2004 was a good year for bad ideas in the employment litigation field. One of the minor bits of foolishness was to limit the involvement of ACAS in most cases to specific conciliation periods. This meant that, in many cases, by the time both sides were ready to talk ACAS had already withdrawn their help.

ACAS did have a discretion to extend the conciliation periods, but tended to exercise it carefully in an attempt to implement the government’s intentions.

Since the government has now reversed themselves and intends to abolish conciliation in the new Employment Bill, ACAS has decided to change its approach. From the 1st April it will exercise its discretion to extend the conciliation period in all case. In practice, this means that there will be no time-limit on ACAS conciliation.

Thanks to Daniel Barnett, who’s bulletin brought us the good news.

We’ve added a Resources page to the site that gives details of other useful sources of information.

There are two sources of law in the employment tribunals. One is legislation: the law passed by Parliament. The other is case-law, some of which consists in the courts’ interpretations and explanations of legislation, and some of which is what is called ‘common law’ – law that doesn’t come from legislation at all, but has been developed over the years by the courts.

These are broad headings. They do not take into account the differences between Acts of Parliament and Regulations. Or deal with the significant role European legislation and case-law has on tribunals.

The point is that there is a lot of useful information out there that is not the law. What you read in a text book; a handbook; a magazine; a leaflet; or the internet (including this blog) is not the law. It is a description of the law. The same is true even of a book written by a judge, or a leaflet produced by a government department, or ACAS, or the Employment Tribunal Service.

There are two important consequences of this. Firstly, descriptions can be wrong. Employment law moves relatively quickly. A book written a few years ago is likely to include dozens of points that were quite right at the time but where things have changed. And people – even lawyers – do make mistakes.

Even if your sources are up to date and accurate they will be a summary of the law. Often this is all you need, but on important points it can be useful to go directly to the source. Reading a brief review of an area in a book will never give you the sort of detailed knowledge that an afternoon sweating over the legislation and half-a-dozen cases will.

The other point is that the tribunal is only bound by the law itself. If you want to convince them of something, you will normally need to do it by referring to legislation and case-law, rather than a book.

There is a difference here between the tribunals’ expectations of lawyers and lay people. A lawyer who advances a legal proposition without being able to back it up by reference to legislation or case-law is likely to get a flea in her ear from the tribunal – and deserve it. A litigant in person who says ‘I think it’s like this; I found it in this book’ can expect the tribunal to meet her halfway.

None of this is to say that secondary sources of information are not valuable. They are extremely useful, even vital, sources of information, analysis and advice. But they are a map of the legal landscape, not the landscape itself.

Many appeal cases are not finally resolved by Employment Appeal Tribunal. So when running an appeal case, you need to consider the possibility of it returning to the tribunal. Lawyers describe this as a case being remitted.

The best way of deciding whether the EAT will remit a case is to consider what decisions they are in a position to make.

If the only decisions are legal ones, about what the applicable law is, the appeal court will be able to make these decisions and issue a final judgment. If there will be need to be further findings of fact, the EAT is unlikely to be able to reach useful conclusions. They did not hear the original evidence and will generally not hear evidence during the appeal hearing. They are simply not able to make sensible decisions about which witnesses to believe or whose testimony to accept.

If a case is likely to be remitted, it is important to remember that what matters is the final outcome of the case, not just the outcome of the appeal.

This means that some appeals should not be started, even where the tribunal has erred in law, because the chances of victory in the remitted hearing are remote. It is not sensible to go through the stress of continuing the litigation if, after the appeal and a rehearing, you are going to be left exactly where you started.

It also means that you should give some thought to what will happen once you get back to the tribunal. In some cases it will matter very much which ground of appeal you win on, because one ground is more likely to give you victory in the tribunal than another.

You should also consider whether the EAT will send the case back to the same tribunal or to a different one – and what you want them to do. This needs to be done carefully. Appellants will normally want a new tribunal. After all, the old one decided against them. The EAT, on the other hand, will be reluctant to restart a case from scratch without a good reason.

Finally, bear in in mind that a successful appeal is often a decision point on settlement. People often do not want to return to the tribunal. And appeals often clarify the issues to the point that settlement becomes possible. It is worth being ready to respond to an offer from the other side or to make one yourself, once you have the decision.

Do you have any practical insights about running an employment tribunal case that you would be willing to share with other users of this blog? If so, please email us: ideas@etclaims.co.uk. If we decide to use your idea, we will credit it to you (unless you tell us you would prefer to remain anonymous).

Respondents’ lawyers often say that they will apply for costs in the employment tribunal if the claim is not withdrawn or settled. Sometimes they say that they will apply for ‘up to £10,000,’ and sometimes they threaten even larger sums. If you are not a lawyer and don’t have access to specialist advice, it can be hard to know how seriously to take these threats.

The first thing to note is that the usual rule in the employment tribunals is that each side pays its own costs, win or lose. You don’t have to pay the other side’s costs just because you have lost the case. In general, the employment tribunal only awards costs if the conduct of one side has been “vexatious, abusive, disruptive or otherwise unreasonable” or if the claim was “misconceived.”

The “vexatious, abusive, disruptive or otherwise unreasonable” part of this is relatively straightforward. It basically means that you have to fight the case in a reasonably civilised and co-operative manner. If you try to ambush the respondent with new factual allegations or documents they haven’t seen before at the last minute, or send them pages and pages of detailed questions on irrelevant matters, or repeatedly fail to comply with the procedural timetable set by the tribunal, or fail to turn up to the hearing without a good excuse, or telephone their witnesses and shout at them (and so on), then you may well face a costs application on this basis.

“Misconceived” is much trickier. Your claim is misconceived if it has ‘no reasonable prospect of success.’ Some claims are so weak that anyone ought to be able to tell at a hundred paces that they are hopeless. If you are an airline pilot who arrived for work drunk, and you were dismissed after a disciplinary hearing and an appeal, at both of which you were represented by your trade union, then your unfair dismissal claim is hopeless, and you shouldn’t need a lawyer to tell you so.

But often when the respondent’s lawyers tell you that your claim is misconceived, they will be relying on some legal technicality: you are a ‘worker’ but not an ‘employee,’ so you don’t have a right not to be unfairly dismissed; you were a student, and not a ‘worker,’ so your discrimination claim must be brought if at all in the county court not the employment tribunal; your claim was presented too late, or too early, or had not been preceded by a valid grievance. Or they will simply be saying that the claim looks weak on the basis of the way it has been put in your ET1 and/or witness statements.

These things are much harder to judge if you are not a lawyer. If your claim is listed for several days or even some weeks, and the respondent’s lawyers are telling you that it is misconceived and threatening to apply for £10,000 or £50,000 or even £100,000 in costs, you are likely to feel thoroughly intimidated. If you can’t afford your own legal advice, the chances are you simply do not have this kind of money. A costs order on this scale might mean losing your home, or bankruptcy.

One tactic you can try in these circumstances is to treat the tribunal itself as a source of legal advice. Write a letter explaining that the respondent is threatening you with costs, and ask for a pre-hearing review to consider the question whether your claim has any reasonable prospect of success.

Here is a sample letter showing how you might put an application like this.

A lot of legislation is in the form “Something will be true, in the following circumstances”. For example, Section 1 of the Sex Discrimination Act 1975 begins “…a person discriminates against a woman if-”, then goes on to describe the situations that will be Direct Sex Discrimination.

Statutes, and the law they create, are often complex and these provisions can be difficult to understand. A common mistake is confusing circumstances linked by ‘and’ with those linked by ‘or’, and vice versa.

‘And’ lists

s3(2) of the Employment Act 2002 (Dispute Resolution) Regulations 2004 sets out the circumstances where the Modified Dismissal and Disciplinary Procedures will apply. It is an ‘and’ list.

3(2) Subject to regulation 4, the modified dismissal procedure applies in relation to a dismissal where-

1. the employer dismissed the employee by reason of his conduct without notice,
2. the dismissal occurred at the time the employer became aware of the conduct or immediately thereafter,
3. the employer was entitled, in the circumstances, to dismiss the employee by reason of his conduct without notice or any payment in lieu of notice, and
4. it was reasonable for the employer, in the circumstances, to dismiss the employee before enquiring into the circumstances in which the conduct took place,

This means that, for the Modified Dismissal Procedures to apply, subsections (a), (b), (c) and (d) must all be true.

‘Or’ lists

s7(1) of the same regulations, however, is an ‘or’ list. It sets out circumstances where the grievance procedures apply, but the parties are treated as if they have complied with them, provided the employee has sent a written statement of grievance to the employer:

7(1) Where the grievance is that the employer has taken or is contemplating taking relevant disciplinary action against the employee and one of the reasons for the grievance is-

1. that the relevant disciplinary action amounted to or, if it took place, would amount to unlawful discrimination, or
2. that the ground on which the employer took the action or is contemplating taking it were or are related to the grounds on which he asserted that he took the action or is asserting that he is contemplating taking it

the standard grievance procedure or, as the case may be, modified grievance procedure shall apply but the parties shall be treated as having complied with the applicable procedure if the employee complies with the requirement in paragraph (2). [The requirement in paragraph (2) is that the employee send the employer a written statement of grievance.]

This means that the grievance procedures will apply, but the parties treated has having complied with them, if the circumstances described in subsection (a) or (b) are true (provided the employee has also put the grievance in writing).

Notice that both sections have hidden ‘and’ conditions. In 3(2) ’subject to regulation 4′ adds to the other requirements ‘and none of the circumstances in regulation 4 are true’. In 7(1) ‘if the employee complies with the requirement in paragraph (2)’ means that, in addition to either ‘a’ or ‘b’, the employee must have put their grievance in writing.

Nested lists

Also common are nested sets of circumstances, so ‘and’ and some ‘or’.

For example, regulation 6(3) describes the circumstances in which the Modified Grievance Procedure applies:

6(3) Subject to paragraphs (4) to (7), the modified grievance procedure applies in relation to a grievance procedure applies in relation to a grievance where-

1. the employee has ceased to be employed by the employer;
2. the employer-
   1. was unaware of the grievance before the employment ceased, or
   2. was so aware but the standard grievance procedure was not commenced or was not completed before the last day of the employee’s employment; and
3. the parties have agreed in writing in relation to the grievance, whether before, on or after that day, but after the employer became aware of the grievance, that the modified grievance should apply

For the Modified Grievance Procedure to apply, then, you need the circumstances in (a), (b) or (c). But (b) is an ‘or’ list so either set of circumstances (the employer being unaware of the grievance before employment ceased or not having completed the grievance procedure before employment ended) will satisfy it.

Practical suggestions

Unfortunately, this is one of those topics where there is no magic solution. Reading and understanding legislation is just difficult.

The most important thing is to accept this. Nobody can read a statute as they would a letter or novel. It has to be taken slowly and carefully.

Some people find it useful to highlight the important parts of the section. Others will rewrite the relevant parts in their own words. Still others draw complicated diagrams on a piece of paper. Sometimes beginning to draft submissions to the tribunal will help.

It also helps to look at commentary on the legislation. For example, if you have a book that describes the statutory dispute resolution procedures read it first. Once you have the general idea of what the legislation means, it it often easier to follow.

But whatever approach works best for you, the key is to go step by step, making sure that you understand the first part before moving onto the second and so on.

And if all else fails, put it down, take a break, and come back to it. It will often be much clearer on a second look.

There will be a water jug and some plastic cups on the table that you sit at when you present your case in the employment tribunal. Bear in mind that if you are at all tense in these circumstances – and there’s something very odd about you if you’re not – you are likely to be clumsier than is usual for you. Or possibly it is just that employment tribunal water jugs and plastic cups are particularly unstable. Either way, it is worth making a mental note to pour your water with care, holding your cup and the jug away from the table, and then put both down well away from your papers, and especially, if you are using one, your laptop.

You will often see people in tribunals responding to what a witness or litigant is saying.

They may raise their eyebrows; roll their eyes; suck their teeth; make the sound ‘tsk’; sigh deeply, grimace horribly or some combination of these and other things.

Don’t join in. It will annoy the tribunal.

If somebody else is speaking during a hearing, you should sit quietly and listen to them. It is fine to leaf through your papers, make a note or whisper briefly if you need to check something with somebody else.

But you must not express your views about what the speaker is saying, unless you are willing to interrupt. Interruptions are sometimes appropriate, especially if you are cross-examining, but should be extremely rare elsewhere.