There’s quite a common belief that employment tribunals don’t award compensation for future loss beyond 3 or 6 months.

Other things being equal, this isn’t a bad rule of thumb. If there’s no good reason to suppose that you are going to have particular difficulty getting another job, or that even if you get another job it will be at a much lower salary than your old job, but you haven’t in fact got another job by the time of the hearing, the tribunal hasn’t got very much to go on. And that is precisely where a rule of thumb comes in handy: it helps you out when you don’t know what to do.

But the other things being equal bit is important. Sometimes other things are not at all equal. If you really do think that there is some reason why you are at a serious disadvantage in the labour market, and your career is not likely to be back on its old track for years if ever, then tell the tribunal all about it and ask for compensation for the whole of your loss.

You will be much better placed to make good a claim of this nature if you have found another job by the time of the hearing. This is because that fact in itself is a powerful piece of evidence about your strength in the labour market and your likely future earnings. Where a claimant has not yet got another job at the time of the hearing, tribunals often assume – perhaps unrealistically – that when they do get another job, they will match their old earnings so their loss will cease at that point. So they make a guess as to how long that will be – and the guess often is 3 or 6 months – and award lost earnings for that period only.

If on the other hand you’ve got another job on significantly less pay at the time of the hearing, the tribunal has much more information to go on. The fact that you have accepted a lower-paid job is a pretty convincing demonstration that you can’t do better at the moment: certainly the tribunal will take a lot of convincing that you’ve deliberately taken a badly paid job in order to inflate your claim.

You can also make more confident and better-founded predictions about the future once you have found another job. You may be in a position to say, for example, that you intend to stay in this job for at least 2 years because you don’t want a fragmented CV; or that although this job isn’t very well paid at the moment, it is sensible for you to stay in it because it is with a large and copper-bottomed employer and you think your chances of promotion in between 3 and 5 years are good; or that you have been lucky to get a job with hours that make it possible for you to take a part-time college course to retrain for a change of career that will allow you to earn better in future – but not for another 5 years.

If you have plans or expectations of this sort, don’t limit yourself to claiming a few months’ future loss. It is important to be realistic, of course, so don’t – either – make wild claims that you can’t support with evidence.

In general, arguments don’t gain anything by being repeated. This is particularly true in inter-parties correspondence.

This does not prevent people writing essentially the same letter more than once. This can, and does, reach ridiculous proportions. A common bad example is respondent solicitors who send letter after letter declaiming that the claimant’s case is misconceived and that they will be seeking costs. But claimant’s can also make the same mistake – often making repeated disclosure requests for the same material, after the respondent has indicated that they are unwilling to provide it.

The strategy behind this approach appears to be that, although the first couple of letters were fruitless, when the third arrives the other side will be struck by your arguments and reverse course.

This doesn’t work.

If your first letter doesn’t work you normally have three options:

Escalation

In tribunal litigation this means going to the tribunal. If the other side is refusing to disclose documents, then ask the tribunal to order them to do so. If you believe their response is misconceived, you might want a PHR to strike part of it out.

While it is sensible to agree as much as possible with the other side, litigation is adversarial. It is the tribunal’s job to resolve matters when agreement can’t be reached.

Argument

Sometimes you can actually change the other side’s mind. It is often worth elaborating on your arguments or ringing them up to discuss things. The point is that if your original letter didn’t work, you need to try a different approach, rather than repeat the one that didn’t work.

Do nothing

Quite often the sensible approach is masterful inactivity.

Say you are discussing what the relevant issues are, and the other side wants to include something that is clearly irrelevant. It is sensible to discuss it and try to change their mind. But, in the end, you can’t stop them bringing it up and there is normally no point bringing the tribunal in at that stage. The best course is to say “I think that’s irrelevant, but if you disagree, the tribunal will have to deal with it at the hearing”. Then at the hearing put the question to the tribunal.

Similarly, sometimes you are writing to put the other side on notice of something. For example, you may need to tell them that you intend to make an application for costs. Once you have done so, it is often pointless to discuss the issue further. They are unlikely to agree that they should pay costs; you are unlikely to agree not to seek them. Of course, the situation may change, or somebody may propose a compromise. But there is no point in engaging in prolonged correspondence that boils down to ‘Oh, yes it is’ / ‘Oh, no it isn’t’ / ‘Oh, yes it is’…

One of the (many) unfortunate consequences of the Dispute Resolution regime is that it encourages employees to raise formal grievances about everything in sight, even – in fact particularly – after they have decided that they can’t solve their workplace problems by talking to their employer and are going to have to bring an employment tribunal claim.

To an extent, while the regime is still in force (as it will be until April 2009 at the earliest), this is unavoidable: most employment tribunal claims apart from complaints of dismissal must be preceded by internal grievances, or the tribunal won’t have jurisdiction to hear them.

That’s bad enough – it means that everyone concerned has to write letters and attend meetings that are not much more than a dress rehearsal for the tribunal. Fat wodges of paper are created that have to be included in the bundle for the tribunal, and that lawyers or representatives will have to read, but which will rarely be of much interest to anyone when it comes to a hearing.

Try not to make this problem worse by raising more grievances than you need to to found your claim. Cases aren’t won by boring the tribunal into submission. Everyone involved in your case will get tired and fretful if they have to wade through endless pages of grievances about matters not capable of founding a claim, appeals against the employer’s decision about who is to conduct the grievance, grievances about the manner in which the employer has conducted that appeal, further grievances about the manner in which the previous grievance about how the first grievance was conducted were conducted – and so on.

Very occasionally the conduct of a grievance will itself amount to an actionable claim. But much more often – even if you feel angry about the way the grievance has been conducted – it will be better to draw a line under the internal grievance and take your complaint to the employment tribunal instead.

One of the first things you will do when you arrive at the tribunal is size up the opposition. This is part of human nature – and potentially useful: you want to know what you’re up against. Your opponent’s choice of hot drink is a key ‘tell’ which it is essential that you learn to read. Here is a rough and ready guide:

Black coffee: A solid, if unexciting, performer.

White coffee: Also solid, but may be a little more inclined to settle.

With sugar: Sugar in this context is a sure sign of trouble. Anyone taking sugar has probably spotted some horrible hole in their case and is steeling themselves to meet it. Or they may just have a sweet tooth. Unfortunately the latter does not necessarily equate to a sweet disposition.

Espresso: A hard bitten, driven and ruthless opponent. Will not want to settle and is a formidable cross-examiner.

Double espresso: Got the papers yesterday evening and has spent the night trying to figure out what the case is about. Consequently is barely awake. Try to time any complex legal argument for mid-afternoon when they’ll be least able to cope with it.

Latte: Doesn’t really like coffee. Which means they can’t be a real lawyer.

Cappuccino: Isn’t taking the case seriously. They’re either very confident, or will make an settlement offer before the tribunal starts.

Tea: Excellent client handling skills, but may be weak in tribunal.

Chamomile tea: Very anxious and probably also short of sleep. Progressed from double espressos to Pro-Plus as the night wore on and is now trying to calm down enough to hold the same thought for two consecutive seconds. Might do anything.

Other herbal tea: Difficult to read. Either a laid back hippie type, who has strayed in by accident from a yoga class. Or a zen master of tribunal-fu.