It seems that quite a few of those who find this site are looking for help with deciding what kind of questions to ask their former employer in the course of the hearing. In other words, they want to know how to go about cross-examination.

We have written quite a lot on this subject in our book.

We have also written a number of posts about various aspects of cross-examination on this blog – you can find these by using the index or the search box.

The questions you will need to ask will depend very heavily on what you are trying to prove. Probably the best thing you can do to get a feel for how this works is to sit in on some hearings at an employment tribunal. If you can, visit one of the larger employment tribunals (e.g. Central London, Stratford, Croydon, Watford, Ashford, Cardiff, Bristol, Birmingham, Manchester, Leeds, Newcastle, Edinburgh, Glasgow) and aim to listen to bits of several short hearings, preferably in cases in which at least one side is represented by lawyers. If you get to the tribunal at 9 o’clock or soon after, the clerks may be willing to point you in the direction of a suitable case if you explain what you want.

Employment tribunal hearings are normally held in public: you can come and go as you please, and there should be no need to identify yourself or explain yourself in any way if you don’t want to. If you’re asked, it should be sufficient just to say that you’re a member of the public.

If you sit at the back of one hearing, and you don’t find you understand a word of what’s going on because it’s day 9 of 17, don’t feel you have to stay until there’s a break: you can slip out at any time and go quietly into the back of another hearing room to see if there’s anything more enlightening going on there.

A chronology (see Writing a chronology) is useful in two ways: the document itself is useful, because it provides an at-a-glance summary of the key dates and events. And the process of writing it is even more useful, because it helps fix the key dates and events in your mind.

What it is not for, however, is putting your case. The tribunal will want a chronology agreed by both sides, and will expect it to be drafted in neutral terms. If you put disputed material in your chronology, you can’t expect the other side to agree it.

If you need to put disputed allegations in to make sense of the story, put them in in a way that makes it clear that they are disputed – eg:

25.9.08 alleged racial abuse by P

Sometimes when you’ve drafted a complete chronology, you’ll find that it goes on for pages and is not much more digestible than the several lever-arch files of documents you’ve taken it from. Don’t throw it away – you’ll definitely need it – but you might want to create another version on a single page that just lists the 10 or 15 most important dates. If you can find the time, committing the short version to memory before the hearing begins is very worthwhile.

If you serve a questionnaire on the respondent, or ask them for further details of their response to your claim, send your questions by email if you possibly can. That way, you will make it easier for them to answer your questions in a document that incorporates both questions and answers.

Suppose your questionnaire goes:

6. Please answer the following questions:
(a) Do you accept that I am a disabled person?
(b) Do you agree that I have asked you on numerous occasions to consider adjusting my working hours so that I do not have to travel at busy times?
(c) Do you agree that the nature of my work is such that it is rarely time-critical over short periods?
(d)…
…

If you have just sent a hard copy, their response may well simply go:

(a) No.
(b) Yes.
(c) Not entirely. It is often necessary to have your input on queries that are raised by sales staff within an hour or two.
(d)…
…

This will be extraordinarily annoying to use, because anyone reading it will have to keep flicking back to the questions to find out what the answers mean. It is much better for everyone if questions and answers are interleaved, thus:

(a) Do you accept that I am a disabled person?
Answer: No.
(b) Do you agree that I have asked you on numerous occasions to consider adjusting my working hours so that I do not have to travel at busy times?
Answer: Yes.
(c) Do you agree that the nature of my work is such that it is rarely time-critical over short periods?
Answer: Not entirely. It is often necessary to have your input on queries that are raised by sales staff within an hour or two.

If you email your questions, it is more likely that your respondent will do the sensible thing in replying – because you’ll have saved them the trouble of re-typing all your questions.

There is now a useful discussion of privilege, including waiver (see previous post), by the President of the EAT in Howes v Hinckley Bosworth BC

Enforcement is often seen as a complex and legalistic process. It moves from the tribunal to the civil courts, and has all sorts of hurdles to overcome. If somebody just refuses to pay an award, it can be difficult and expensive to force them into it. Normally it is equally annoying for the erring respondent, who has to put up with court orders, bailiffs and applications to make them bankrupt, but some respondents seem determined to play brinkmanship.

Having said that, the first stage of enforcing an award is relatively simple and is often effective on its own. So do not be immediately discouraged.

Step 0

The first thing to do if an award is not paid is to contact the respondent or their representative and ask them to pay. There is a tendency, by the end of litigation, to have reached such a sour view of the ex-employer that you interpret non-payment in the worst possible light. But, quite often, there is nothing very sinister going on. Inefficiency and incompetence are at least as common as malice. In these cases a firm phone call or letter saying “I’m sure you were just about to pay, weren’t you?” may be enough.

Even when you are sure that the respondent is going to be difficult, it is worth going through this stage. It costs little and may give you the moral high ground later.

The Form

Fill in form N322A.

This is a one page form. You will need to put in details of yourself, the respondent and the tribunal award.

The potentially difficult bit is calculating interest, but you should have received information about this with your judgment.

When you have completed the form, make a photocopy of your judgment and put it with the form.

Court Fees

At the time of writing, the fee for registering a tribunal judgment is £35. This is added to the judgment debt, so you should get it back in the end.

You can check the on the Court Service website. Search for ‘Court Fees’ in the ‘Form Title / Leaflet Title’ search box. The relevant guidance is called ‘County Court Fees – Including fees for family cases’.

If you are on benefits you may not need to pay court fees. The above search should also locate guidance called ‘Court fees do you have to pay them?’. Read this if you are unsure.

The Court

The most complicated part of this process is finding the right county court to send the application to. Awards should be enforced in the county court that covers the area where the respondent is in business. This is not particularly obvious or intuitive. If you send the form to the wrong court, they will send it back.

The easiest way to find out where to send it is to do a postcode search on the Court Service’s Court Finder. This should give you one, or possibly two, relevant courts. It is worth ringing the court up to check that you are sending the form to the right place.

The Result

A couple of weeks after you send the form in you should get documents back from the court, confirming that the judgment has been registered.

At this point you have a County Court Judgment against your respondent.

In many cases, this is enough to convince the employer to pay up. County Court Judgments seem to be real to people in ways that tribunal awards are not. This is, at least to some extent, irrational, but it is a common view. The reason it is not entirely irrational is that CCJs show up on credit tests and have to be declared in various circumstance, while tribunal awards, as a rule, do not.

The other impact is that registering a judgment is a strong declaration of intent that the claimant is not going away quietly.

Further steps

Once you have a CCJ you can access the rest of the civil enforcement system. This is the point at which things do get more complicated and difficult – for both sides.

A good starting point is the Court Service’s leaflet I have a judgment but the defendant hasn’t paid.

Citizen’s Advice has published its latest report on the non-payment of awards by employers. Justice Denied, is an interesting, but depressing, account of the problem.

The report concludes that approximately one in ten tribunal awards is not paid by the respondent. They estimate that, in 2007/08 CABs dealt with about £4.5 million in unpaid judgments. The total UK figure, of course, will be much higher.

Citizen’s Advice also criticises the enforcement process. Since the tribunal has no enforcement powers, awards must be registered in the County Court. Then claimants are presented with a confusing and complex system of bailiffs, charging orders, bankruptcy applications and third-party debt orders. This is plainly unsatisfactory.

Unfortunately the proposed solution – that the government step in to pay all tribunal awards initially, before enforcing against the respondent – has a snowball’s chance in hell of coming into reality.

Justice Denied

Tribunals occasionally direct that the hearing bundle is to be limited to a fixed number of pages.

This is on the whole a good idea. Most bundles contain a lot of documents that don’t need to be there and won’t be referred to during the hearing: see Sedley’s laws of documents. The parties put them in ‘for completeness,’ or because putting them in ‘just in case’ saves making a decision about whether or not they will be needed.

If the tribunal directs that the bundle is to be limited to, say, 300 or 500 pages, the two sides will actually have to think about what they want the tribunal to see. Does the whole of the Employee Handbook really need to go in? Is there any dispute about whether the grievance procedure was properly followed – if not, what’s the grievance procedure doing in the bundle? Does that long email string about when the disciplinary hearing is to take place actually matter?

In the end, a document only needs to be in the bundle if the tribunal needs to read it in order to understand the story properly, or if one side or the other wants to use it in cross-examination. If it doesn’t tick either of those boxes, it’s a waste of paper.

Litigation is about convincing somebody of something.

One way of doing this is to tell the person you are trying to convince what somebody else thinks.

In litigation this works well, provided that ‘somebody else’ is the tribunal. A respondent who is refusing to cough up documents may well be convinced by a tribunal order.

It does not, however, tend to work on the tribunal. Saying, or writing, something like ‘My local CAB says that the case should be postponed’ or ‘I’ve talked to a lawyer and he says my dismissal was unfair’ is unlikely to make much of an impact.

This has two consequences. Firstly, don’t use this sort of technique on the tribunal. It is likely to be a waste of time.

Secondly, when getting advice, it is important to dig a little below the surface. If, instead of saying the case should be postponed, the CAB explains that it should be postponed because of the large mass of documents served, at the last minute, by the respondent, you have something to go to the tribunal with.

Solicitors actually do something very similar, but they say ‘Counsel has advised…’ or ‘We are acting on counsel’s advice…’ This is not a great deal more effective. Tribunals see a lot of barristers and tend to take counsel with a pinch of salt.

One of the difficult things about running a tribunal case for the first time is the uncertainty about what needs to be done before the hearing. The first step – putting in your ET1 – is fairly obvious, but after that it is easy to get overwhelmed.

If the tribunal has made detailed case management orders, this makes things simpler. If you follow them, you should do most of what you need.

Otherwise, it is worth remembering that there are three main things you need to sort out before you reach the tribunal. This is a gross simplification, but it is worth bearing in mind if you are uncertain what to do next.

Documents

When the hearing starts you want to have an agreed bundle of documents, containing all the relevant evidence.

Normally, this means you need to do two things: discovering and bundling.

Discovery is the process of figuring out what documents you have; then asking the respondent for documents they have, and getting a tribunal order if necessary.

Bundling is the process of drawing up an index of the relevant documents (not the same thing as all the documents), putting them in chronological order and paginating them. Paginate is a fancy lawyer’s term for writing page numbers on them. Then you have to agree the bundle with the respondent.

Witness Statements

All of the people who are going to give evidence should have prepared a witness statement and these should be exchanged with the respondent.

Know what you are going to say

Basically, you need to be ready to do two things: cross-examine witnesses and make submissions.

What this will involve will vary from case to case. An experienced advocate, dealing with a simple case, might just jot a few points on a sheet of paper. On the other hand, in a complicated case, or if it will be your first time in a tribunal, you will want to do a lot more.

A good starting point is a list of issues the tribunal will need to decide. Once you have that, you can expand it into a list of things you want to ask each witness about and another list of areas you need to address in submissions.

Detailed lists of questions get a bad press in legal circles. The potential disadvantage is that they may turn you into a robot – asking one question after another in a monotone, paying no attention to what the witness says. But this can be avoided with a little care and attention.

The advantage of detailed lists of questions is that they make sure you do not miss anything and allow you to plan, in detail, the order and approach of your questions. For beginners, this is particularly valuable.

You should also consider written submissions. In complicated cases, these are almost vital. In a simple case, the tribunal will get much less advantage from them. But this does not mean they are not useful. By writing down, in full, what you want to say, you will make sure you have the issues, the evidence and your arguments thoroughly worked out.

Unfortunately, you will normally not be able to complete your written submissions before the hearing starts. This is because you will not know what evidence is going to come out during the hearing. The best approach is to leave gaps in your submissions, where this evidence can be slotted in later.

We note with amusement that at least one organisation has added this site to their list of prohibited websites. In other words, somebody feels that they’d rather not have their employees reading our posts. This makes us feel gratifyingly dangerous and edgy.

Joking aside, this probably isn’t a great idea. If you’re an employer, barring access to this blog is unlikely to be an effective way of preventing your employees from finding out that they can sue you. If it has any effect at all, it’s more likely just to piss them off. They’re probably already quite pissed off if they are looking for information on this subject, so the chances are you’ve just made it more likely – not less – that they will sue you.

Moreover, if you’re going to be sued, it will be less annoying on balance for you – and quite often less expensive – to be sued by someone who knows what they’re doing than by someone who hasn’t a clue. So a better plan would be to buy your employees a copy of our book.