Costs orders are rare in the employment tribunals and the EAT: each side pays its own costs, unless one side or the other has behaved conspicuously badly. (That’s not exactly what the rules say, but it is more-or-less what they mean.) That means that as long as you’re not paying anything for legal representation, the financial risks of suing your employer in the employment tribunal and/or appealing to the EAT are modest.

Employment tribunal cases occasionally get appealed to the Court of Appeal. At this point, the risks change radically: in the Court of Appeal, the normal rule is that the losing side pays the winner’s costs. If your employer is being expensively represented by specialist lawyers, that could represent a risk of several thousand pounds at least.

Until recently, in a case where the claimant was being represented for free (or pro bono as it’s still often called), the risk was one-sided: the claimant faced a risk of paying the respondent’s substantial costs if she lost, but the respondent couldn’t be made to pay the claimant’s costs because the claimant hadn’t incurred any. That could put you at a serious tactical disadvantage.

The good news

This has now changed. Under section 194 of the Legal Services Act 2007, the Court of Appeal (and the other ordinary civil courts – but not the ETs or the EAT, which have their own rules) can now make a ‘costs’ order against the losing party even where the winner has been represented pro bono. The money goes to a legal charity.

The bad news

Unfortunately, instead of giving judges power to do the obvious thing and award the money to the charity that has represented you or arranged for your representation, or to some other suitable charity, a new charity called the Access to Justice Foundation has been set up especially for the purpose of receiving and distributing money generated by these costs orders. It will distribute the money among seven separate of ‘Regional Legal Support Trusts’ (yet to be set up), which will pass the money on, according to criteria (yet to be formulated) to legal advice charities.

It’s clear from the Foundation’s website that a lot of organisations and high-powered individuals have been involved already in the meetings, steering groups, sub-committees, consultations, Press announcement, drafting of constitutions and policy papers etc etc. that this exercise has demanded; and that there is much work yet to do.

There is no possible doubt about the good will of those involved. But it is hard not to think wistfully about the individual wrongs that might be righted the were to devote their time, and their formidable energy and abilities, to pro bono casework instead. It is even more grieving to think of the time that hard-pressed voluntary sector lawyers will in due course have to take away from their casework to study the Foundation’s grant-making criteria and then write applications tailored to those criteria.

Sometimes – if the allegations are important or salacious, or high-profile individuals are involved, or the legal issues are far-reaching – the Press will show an interest in an employment tribunal case. Most hearings are public, so reporters may be present whether you want them there or not.

Should you talk to the Press?

There is no one-size-fits-all answer to this question, but it is a good thing to have thought and made a decision about before it arises rather than making a snap decision when you are telephoned out of the blue or approached in the tribunal waiting room by a reporter.

The first point is that there is certainly no reason why you should answer any Press questions if you don’t want to. If you want to think and/or take advice before you answer them, you can tell them that. But a polite but firm ‘I’m sorry, I don’t want to talk to you about my case’ should end the matter.

The main practical impact of Press interest will be on negotiations. If the respondent is sensitive to publicity, a degree of Press interest may encourage them to make an attractive offer in the hope of getting you to sign a confidentiality agreement. On the other hand, if you say too much to reporters while negotiations are in progress, and there are widespread news stories as a result, you risk making your employer think that they don’t have much more to lose – and that could damage your negotiating position.

If in doubt, it is probably best to say nothing: putting information into the public domain is easy; getting it back is impossible.

Definitions for barrister, solicitor and lawyer have been added to the Glossary page.

It is always worth remembering that the point of cross-examination is to convince the tribunal.

Often people get confused about this. Often they seem to think that the point of cross-examination is to break down the witness and make him accept that he is wrong or lying.

This never happens.

Or to be more accurate, it so rarely happens, that it is not a worthwhile objective. Human nature being what it is, people are reluctant to admit that they are wrong and even more reluctant to admit they have lied. This is especially true when they are in a public, potentially embarrassing situation, such as a tribunal hearing.

In practice therefore, even when a witness is confronted with cast-iron evidence, they are unlikely to radically change their story.

This, however, doesn’t matter very much. Your aim should be to get whatever useful admissions you can and confront the witness with the evidence. If the evidence is strong, whether they accept it is largely irrelevant. The tribunal will see that their answers are inadequate and unconvincing.

Once this has been done trying to make the witness give up and accept your account of events is unlikely to work. It is more likely to waste time and obscure the point you are making.

Always remember that it is what the tribunal thinks that matters.

Two new definitions have been added to the glossary page: ‘protected act,’ and ‘victimisation.’

During a hearing, evidence is presented in a fairly structured way. Each witness gives evidence and is cross-examined. Witnesses tell the story in chronological order and then are cross-examined in roughly the same way.

This is a good system for hearing evidence. The logistical challenges of doing anything else would be considerable. Hearing evidence on an incident by incident basis, with witnesses stepping up and down in rapid succession, then returning when the tribunal moved onto the next part of the case would quickly create chaos.

The disadvantage of the system is that a lot of what witnesses say when giving evidence is not terribly important. Important answers can easily get lost in the crowd. Also, where more than one witness is giving evidence about a subject, the relevant evidence can get spread out and hard to follow.

Submissions, however, are an opportunity to draw the tribunal’s attention to patterns that are not clear while evidence is being given.

There are a number of ways of doing this. Below are two examples.

Collecting a single witness’ answers on a particular issue

It is notable how little Mr Smith could remember on certain key issues.

In cross examination he was asked:

• “Did you speak to HR, before writing to Ms Jones?” He replied, “I don’t know. I might have.”
• “Did you read your company’s guidance on disciplinary procedures before your meeting with Ms Jones?” He replied, “I don’t remember.”
• “Did you talk to anyone about how to run a disciplinary procedure?” He replied, “I think I did, but I can’t say for sure.”
• …

Even taking his evidence at its strongest, it is plain that Mr Smith has no clear recollection of taking any steps to establish his responsibilities in running a disciplinary procedure. His statement at paragraph 5 of his witness statement that “I had not run a disciplinary process before, but I took steps to make sure I understood what I had to do” is simply not credible.

Collecting a number of witnesses’ answers on an issue

It is apparent from the evidence of Gubbin’s managers they were confused about who was responsible for dismissing Ms Jones. Mr Smith, Mr Green, Mr Adams and Ms Watson were all asked who made the final decision.

• Mr Smith said “It was a HR issue, so Mr Adams would have done the final sign-off.”
• Mr Green said “I’m not sure, but I expect Mr Smith would have had the final say. He was her direct manager.”
• Mr Adams said “That would have been Ms Watson. She was the senior manager.”
• Ms Watson said “I was advising, but ultimately it was Mr Adams who made the decision.

The technique is the same in both examples. By extracting important parts of the witnesses’ evidence in relation to a single issue and presenting them together, the point becomes obvious.

Sometimes neither side is satisfied with the employment tribunal’s decision, and both sides want to appeal. A cross-appeal is basically just an appeal by whichever side puts its appeal in second. As long as you meet the relevant deadlines, there’s no need to race: if both sides are going to appeal anyway, it won’t matter in the slightest who starts the ball rolling.

In some situations you could quite sensibly decide not to appeal, even though you’re not completely happy with the result, but look again at that decision once you see that the other side has appealed. You may feel that now you’re going to have to go through an EAT hearing anyway, you might as well throw your appeal in too.

A cross-appeal can be either ‘conditional’ or ‘unconditional.’ If your appeal simply doesn’t arise unless the other side wins its appeal, it is conditional. If your appeal is still relevant even if the other side loses, it is unconditional.

This will be clearer with a couple of examples:

Example 1: conditional cross-appeal

Suppose your original complaint was of constructive dismissal. You say that your employer committed a fundamental breach of contract by reducing your bonus, and then committed a further fundamental breach in the manner in which it handled your grievance. The tribunal finds that the reduction of your bonus was not a breach of your contract, and anyway that you had delayed too long in resigning in response to that breach; but that the manner in which they handled your grievance about the matter was a fundamental breach, and your resignation in response to that therefore amounted to constructive dismissal.

There’s no reason for you to appeal this decision: you’ve won your case. But the situation changes if your employer appeals, saying that there’s an error of law in the tribunal’s conclusion that the grievance gave rise to a fundamental breach. If they win that and you haven’t challenged the first finding, you will be left with nothing. So once you see your employer’s appeal, you will be looking closely at the conclusion on the bonus reduction to see if you can find grounds to appeal that.

This is a conditional cross-appeal: it’s an argument makes no practical difference to anything unless the respondent wins its appeal.

Example 2: unconditional cross-appeal

Suppose you were dismissed, and you complained that the dismissal was both unfair and an act of race discrimination. The tribunal finds that the dismissal was unfair, but there was no discrimination, and your employer is ordered to pay you a basic award and compensation for your lost earnings. You think the decision on discrimination is wrong and there is a fairly clear error of law in it, but – because your financial loss flowing from the dismissal is less than the maximum award for unfair dismissal – the only difference a finding in your favour on discrimination would make is an award for injury to feelings.

In these circumstances, you might well decide not to appeal: you’ve got most of what you were after, and the additional benefit of an award for injury to feelings is just not worth the hassle (and expense, if you’re paying for representation) of an appeal and maybe a re-hearing.

Again, the situation changes if your employer appeals the unfair dismissal finding: if you think there’s an error of law in the discrimination decision, it’s not going to be much more trouble to put in a cross-appeal and argue that, now you know you’re going to have to defend the unfair dismissal decision in the EAT anyway. Here, even if the employer’s appeal fails, it will still be worth something to you if the EAT upholds your appeal on discrimination and directs a further hearing to assess how much your injury to feelings award should be. So you probably want to make your appeal unconditional.

Tribunals often direct the parties to agree a list of issues, but they don’t always explain what that means or how you should go about writing one.

A list of issues is a list of the questions that the tribunal will have to decide. That means it should take the form of a list of questions – not a list of statements. The point is not to make assertions about your case, but to define the things the two sides disagree about. Even people who disagree strongly ought to be able to agree what it is that they are arguing about.

A list of issues can be very short. Suppose you have been dismissed for being rude to your line-manager. Everyone agrees what you said, that this was the reason why you were dismissed, and that you were dismissed without notice. Your list of issues might look like this:

1. Did the Respondent follow the statutory procedures before dismissing the Claimant?

2. Was the decision to dismiss fair or unfair?

But your case may be much more complicated than that. Suppose you resigned after a period in which you had raised a number of complaints about overwork and the conditions in which you were working, and your employer had started a capability procedure. Your list of issues might look something like this:

1. Was the Claimant’s complaint of 11 November 2008 to Peter Waters a protected act for the purposes of section 43A of the Employment Rights Act?

2. Was the Claimant’s grievance of 13 November 2008 to Martine Palmer a protected act?

3. Did the Claimant’s statements about working conditions in the course of his grievance hearing on 26 November 2008 constitute a protected act?

4. Were the Claimant’s complaints about his working conditions the reason for the Respondent’s decision to commence the capability process on 3 December 2008?

5. Did the following, or any or all of them in combination, constitute a fundamental breach by the Respondent of the Claimant’s contract of employment:-
(i) the manner in which the Respondent conducted the grievance hearing on 26 November 2008;
(ii) the Respondent’s decision to start a capability process;
(iii) Martine Palmer’s remark to the Claimant immediately before the meeting of 10 December in which she said, ‘You’ve been nothing but trouble since we took you on. You should never have got through your probation.’

6. If the Respondent did commit a fundamental breach of the Claimant’s contract of employment, did the Claimant resign in response to it?

7. If the Claimant was constructively dismissed, was the reason for the dismissal a protected act?

If you propose this list of issues to the Respondent, they might object that they don’t accept that Martine said ‘You’ve been nothing but trouble..etc.’ If so, you don’t need to argue this out now: clearly it is something the tribunal is going to have to make a decision about. In other words, it is an ‘issue.’ So the sensible response is to agree to amend your list of issues to add the question ‘Did Martine Palmer say, ‘You’re nothing but trouble…etc.’?

It is important to make sure all your main points are included. For example, in a discrimination case, make sure you include everything that you say your employer did to you that was an act of discrimination. If there are various different ways in which you can put your complaint, make sure you include both or all – if for example, you say that your dismissal was unfair and it was an act of sex discrimination, make sure you put in both questions: ‘Was the dismissal unfair?’ and ‘Was the Claimant dismissed on grounds of her sex?’