In most cases the tribunal will at some point send out a case management order. In a straightforward case, they will probably do this on their own initiative once the ET3 has been received. In a more complicated case, they will list a case management discussion to discuss what directions are needed.

Typically, the case management will say when the parties should disclose to each other the relevant documents in their possession, who should be responsible for compiling the hearing bundle, when witness statements should be exchanged. If the ET1 is thought not to contain adequate detail, it may require the claimant to give further particulars; if so, the respondent will be asked to give further particulars of their response in reply. If there is a need for medical or other expert evidence, it will set out the arrangements for that.

What do you do with a case management order?

Comply with it.

The first thing to do when you get a case management order is to highlight all the dates by which anything is to be done, and put all of them in your diary. That’s all of them – not just the dates by which you have to do something, but the dates by which the other side has to do something too.

If the respondent falls asleep and misses one of their deadlines, their lateness can be viewed in two ways: either as an excuse to take a nap yourself; or as an opportunity to take up a position on the moral high ground. Choose the moral high ground: it’s a good place to be.

Point out to the other side (politely, but at once – this is why it is good to have their dates in your diary as well as your own) that they are late. Make a proposal for an adjusted timetable, if their lateness really means that you will need more time for your next step – but if possible, try to get straight back on track, even if that means that you have to work fast. If the respondent’s slumber continues undisturbed, keep chasing them. This is about the only situation in which multiple letters making the same point are any use: a series of polite but gradually escalating reminders will stand you in good stead when it comes to your application to have the respondent struck out, or ordered to pay your costs:

The gist of these chasers would go something like this:

letter 1

“you’ve missed your deadline for doing X – when are you going to be able to do it?”

letter 2

“your failure to do X is causing us all kinds of problems, please do it as soon as possible”

letter 3

“please do X, you’re now very late and if you don’t do it the hearing will be chaos and the tribunal will get cross”

letter 4

“if you don’t do X very soon indeed we will apply to have you struck out”

At the same time, comply with all your obligations obligation as best you can anyway – even if they have made it difficult for you. You may even have to take on some of their jobs yourself, if for example they have been given the task of compiling the bundle but are hopelessly late with it.

Above all, remember that it is your case: ultimately it is for you to make sure, so far as it is in your power to do so, that by the time the hearing date arrives, the case is ready to be heard. The best possible outcome for you if the respondent has fallen fast asleep is that they get their response struck out so that they are not allowed to take part in the hearing. That will make your life much easier – but you will still have to prove your case, so you will need a witness statement, a bundle of documents and a schedule of loss.

If the claimant and respondent in an employment tribunal case are going to negotiate, the time they are most likely to do it is in the last few days before the hearing.

This is also the time when final preparations for the hearing need to be done. By the last few days before the hearing, you should have agreed a bundle and exchanged witness statements, and you will be about to start familiarising yourself with the bundle and doing your final preparation for the hearing. If the bundle and witness statements aren’t in place by this point, you’re badly behind already and need to work fast.

This creates a dangerous pit-fall. Negotiations tend to take on a momentum. There often comes a point where, although you don’t yet have a deal, both sides are pretty sure that it is only a matter of time and a bit more haggling until they do. It is terribly tempting when that point arrives to put preparation on one side on the assumption that the hearing is not now going to happen.

It’s a good temptation to resist. Negotiations can, and sometimes will, come horribly unstuck at a very late stage on a point that no-one had realised was important until it was raised. In particular – this is a common mistake among representatives – don’t underestimate the importance of the non-financial terms of the settlement. It is easy to sit back with a sigh of relief once a sum of money has been agreed, only to find that you can’t agree on the terms of a reference, for example, or the wording of the confidentiality clause, or the question who is responsible in the event that there is any tax to pay on the settlement.

If you are badly behind in your preparation, try, so far as you are able, not to let the other side get wind of the fact. If they know that you’re now hopelessly ill-prepared for the hearing, it follows that it will be a disaster for you if the negotiations break down. You might as well admit in a game of poker that you’ve got a very weak hand.

A good reference from your current or former employer can be extremely important if you are looking for a new job. In some circumstances the hope of a good reference that will allow you to go further will be a substantial part of the reason for doing a particular job at a particular time.

How can I find out if my employer is giving me a bad reference?

If you are offered a job ‘subject to receipt of satisfactory references’ and the offer is subsequently withdrawn, you can make a shrewd guess that an unsatisfactory reference has been provided.

Any temptation to try ‘mystery shopping’ by getting a friend to request a reference for you is best resisted. (Although tribunals often let snooping by employers pass without comment, there is something of a double standard in operation: they are likely to throw up their hands in horror if an employee uses subterfuge or deception to collect evidence.) A better method is to ask the recipient of the reference for a copy of it. An employer with a rudimentary sense of fairness may feel that if they’ve withdrawn a job offer to you because of a poor reference, you ought at least to be allowed to know what has been said.

If simply asking doesn’t work, you can make a subject access request to the recipient of the reference under the Data Protection Act. (Curiously, the organisation that provided the reference will not be required to disclose it because of a specific exception in the DPA.) Straightforward guidance on how make a subject access request is available from the Information Commissioner’s Office.

What can I do about a bad reference?

There are various possibilities, though their availability will depend on the circumstances:

breach of contract

If you were still employed by the employer who has given you a bad reference at the time they gave it, then if the reference is unfair or misleading you can try arguing that giving it amounted to a breach of your contract of employment. There almost certainly won’t be an express term in your contract about references (though if on recruitment your negotiating position is strong enough to allow you to rewrite your contract, it wouldn’t be a bad thing to include one), so you will have to fall back on the implied term of ‘trust and confidence’ term: see TSB Bank plc v Harris [2000] IRLR 157.

If your employment has ended by the time the reference is given, you won’t be able to rely on the trust and confidence term. In the unlikely event that you have managed to get an express term about references inserted into your contract of employment, you may be able to rely on that, provided the term makes it clear that this is a contractual obligation on your employer that survives the end of the employment relationship.

The only other way you might have a contractual claim is if your employment has terminated or a claim arising out of your employment was settled on agreed terms, including terms as to the reference that will be given. If that is the case, then if you believe that your former employer has acted in breach of the agreement, you can sue for damages in the County Court.

Negligence

In Spring v Guardian Assurance [1994] ICR 596, the House of Lords confirmed that an employer or former employer owes a duty of care to the subject of a reference. If you can show that your former employer negligently included false or misleading information about you in your reference and you suffered loss as a result, you can sue in the County Court.

Victimisation

If you can show that the reason for the unfavourable reference is that you had previously brought a discrimination claim against your former employer, then the bad reference is an act of discrimination by way of victimisation (see glossary).

Detriment in employment

If you were still employed at the time the reference was given, and you can show that the reason for the bad reference was a protected disclosure one of the things mentioned at sections 43M to 47E of the Employment Rights Act 1996 (things like whistleblowing, and exercising various statutory rights such as the right to time off for jury service, or the right to request flexible working), then you can ask an employment tribunal to award you compensation for an unlawful detriment in employment.

Defamation

If your former employer maliciously gives out false information about you, you could in theory have a defamation claim. Proving malice is likely to be difficult, and in most cases where you might have a chance of showing malice, you will probably be able to show negligence more easily. A defamation claim in this context will rarely be a good idea.

A version of the glossary that appears in the book has now been added to the resources page of this blog.

If you don’t find the word you are looking for in the glossary, please leave us a comment and we will consider adding a new definition.

It is common in litigation for both sides to stop listening to each other.

This is only natural. Litigation is civilised argument. And we all, when arguing, want to get our points in rather than listen to the other person.

Like many natural instincts, however, this is best suppressed during litigation.

The reason for this is simple. You are more likely to win if you thoroughly understand what the other side is saying. Only by getting a clear idea of what their case is can you identify the weaknesses to attack – and the dangerous points you need to deal with.

Make an effort, therefore, to really listen to what they are saying and try to understand it.

Witness statement should not be put in the bundle of documents.

There is a theoretical justification for this, but the main reason is convenience.¹

Witnesses will often be referred to documents in the bundle and when making submissions about witness evidence you will often move from the statement to the documents it talks about.

If the documents and statements are in the same bundle this involves a lot of flipping back and forth. Much easier to be able to keep the statement open in front of you while thumbing through the documents.

1. The theoretical justification is that witness statements are a form of examination in chief, not documentary evidence.