When in doubt, it is best not to make jokes during a tribunal hearing.

It is not that nobody does. You’ll very rarely hear an actual joke, but many Judges will indulge in a dry remark from time to time. And representatives will often do the same.

No matter how funny you are though, it will almost never have a positive impact on your case. And there is always the possibility that it will cause a problem – by offending someone, or suggesting that you aren’t taking the hearing seriously.

Litigants are also more at risk of this than representatives. Nobody expects a professional representative to approach every case with grim seriousness. But a tribunal might interpret a light remark by a claimant negatively – even if it was just the result of nerves or some other perfectly innocent impulse.

So, it is sensible to err on the side of caution. At least until you have had a chance to gauge the audience and to be sure you will not be misunderstood.

Jokes are even riskier in correspondence. From time to time you may feel the urge to poke fun at something the other side have said or a particularly ridiculous assertion they have made. Resist it. These things never look nearly as funny three months later when the tribunal reads them.

Finally, if your Judge does indulge himself in a humorous remark, it is strongly encouraged to crack a smile.

Tamara Lewis, notable for having written the excellent Employment Law: an adviser’s handbook, has written the Claimant’s Companion.

This is a pamphlet intended to help people have some professional assistance with their claim, but want a guide to what to expect during the tribunal process and how to make the best use of their advisor. It take you through the tribunal process, offering good, common-sense advice at every stage.

Claimant’s Companion is downloadable free from the Central London Law Centre’s website.

Although it is aimed at litigants who have advice, it is worth reading even if you are acting on your own. Almost all of the advice will still apply – although you will have to look further for details of the law.

And advisors may well want to print out a few copies to share with their clients!

Claimant’s Companion

What can you do if a job offer is withdrawn after you’ve accepted and resigned from your old job? The question is a simple one, but the answer turns out to surprisingly difficult.

The first practical step to take if this happens to you is to approach your existing employer about whether they will accept a retraction of your resignation. This is less likely to work, of course, if you have taken the opportunity of your resignation letter to tell some home truths.

If that fails, do you have any rights against the new employer that has let you down? This divides into two parts:

1. Do you have any contractual rights at all?

This will depend on whether you have entered into a binding contract with the new employer. If the offer was made conditional on something – receipt of satisfactory references, for instance, or a satisfactory medical examination – then you almost certainly don’t have a binding contract. But if you had agreed the main terms of employment – salary, start date, working hours, location etc. – and no-one had said anything to suggest that the offer might yet be withdrawn, then your new employer is probably in breach of contract. In particular, it doesn’t matter that you don’t yet have a written contract signed by both sides: there is nothing to say that a contract of employment has to be in writing.

2. How much will you get in damages?

You might think you’d be entitled to substantial damages. After all, if your employer hadn’t withdrawn the offer in breach of contract, you’d be earning in a new job by now, and probably expecting to stay in it for some time. As it is, you’re unemployed and earning nothing. That’s potentially quite a lot of money you’ll have lost before you find another job.

Unfortunately, when employees have tried to argue that they should be compensated for what they would have earned if their contracts had not been unlawfully terminated, the courts have always held that they are limited to what they would have received if their contracts had been lawfully terminated. See Lavarack v Woods; Janciuk v Winerite Ltd. Lawful termination means termination on whatever the contractual notice period is, so damages will be limited to pay during the notice period. Unless you’re very senior, your notice period during the first year of your contract will probably be short – quite possibly as little as a week, and probably not more than a month at best. So unless you find another job quickly, your damages won’t compensate you for much of your loss.

However, what doesn’t seem to have been tried in this context (so far as the authors of this blog are aware) is a claim for what is called ‘reliance loss’ – that is, a claim for what you have lost by reason of your expectation that the new employer would perform its part of the contract, rather than for what you have lost because it didn’t. Accepting that you can’t get damages to reflect your earnings in the new job for longer than the contractual notice period, why shouldn’t you get damages to reflect the loss of your old job? And why should those damages be limited by an artificial assumption about when your old employer might have lawfully dismissed you if you hadn’t resigned?

If you want to run an argument along these lines, you probably won’t find any case-law in the employment context that helps you, so you will need to look at cases on reliance loss in a contract textbook.

A lot of litigants present character references to the tribunal. These tend to be short statements or letters written by people who know the litigant saying, in effect: ‘Mr Smith is a good and honest man, who certainly would / wouldn’t have….’

A common variation is statements about the other side saying, more or less: ‘Ms Jones is a nasty and dishonest person, who certainly would / wouldn’t have….’

This makes a certain amount of sense. An important part of the tribunal’s role is to decide who to believe. So the character of the parties, good or bad, is important.

But these statements are rarely, if ever, of any use.

The reason for this is simple. Even the most despicable and dishonest man can arrange for half a dozen people to write a few lines saying what a good guy they are. And even a Saint will have a few enemies. The tribunal, who has never heard of these people before, will have no means of assessing their truthfulness or their judgement. So the statements don’t make anyone’s character any clearer.

This problem might be addressed by calling witnesses to give evidence. Then the tribunal would have the opportunity to examine their truthfulness and judgement. But this adds little to what the tribunal will already consider. So far as it is possible to judge such things from witnesses they will do so with the litigant himself. There is no need to abandon this in favour of judging his character witnesses, then using the conclusion on them to judge the litigant.

Apart from anything else, it would quickly become absurd once people began calling character witnesses in support of their character witnesses.

For these reasons, character evidence should not be presented in most cases. At best it has no impact at all and it may cause harm, if only by annoying or boring the tribunal.

The exception is where witnesses can give specific evidence about previous events that follow a similar pattern to the claimant’s case. For example, in a racial harassment case, evidence that the supervisor, Mr Smith, behaved abusively to another black worker is potentially relevant. Evidence that Mr Smith is generally dishonest almost certainly isn’t.

Even when dealing with similar previous events, you should be cautious. Be sure that the evidence is really relevant and reasonably compelling. Otherwise, you risk clouding your case with arguments about other matters, that actually have little to do with it.

If both parties are going to give the tribunal a skeleton argument or written submissions, the usual thing is to exchange them simultaneously. The idea is that neither side gets to write their document having the unfair advantage of a preview of their opponent’s. This is broadly sensible and fair, but not something to get desperately worked up about: after all, you’re probably going to get the chance to say your piece orally anyway, and if not, you can always send in a supplementary document if you think there’s material in the other side’s that you haven’t dealt with and you must answer.

One exception to the usual rule is if there is an appeal to the EAT and a cross-appeal (see glossary), and a preliminary hearing at which the EAT proposes to decide whether either the appeal or the cross-appeal should have a full hearing. In that situation, strictly speaking you’re only there (whether you’re the original appellant, or the respondent to the appeal who is also cross-appealing) to argue that your own appeal merits a full hearing. So don’t be astonished if your opponent refuses to exchange skeletons with you: they may say you’re not entitled to it, because you’re not there to argue about their appeal at all, only your own.

This is probably technically right, if a bit arsey, so there’s not much point jumping up and down about it if is the line your opponent insists on taking. But the more sensible and co-operative course is to exchange skeletons so that if the judge wants to ask you about your opponent’s appeal (or vice versa), you have some idea what you’re talking about.

Sedley being The Rt. Hon. Lord Justice Sedley of the Court of Appeal.

Interestingly, Google tracked them down on the website of the New South Wales Supreme Court. It is comforting to find that some things are universal.

First Law: Documents may be assembled in any order, provided it is not chronological, numerical or alphabetical.

Second Law: Documents shall in no circumstances be paginated continuously.

Third Law: No two copies of any bundle shall have the same pagination.

Fourth Law: Every document shall carry at least three numbers in different places.

Fifth Law: Any important documents shall be omitted.

Sixth Law: At least 10 percent of the documents shall appear more than once in the bundle.

Seventh Law: As many photocopies as practicable shall be illegible, truncated or cropped.

Eighth Law:

1. At least 80 percent of the documents shall be irrelevant.
2. Counsel shall refer in court to no more than 10 percent of the documents, but these may include as many irrelevant ones as counsel or solicitor deems appropriate.

Ninth Law: Only one side of any double-sided document shall be reproduced.

Tenth Law: Transcriptions of manuscript documents shall bear as little relation as reasonably practicable to the original.

Eleventh Law: Documents shall be held together, in the absolute discretion of the solicitor assembling them, by:

1. a steel pin sharp enough to injure the reader,
2. a staple too short to penetrate the full thickness of the bundle.
3. tape binding so stitched that the bundle cannot be fully opened, or,
4. a ring or arch-binder, so damaged that the two arcs do not meet.

Or, in English, the time you spend on an issue in tribunal should be proportional to the importance of the issue and its complexity.

The amount of time you spend on something will send a message to the tribunal. The more time you spend on a point the more important you suggest that it is.

So, all else being equal, you should spend the most time on your important points.

However, all else is not equal and you will have to take account of how complex your points are. A difficult issue takes more time to deal with. And if what you have to say is short and simple it does no good (and normally does harm) to keep talking once you’ve made the point.

It is sometimes worth flagging up exceptions to the general rule. For example you might say “Sir, my next point is really the key to this case, but it’s a simple point and I will be brief.” Similarly, you might say “Madam, the contractual point is rather difficult and I’m afraid I’m going to have to spend rather a lot of time on it.”

Update: A reader points out that, arguably, the equation should be importance multiplied by difficulty; rather than importance divided by difficulty. This is correct – unless difficulty is expressed as a number greater than zero but equal or less than 1. This may be a post event rationalisation, but it preserves the original formula.

It is important to know thyself.

But it is just as useful to know others.

One part of this is listening to what the other side is saying, so that you can engage sensibly. After all, you wouldn’t close your eyes in a sword-fight.

But another part is that your opponents will often have good ideas about tactics that you haven’t thought of or haven’t encountered before. When you spot these, remember them and use them in the future.

Similarly, if you opponent blunders, note what they have done and resolve not to do it yourself.

Reading Miyamoto Musashi‘s The Book of Five Rings – the classic Japanese treatise on strategy from which this post’s title, and martial metaphors, are taken is optional.

Simon Myerson Q.C., who writes at Pupillage and how to get it, has been talking about self-criticism.

Although he’s speaking mostly in the context of interviews for pupillage (the final stage of a barrister’s training), his advice is good and much more widely applicable.

This is an issue I used to force under my own pupils’ noses. If you lose a case, the temptation is to blame your client, your opponent, the witnesses and the Judge. It may all be true. But 99.9% of the time there is something which you could have done to make a difference. People who are going to be good barristers cannot afford to be frightened of the process of self-criticism which identifies what that is.

This is a very good habit to get into. You’re not perfect, and you’re never going to be – because no-one is – but the way to improve is to identify some of your imperfections and do your best to fix them. This will not make you perfect, but it will make you better.

As Simon acknowledges, this is not a comfortable process. The best way of dealing with that is to make it a routine. At the end of every case, just spend five minutes thinking about whether you made any mistakes and whether you should do anything differently next time.

How you do this is a very personal thing. You might want to keep a diary, or talk about it with someone you trust, or just make a mental note on the train home. You might even start a blog.

There are a few warnings about this.

First, remember that you can only do one thing at a time. Trying to analyse your performance during a hearing is rarely a good idea. You will be far too close to it to draw sensible conclusions, much less implement them. You will just end up making yourself more stressed.

This is subtly different to seeing how a case is going and adjusting accordingly. Broadly, if you are planning what to do next, you’re okay. If you are beating yourself up about what you have already done, you need to get your head back in the game.

Secondly, remember the making mistakes or being less than perfect is not the same as professional negligence. Negligence – in very broad terms – is making a serious and stupid mistake, which means you have failed in your duty to your client. There is sometimes a tendency, both in clients and lawyers, to regard all imperfections as negligent. This is just not the case.

Of course, this post is aimed at people who are, or who want to be, professional representatives, and can be assumed to want to get as good at the job as it is in them to be. If you are a litigant in person you want to win your case. If you catch yourself wanting to become a better litigant long-term, find another hobby – fast.

It is a truth generally acknowledged that Her Majesty’s Revenue and Customs are evil. But nobody is totally evil. And even the Revenue has its good points.

One of these is that they provide some useful online help for calculating certain statutory payments. If you need to calculate:

• Statutory Adoption Pay
• Statutory Maternity Pay
• Statutory Paternity Pay
• Statutory Sick Pay

You can enter the relevant information on the Revenue website and it will do the hard sums for you.

Statutory payments calculators