence makes you look paranoid.

In general, therefore, it is sensible to keep all blows above the belt. Always remember that your aim is to prove your case, not prove that your opponent is a bad sort.

Where a term has a specific legal meaning in the employment context avoid using it outside that context.

For example, anybody who has been bullied at work can sensibly say he has been harassed. The Oxford English Dictionary defines harassment as ‘to subject (an individual or group) to unwarranted (and now esp. unlawful) physical or psychological intimidation, usually persistently over a period; to persecute. Also more generally: to beleaguer, pester.’ This is a good description of bullying

But employment lawyers will associate harassment with discrimination cases, where harassment is a specific sort of claim. To use it in the more general sense risks confusion.

Similarly, be careful with the words ‘victimisation’, ‘discrimination’, ‘whistle-blowing’ and even ‘unfair’. If you are not using the technical meaning, it is better to choose a more neutral word. ‘Bullying’ is often useful, as is ‘intimidating’ or ‘threatening’.

On the other hand, if you are talking about a specific concept it is sensible to use the specific word. A women who has been bullied because of her gender has been sexually harassed. If you only say that she has been bullied it may not be immediately clear what sort of claim you are making.

Courtroom dramas are filled with beautiful people who, at the slightest provocation, leap to their feet to shout “I object!”

Of course, real life in the employment tribunals is not like this. But a lot of litigation is similar. One side will want to do something, or do it in a particular way, while the other side tries to stop them.

A lot of these arguments are important. Many are not. But people (and lawyers are some of the worse) often fall into the trap of objecting to everything the other side tries to do.

This is foolish for several reasons. It makes litigation far more emotionally stressful than it needs to be – and it is already quite stressful enough. It is also tactically unwise. If every single possible point becomes an epic battle two things will happen. Firstly, the case will take longer than it needs to. There will be more hearings, more correspondence, more phone calls and more work. This is bad for everyone.

Even more damagingly, taking bad points will obscure your good points and damage your credibility.

Imagine that you are in a case management discussion where a tribunal has to deal with four issues. Three of these are unimportant. The final point is vital to your case.

Then imagine the following approach:

Opposing Counsel: Sir, on the first point we suggest this…

You: I object to that, because..

Later…

Opposing Counsel: On the second point, I submit that…

You: That’s completely wrong. I say….

Later…

Opposing Counsel: Well, I hope we can agree on the third point.

You: Certainly not. I submit…

Much later…

Opposing Counsel: Finally, Sir, we need to deal with disclosure. It really is disproportionate to ask my client to disclose the documents the Claimant asks for. The request is far too wide…

You: Some of those documents are vital to my case. They are directly relevant, because they deal with how other employees in the same circumstances were treated…

You might win the last point, but, you may well be starting from behind. If the issues were unimportant, or worse, ones where you had no real grounds to object, you will have turned the tribunal against you.

This is not unreasonable. Tribunals will judge you on what points you take and how you take them. They will do their best to take each point on its merits. But if they conclude that you will object to everything and will rarely have good reasons, they will stop taking you seriously.

Then consider the alternative approach:

Opposing Counsel: On the first point…

You: That’s fine.

Opposing Counsel: On the second point…

You: I have no objection to that.

Opposing Counsel: On the third point…

You: I can agree to that as well.

Opposing Counsel: Finally, on the fourth point…

You: I’m afraid I can’t agree here. Those documents are important and relevant. My case is based on disparity of treatment. Evidence of how other people in the same position were treated is vital to my case…

Now, far from being handicapped, you will be starting with an advantage. The initial reaction from the tribunal will almost certainly be “He didn’t object before. He wouldn’t be arguing here unless there was a good point to make”. They will listen to you with more sympathy and with greater attention. You are more likely to win the point.

This is not a magic wand. Letting three points go past doesn’t entitle you to win the fourth one. But if the first three points don’t matter, you are not giving anything up by conceding them. And the advantage on the final issue might be decisive.

This approach can, of course, be taken to far. Sometimes the respondent will be unreasonable and you will have to fight everything to prevent them running over you. Occasionally, even if both sides act well, the case is just one where there can’t be much common ground. In those cases there is nothing to do but fight.

The point is to fight the issues that matter. That is, to fight the ones that will determine who wins the case.

When it comes down to it, litigation is a series of rather formal meetings, interspersed by phone calls and letters.

This means that many of the same rules for running good meetings apply to running cases.

One of these is that there should always be an agenda. Whether you are in the tribunal or on the phone to the respondent, you should know what issues you are going to discuss and what you are trying to achieve.

There is no need to make a meal of this. A few lines scrawled on the back of an envelope saying “Discovery – Disciplinary Code and Minutes of Sep Meeting. Bundles – Next Tues?” may be plenty for a phone call to the Respondent’s representative. Often you won”t need to write anything. The point is to spend a few moments making sure you know what you need to get done.

The more complicated and lengthy the meeting the more detailed the agenda will become. Hearings will often generate many different agendas. For example, you may have a list of things you need to discuss with the Respondent before the hearing, preliminary matters the tribunal will need to deal with, areas you need to cover with each witness and, finally, points to make in your submissions. At this point, most people (definitely including the blog’s authors) will need to write things down to make sure everything is covered.

Once you have an idea of your agenda it is often worth trying to agree at least some of it with the other side. In many hearings this has implicitly been done once the issues in the case have been determined and you have exchanged witness statements. These form the agenda for the hearing. But in preliminary hearings, particularly about case management issues, you will start from scratch. The hearing will be infinitely easier and more productive if you have decided ahead of time what you need to cover. The ideal is to be able to say to the tribunal something like “Sir, the parties have been discussing the necessary case management orders. We’ve been able to agree a time table for discovery, production of bundles and exchange of witness statements. We’ve also been able to agree the list of issues. We’re in dispute about the way the medical evidence should be dealt with…”

Even if you can’t agree anything on the agenda, the hearing will be much easier if you agree exactly what it is that you’re disagreeing about.

The final point to bear in mind is that in litigation you will never have complete control over the agenda. The other side will have their own ideas and the tribunal will be in charge during the hearing. It is all too common for cases to devolve into pitched battles, not about the issues in the case, but about what the issues are. Try to avoid this.

Lawyers often talk about ‘arguments in the alternative’. It is one of those useful bits of jargon that, as well as being a handy shorthand, reveals a way of thinking about a case.

An argument in the alternative is one in the form: A is true, but if A is not true then B is true. This is not nearly as complicated as it sounds. For example:

My dismissal was unfair, because I was dismissed as a result of making a protected disclosure. This was an automatically unfair reason for dismissing me.

But, if I was not dismissed for making a protected disclosure, my dismissal was still unfair, because I nothing I had done justified being dismissed.

The claimant’s first argument is that the reason for her dismissal is automatically unfair. If she succeeds in this submission she will win the case. But, if she does not, she has a second argument, that the dismissal lay outside the range of reasonable responses. This is the argument in the alternative. If she wins on the first point it will be unnecessary, but the alternative needs to be put forward, in case the first argument fails.

The structure and concept of arguments in the alternative is useful. It is helpful to identify what your main case is, and what you say if it does not succeed.

There are a few traps to avoid.

Firstly, often you will be making a number of arguments about the same facts. For example, that a termination was both unfair dismissal and also an act of discrimination. This is not an argument in the alternative. You are not saying that the dismissal was unfair, but if it wasn’t then it was discrimination. The argument is that the act was both unfair dismissal and discrimination.

Secondly, there are good arguments in the alternative and bad ones. Sometimes this is clear cut. The criminal who says “I wasn’t there. And if I was there, it wasn’t me who shot him. And if I did shoot him, it was self defence” is not going to be believed. If you are giving evidence, and you know what happened, that is what you must say. It is extremely damaging to try to offer several inconsistent accounts.

A similar point is the danger of making too many points and detracting from your best ones. In many cases, it is more sensible to focus on a few strong points, rather than offering endless arguments in the alternative. This is often a difficult judgement to make. A useful approach is to ask yourself “If I lose arguments A, B and C, is there a real possibility I might win the case on argument D?”. If there is it is worth arguing. If, by the time you have failed with arguments A, B and C, there is no real chance that D will succeed, it is probably better to focus on convincing the tribunal of A, B and C.

George Orwell put the more general point (of which ‘aforesaid‘ is a special case) in his essay Politics and the English Language (1946):

Here is a well-known verse from Ecclesiastes:

I returned and saw under the sun, that the race is not to the swift, nor the battle to the strong, neither yet bread to the wise, nor yet riches to men of understanding, nor yet favour to men of skill; but time and chance happeneth to them all.

Here it is in modern English:

Objective considerations of contemporary phenomena compel the conclusion that success or failure in competitive activities exhibits no tendency to be commensurate with innate capacity, but that a considerable element of the unpredictable must invariably be taken into account.

This is a parody, but not a very gross one. It will be seen that I have not made a full translation. The beginning and ending of the sentence follow the original meaning fairly closely, but in the middle the concrete illustrations — race, battle, bread — dissolve into the vague phrases ‘success or failure in competitive activities’. This had to be so, because no modern writer of the kind I am discussing — no one capable of using phrases like ‘objective considerations of contemporary phenomena’ — would ever tabulate his thoughts in that precise and detailed way. The whole tendency of modern prose is away from concreteness.

Now analyze these two sentences a little more closely. The first contains forty-nine words but only sixty syllables, and all its words are those of everyday life. The second contains thirty-eight words of ninety syllables: eighteen of those words are from Latin roots, and one from Greek. The first sentence contains six vivid images, and only one phrase (‘time and chance’) that could be called vague. The second contains not a single fresh, arresting phrase, and in spite of its ninety syllables it gives only a shortened version of the meaning contained in the first. Yet without a doubt it is the second kind of sentence that is gaining ground in modern English. I do not want to exaggerate. This kind of writing is not yet universal, and outcrops of simplicity will occur here and there in the worst-written page. Still, if you or I were told to write a few lines on the uncertainty of human fortunes, we should probably come much nearer to my imaginary sentence than to the one from Ecclesiastes.

In the modern world of employment litigation there is no situation where it is appropriate to use the word “aforesaid”.

This is one of those rare rules to which there are no exceptions.

Gross misconduct is misconduct so serious that the employer is entitled to dismiss for a first offence. What that means depends in part on the individual workplace. Some offences will almost always be gross misconduct, whatever the character of the workplace. For instance, fighting, stealing, arson and deliberate falsification of time-sheets will mostly be in that category. (Though even in these extreme cases there is a need for some commonsense. If it is standard practice in a particular workplace that you always claim an hour’s overtime if you have stayed past your finishing time at your supervisor’s request, then a time-sheet that is on its face inaccurate may not in fact be dishonest.)

Other conduct may be regarded as intolerable in one workplace, but widely accepted in another. Attitudes to smoking make a good example. Some employers will slap your wrist for an infringement of the rules about where you may smoke, but if you work on an oil rig you can expect to be on the next helicopter home for smoking in a prohibited area. Drugs and alcohol provide another example: if you are an airline pilot, attending for work under the influence will almost certainly be a sacking offence. For other employers, alcohol in particular may not be taken seriously unless it starts to affect performance. (And if part of your job is to take clients out to long boozy lunches, not drinking might even be regarded as problematic.)

In general, employers that want to enforce higher than average standards have to make it clear where the limits lie. The stricter they want to be, the more careful they must be to make sure everyone is aware of the rules. If your company handbook lists fighting, stealing and gross insubordination as gross misconduct, then you can expect some warnings before you are sacked for lateness. But if the handbook spells out that in this industry punctuality is essential and lateness will be treated as gross misconduct, then gross misconduct it almost certainly is.