If you are represented in tribunal, you will often need to communicate with your representative. A lot of the time this can be done by discreet whisper. But this is impossible when your representative is in the middle of cross-examination or submissions. Then the usual method is passing them a note.

Notes from your client during the hearing can be very helpful – but too many can feel like sabotage. So it is worth some thought. Advisers can help themselves by discussing this issue before the hearing.

The tension is between providing useful information, and distracting your representative. They are doing something difficult and complex that requires their full attention. If you interrupt a lot you will break their train of thought, and pile on the stress. The result will be to make them less effective. On the other hand, you may have information or insight that will make all the difference.

The key is to know when to intervene and how.

When

Bear in mind what you representative already knows. Imagine that you have a wages case, and you say that your employer, Mr Smith, promised you a 5% raise from January 2008. If Mr Smith gives evidence that such a conversation never happened, there is no point in passing a note saying “He’s lying”. Your representative knows that he is, and will be busy trying to prove it.

On the other hand, Mr Smith may say something like “I wouldn’t have discussed that sort of thing. I left that all to Ms Jones, the store manager”. You may know that Ms Jones was on her honeymoon during January, while your representative does not. In that case a note letting him know will give him some valuable ammunition.

It is rarely sensible to try to give general advice about how to do something. For example, you may think that it would be better if your representative dealt with matters in a different order than he is doing. But it will be quite impossible for you to explain why and for your representative to change course during his submissions. Trying to do so will just distract him.

Bear in mind that you only have partial knowledge of what your representative is thinking. If he does not seem to be addressing a point, it is possible that he’s unaware of it, or has forgotten it. But it’s also possible that he’s spotted a problem with the point that you haven’t, or noticed that a tribunal member was reacting badly to it; or even that he thinks it’s such a good point that he’s postponing it to the end of his submissions or cross-examination where it will have most impact.

Try to take some account of how important a point is. What you’re trying to achieve by intervening is to make your adviser’s cross-examination or submissions more effective. Will the benefit be worth the cost in terms of distraction? Can your point wait until the next break?

How

Write short notes. This is important for two reasons. First, your representative will find it easier to understand and use a short note, rather than a long one. Secondly, you want to finish your note before he moves on. Even the best point will be less telling if your representative has backtrack to a point he left five minutes ago.

Write legibly. This is a good moment for large round primary schoolteacher writing – even if in fact you are a doctor.

Don’t shout. In other words – DON’T WRITE IN CAPITALS. It is surprising how much more distracting and stressful it is to receive a note written in capitals, because it does feel as if you are being shouted at.

Be prepared. Bring a pack of post-its or small pieces of paper so that you have something to write on that can be easily passed across – a lot of noisy ripping of pages won’t assist your representative’s concentration either.

Another way of dealing with this sort of issue is to agree that, at the end of cross-examination or submissions, your representative will check with you whether there is anything else that need to be covered. This allows you to deal with issues in a more organised way. If you do this, it is sensible to keep a running note of issues that you might need to raise. But be brief: while the tribunal will be happy to let you have quick whisper, they will not normally allow a prolonged conversation.

Finally: don’t take it personally if your adviser reacts quite shortly to your interventions. Under the pressure of a hearing, there often just isn’t time for the standards of courtesy you’d expect normally, and communication is likely to be reduced to the bare essentials. It doesn’t mean your adviser is irritated: it just means they’re in a situation where they have to grab the bits of information they need from you and then shut you up.

As you can see, the site has undergone a redesign.

In addition to a new ‘look’, the structure of the site has been tweaked. Notable features include:

• Search: you can now search through posts.
• Archives / Index: you can now view posts by date and subject.
• Comments: You have always been able to comment on posts, but now it is a little easier and we hope you will make more use of it.

A few more tweaks, fixes and additions will be made over the next week or so.

If you have any feedback on the design or find something that doesn’t seem to work, please comment on this post, or drop me an email: michael@etclaims.co.uk.

A note on browsers: there are a couple of known problems with Internet Explorer 6. It hasn’t been updated since 2004 and doesn’t implement current web standards.

If you are using IE6 you should still be able to read and operate the site, but some things will look odd. We recommend that, if possible, you upgrade to a current web browser. Internet Explorer 7 will work fine. So will Firefox, Google Chrome or Safari.

If you’re claiming compensation for injury to feelings in a discrimination case, you’ll need to read the judgment of the Court of Appeal in Vento for guidance on what kind of sum you can sensibly claim. But bear in mind that Vento was decided in 2002, so don’t forget to adjust for the effect of inflation. The Bank of England provides a helpful inflation calculator.

“Subject to” is one of those bits of technical language that can easily cause misunderstandings. It comes up frequently in legislation and often leads to mistakes.

A rule that is described as subject to something else, is subordinate to that thing. So, if Rule A is subject to Rule B, Rule A is subordinate to Rule B.

In other words, it will take effect, only so far as Rule B does not apply.

This is much easier to see in practice. For example, s98A(1) Employment Rights Act 1996 reads:

98A(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if—-
(a) one of the procedures set out in Part 1 of Schedule 2 to the Employment Act 2002 (dismissal and disciplinary procedures) applies in relation to the dismissal,
(b) the procedure has not been completed, and
(c) the non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with its requirements.

What this means is that, if one of the statutory dismissal procedures should have been followed, but wasn’t completed and it is the employer’s fault, the employee has been automatically unfairly dismissed.

s98A(2) goes on:

s98A(2) Subject to subsection (1), failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarded for the purposes of section 98(4)(a) as by itself making the employer’s action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure.

This creates a statutory defence. If an employer followed an unfair procedure, but can show that he would have dismissed anyway, the employee has not been unfairly dismissed.

However, subjection (2), is subject to subsection (1). So it cannot override the rule about automatic unfair dismissal.

So, there is a statutory defence if an employer runs an unfair procedure, but dismissal would have occurred anyway – unless there is a breach of that statutory dismissal procedure.

This is case about a notice to appeal that was rejected on the sift. The appellant then applied for an oral hearing, where the appeal was again rejected.

The facts and issues in this case are of limited general interest, but the judgment is significant because it sets out how the EAT Judges see the application to appeal process.

The EAT sets out the appeal process in detail, but briefly:

An appellant has a right of appeal to the EAT. Unlike the Court of Appeal, it is not necessary to apply for permission to appeal. If a properly constituted appeal is received within the 42 days time limit it is then put through “the sift”. This means that a Judge considers the papers and decides whether the appeal contains reasonable ground for bringing the appeal. If he decides it does, it will be listed for a full hearing. If not it will be notified that their appeal contains no arguable point.

At that point the litigant has three options: they may accept that decision by doing nothing; they may put in a new notice of appeal, or they may apply for an oral hearing. These oral hearings are often called 3(10) hearings, by reference to the relevant part of the EAT rules.

This judgment makes a number of points:

• An oral hearing is a fresh consideration of the appeal. It is not an appeal from the original decision on paper. This means in practice, it is fruitless to criticise the approach take by the first judge. The point is to show that the appeal has merit in and of itself.
• The choice between serving a new notice of appeal and requesting an oral hearing is not mutually exclusive. You may put in a new notice and have that considered. If it is rejected, you may then apply for an oral hearing.
• You cannot, however, submit a third notice of appeal if the second is rejected.
• Where a new notice of appeal is lodged it will normally be considered by the same judge who ruled on the initial appeal.
• Where there is an oral hearing it will normally be heard by a different judge.
• The 42 days time limit is a long and generous one. This is something that seems self-evident to Judges, but not necessarily to litigants. This is because Judges are aware of other similar time limits, which are much shorter.

Judge McMullen also indulges in a brief rant against the use of latin. He notes that:

Lord Woolf directed lawyers and judges to avoid Latin. … Latin should not be used in court unless English is deficient, because it creates distance and mystery to non-lawyers.

This is sound advice (especially if you are appearing before Judge McMullen). This case is a good example of the potential pitfalls, since the EAT found that the appellant had a. chosen the wrong Latin maxim to express his complaint and b. spelt it wrong. These problems are much easier to avoid if you stick to English.

Haritaki v South England Development Agency

A lot of people bring friends and family to the tribunal to support them.

This is an excellent idea. Tribunals are stressful, difficult and not the the sort of thing you should do alone unless you have to. Just knowing that there is someone there to give some emotional support can make things much easier.

Tribunals almost always have a row of chairs behind the parties for people to sit on. Most hearings are public. Even if yours is not, the tribunal is unlikely to object to people you know attending if you want them to.

The respondent will often have quite a few people with them too. The convention is that each side’s supporters sit directly behind the party they are connected with. This saves embarrassment on all sides and allows everyone to whisper about how things are going.

The advice about not making faces applies to observers as well as participants. Overt expressions of support will go down badly with the tribunal. In particular, hand gestures (of any sort) should be refrained from.

You know your friends and family best, but it might be worth reminding them of this before you go in.

This is just a bit of useful psychology. We all tend to bridle slightly when told that we have no choice. So saying to the tribunal:

• You must postpone this hearing.
• You have no choice, but to order these documents be disclosed
• It is impossible not to make a finding of unfair dismissal

is likely to put their back up to no good purpose. Human nature means that their first thought may well be “Oh I can’t, can’t I?”

It is possible to go too far the other way. It is no good submitting that, just possibly, the tribunal might feel that the hearing could usefully be postponed, but obviously it’s up to them. This does not carry conviction.

The way round this is just to say what you want simply. This is one of the rare occasions when the passive tense is useful.

• The hearing should be postponed.
• These documents should be disclosed
• Mr Jones has been unfairly dismissed

This tells the tribunal what you want, with conviction, without suggesting they have no choice.

Occasionally, you may end up in a situation where you really do have to tell a tribunal that something is impossible. For example, if the respondent wants to make a counter-claim, but you have not raised a breach of contract claim, they are not allowed to do so by the rules. The tribunal really does not have a choice.

Obviously, in that situation you must tell the tribunal so. But, again, it is sensible to do so tactfully. For example, saying “the rules do not permit counterclaims, unless the claimant has raised a contractual dispute” is better than saying “you cannot hear a counterclaim in this case”.

Litigants and new lawyers are often troubled by the vast number of different situations that arise in the process of litigation.

It is helpful to remember that, really, there are only a handful of different situations, just an infinite number of slight variations.

One of the most common is asking the tribunal to do or order something. This might be ordering a document be disclosed; a question answered; a hearing postponed or a witness ordered to attend. But all these situations follow a common pattern. What follows is a standard template for applying for almost anything.

Opening formalities

Start with the obvious. Write the tribunal’s address and the date, just as you would in any letter.

You will also need to include the case number and, if you work for an organisation, any internal reference of yours.

Then open with a salutation. “Dear Sir or Madam” is standard.

It is common to then title the document. This should contain the party names; the nature of the application and, if the application is urgent, the word urgent. For example:

URGENT: Smith v Jones – application to postpone

Do not say the application is urgent unless it is. Don’t start off on the wrong foot by fibbing.

Guidance for dealing with the application

In nine cases out of ten, this is a standard piece of rubric:

I would be grateful if you would put the following application before a Judge.

If there is something unusual about the way in which the application should be dealt with, this is the place to mention it. For example, if a particular Judge is dealing with the case, you should ask the application to go before him. Similarly, if you are putting the application in writing, but expect it to be dealt with at an upcoming hearing, it is sensible to say so.

Bear in mind, however, that you cannot control how the tribunal deals with your application. That is up to them. You can only make a request or suggestion.

If you have said your application is urgent this is the place to explain why.

What you are asking for

At this point, say what it is that you are asking the tribunal to do.

The tribunal’s authority

Then indicate why the tribunal is able to do what you ask.

This is often unnecessary. Orders for discovery, or to postpone, are so routine that no issue is likely to arise about the tribunal’s powers. But if your application is more unusual, it is sensible to make it clear where the tribunal’s power comes from.

Why the tribunal should do it

This is likely to be the longest section. Write down all the reasons that the tribunal should do what you ask.

This section will often also include a discussion of what legal test the tribunal should use to decide the application. For example, if you are making an application to amend the claim. You might set out the guidance in Selkent about when such applications should be granted. Then explain why you meet that test.

Closing formalities

The tribunal rules require that all applications explain how the order will “assist the tribunal or chairman in dealing with the proceedings efficiently and fairly”. This should have been covered in your explanation for why the tribunal should do what you want. But it is conventional to state it explicity by writing something like:

For the reasons set out above, [this order] will assist the tribunal in dealing with the case efficiently and fairly.

The rules also require that you set out the otherside’s right to respond to the application:

This letter is copied to the respondent. The Respondent should not that if it objects to the application, it must write to the tribunal within seven days of receiving this letter, or before the date of the hearing (whichever date is the earlier) explaining the reasons for its objection , and should copy that letter to me. Rule 11 of the Procedural Rules has been complied with in relation to this application.

Note that there is an exception to this rule. If you are applying for a witness order, you do not have to inform the other side (although you can if you want).

Finally, sign the letter and post / fax / email it to the tribunal (and the respondent).

Oral applications

Applications at a hearing follow a very similar pattern. Say what you want and why the tribunal should agree.

One of the problems you can face early in your career is that tribunals don’t take account of your inexperience. It can feel as if you’re expected to reach the standard expected of an experienced lawyer from the first moment you start representing clients.

To some extent this is just not a problem that should be solved. Tribunals expect a certain basic standard of all representatives. Inexperienced shouldn’t mean incompetent.

But beginners are inevitably less skilled than experienced people. It is not unreasonably to expect the tribunal to cut you a little slack in your first few appearances.

Generally, tribunals notice when you are a beginner. But if they don’t, should you tell them?

There is no absolute answer to this. It will depend on you, your client, your opponent, the tribunal and the situation. Here are some pros and cons:

Pros

• The tribunal may cut you some slack. This can take a number of forms, but include giving you a bit more latitude in cross-examination, being more willing to listen during your submissions, doing more work to translate what you say into the correct legal language and so on.
• The tribunal may also simply be nicer to you. This sounds minor, but actually can be quite important. Hearings, particularly your first couple, are often extremely stressful. It’s easy to be thrown right off your stride by even a mild reproof from the Judge.

Cons

• You may annoy the tribunal by appearing to ask for special treatment.
• Your submissions may carry less weight.
• You may undermine your client’s confidence in you.
• The Respondent may see it as a sign of weakness.

If you do decide to come clean about your inexperience, do so shortly and directly. Don’t apologise or be sheepish. Just say that this is your first (or second, or whatever) case and you hope the tribunal will bear with you. And do it right at the beginning: if you bring it up only when the tribunal barks at you, it will sound like an excuse.

Witnesses in the employment tribunal are usually asked to read their statements aloud. Often the statement will refer to documents, for example:

After that, I did not feel I could work for the company any longer, so I wrote my letter of resignation dated 16 September 2008 [235].

One of the small things you can do to help the hearing run smoothly is to let your witnesses know in advance how you’re going to handle references to documents. Do you want them to read out the page numbers? Do you want them to pause so that you can ask the tribunal to read the document? Do you want them just to plough on, and only pause if you interrupt and ask them to?

There’s no single right way of doing this. Sometimes by the time your witness gives her evidence, the tribunal will already have seen all the documents she refers to – so she can just read her statement, ignoring the page references. Sometimes you will want to get her to pause at each reference to allow the tribunal to read the document referred to. Sometimes you will want to pick some documents for the tribunal to read, but pass over others. Of course, you do need to have made a decision about this in advance; and if your decision is to pause only for the documents the tribunal has not yet seen , then you need to know which these are and have them marked on your copy of your witness’s statement.

The main thing is to let the witness know before she starts giving her evidence how you plan to handle this: otherwise she may be left hesitating at page references, looking at you anxiously and wondering if you’ve decided the tribunal doesn’t need to read this document, or just forgotten to ask her to pause. It won’t matter hugely, but it is the kind of thing that can annoy the tribunal and/or make a witness feel a bit unsettled – both of which are best avoided.