In the last year 53,339 people have visited this site. They’ve read 133 Posts, starting with What is gross misconduct? and ending with converting weeks to months.

Along the way we’ve dealt with how to lose a good case; when not to object ; and (on 1st April) how to size up the opposition.

Those who share Michael’s obsession with typesetting have considered the proper approach to paragraph numbering; cross-referencing; and emphasising.

In the process, we’ve sold a few books; 107 to be exact. This means that about 10% of our annual sales are made directly through this site – which we’re rather proud of. Those 107 books made about £800 for the Free Representation Unit, from royalties and Amazon commission.

Thank you all for reading. Have a Merry Christmas and a Happy New Year.

Quite often you will have a monthly figure, when you want a weekly one, or a weekly one when you want a monthly one.

Monthly to weekly

Multiply the monthly figure by 12. This gives you the yearly figure. Then divide by 52.

Weekly to monthly

Multiply the weekly figure by 52. This gives you the yearly figure. Then divide by 12.

Warning

This is a straight mathematical exercise. It assumes that the figure you have is representative. If it is not, your result will be misleading. Say for example, that you use a week where the claimant was paid an unusually large or small amount, your monthly figure will be correspondingly large or small.

We have previously advised against making faces and excessive throat clearing during tribunal hearings.

Add to this list ‘swaying’.

This involves shifting your weight from side to side, so that your body rocks from left to right to left and so on.

At best this is a distraction, at worse it may make people sea-sick. Fortunately, it’s rarely a problem in employment tribunals, where everyone sits down throughout the hearing. The danger is in the Employment Appeal Tribunal, where you stand up to speak. When it is your turn, stand up straight and plant your feet firmly. Then don’t move around. There is no need to remain rigidly at attention, but fidgeting will only distract from what you are saying.

Although this particular problem really only occurs in the EAT, the general rule is good in the tribunal as well. Avoid fidgeting; be it swaying or playing with elastic bands.

Claims very often have a main bit that is the real reason for going to tribunal, plus various little bits tacked on that wouldn’t have been important enough to make a claim about on their own, but which you felt, when you drafted your claim, that you might as well put in while you were about it.

So, for instance, complaints that a dismissal was discriminatory or unfair are often accompanied by more minor disputes about holiday pay or contractual notice pay.

When it comes to writing your witness statement, it is easy to overlook these extra bits. But it is important to remember that if the tribunal is going to make a decision about them, it will need to hear some evidence. So when you think you’ve finished your statement, look at it side-by-side with your ET1 and check that you have given evidence in your witness statement about everything you have complained about in your ET1.

If when it comes to it the extra bits just don’t seem important enough to bother with, you don’t have to pursue them. But if that is your decision, don’t just leave them out of your statement – tell the tribunal and the other side that you are withdrawing them. Otherwise you will risk giving the other side an excuse to apply for costs on the basis that you have put them to the trouble of defending this aspect of your claim and then not bothered to pursue it.

Answer: It only has one side.

Hearing bundles, and for that matter, all tribunal documents, are normally printed single-sided.

There is an argument to be had over whether this is a good thing. Single-sided printing means that the blank side can be used for notes, and it is easier to ‘flag’ the bundle with post-its. On the other hand, it does produce bulky files of paper that are hard to manoeuvre. Then there is the environmental damage.

Regardless of your position in that debate, it is best to fall in with the general practice and give the tribunal what it is used to.

When settling claims, employers quite often try to include, alongside a confidentiality clause, a term that says if you breach the confidentiality clause, you will have to repay the settlement sum in full. Any such term is extremely unlikely to be enforceable. The sum is often said to be due “as a debt,” which sounds very stern and official but won’t make it any easier to enforce.

Penalties and liquidated damages

It is well-established in contract law that a term in a contract that requires a party who breaches the contract to pay a specific sum to the other is only enforceable if it is a genuine estimate of what the breach of contract will actually cost the innocent party. So if your contract requires you to give 3 months’ notice of resignation, then a clause that says if you leave without notice you will have to repay your previous 12 months’ salary in full will be an unenforceable penalty clause – unless for some reason it really will cost your employer that much if you leave early.

If on the other hand your contract says that if you leave without notice, you will have to pay your employer £3,000, and £3,000 is a genuine estimate of the additional cost to them of employing an agency temp while they recruit to fill your post, that is a ‘liquidated damages’ clause, and enforceable.

Similarly with confidentiality clauses. It will rarely cost your employer anything – more than some annoyance and possibly embarrassment – if you breach the confidentiality clause in the agreement settling your claim. It is certainly most unlikely that a court would uphold their claim to the return of the whole settlement sum: see CMC Group plc v Michael Zhang EWCA [2006] Civ 48.

You may find this a useful bit of learning if you receive a penalty notice from the company running a private car park, too.

The answer to this question is yes in theory – but it’s almost always better not to.

Mostly, people involved in litigation only call witnesses who are willing to give evidence for them. Typically, the lawyer or representative will interview the witness and find out what they have to say, and then draft a witness statement for them that sets out their evidence in a logical order. The witness will then read the draft statement and make sure they are happy with it before it is finalised. That way, everyone knows before the hearing begins what that witness says happened.

If you think someone has relevant evidence to give, but they are not prepared to talk to you or give you a statement, you can ask the tribunal to order them to attend the hearing to answer questions. But what the tribunal can’t do is order them to co-operate with you. So there is a high risk in asking the tribunal to make a witness order against someone who doesn’t want to be there: you don’t know what they are going to say.

Nine times out of ten – probably ninety-nine times out of a hundred – if a witness isn’t prepared to attend voluntarily, you’ll do better not to try call them at all.

From time to time you will want to emphasise text in a document you are writing. The most common use is drawing attention to a particular part of a quote, but there are many other situations where emphasis is useful.

There is one good way of doing this. It is to put text in italics. Like this.

If, for whatever reason, you don’t like italics, there are two acceptable alternatives. You can use bold or underline.

The reason that the last two are less desirable than italics is that they make your document slightly harder to read and slightly less attractive. These differences are minor. Only a typography nerd will notice or care. For practical purposes, there is little difference between italics, bold and underline. Having said that, since italics are that little bit better, why not use them?

Whatever you do, it is best to pick one method. A document with italics, bold and underline on the same page will look odd and be hard to read.

Even if you stick to one method, it is best used sparingly. If you emphasise everything, nothing will be emphasised. And, again, a page which is half bold type will look strange.

Do not use different colours or changes in size. They look awful.

All of this advice is aimed at emphasising text inside paragraphs. The rules for formatting things like headings or titles are rather more relaxed, although restraint is a good policy there as well.

There are two reasons to get this sort of thing right. The first is that it will make your document look better. It is the written version of shaving and putting on a clean shirt before going to the tribunal.

The second is that lawyers tend to associate badly formatted documents with bad cases. That is not an association you want the tribunal to make. This is one of those prejudices that is partly, but not entirely, justified. The fact that someone writes only in capitals does not mean that their case is weak. But it is rarely a good sign when someone turns in the written equivalent of an impassioned rant, full of strange fonts, half in bold and with large sections of green ink.

Do not, however, allow yourself to become neurotic about formatting your document. Cases are not won or lost on the beauty of the parties’ typesetting (if they were the standards of legal typography would be much higher). The only thing you really need to avoid is turning your document into a mess. If you are aware enough to worry about this issue, you have nothing to worry about.

If you have been knocking around the wonderful world of employment tribunals for a little while, you will have accumulated a few completed cases. It is worth, from time to time, pulling out these files and reading through them. In particular, take a look at the written work you did.

This tends to be quite humbling. You will almost certainly feel that, six months or a year ago, you were terribly green and that now you’d do much better. As well as being quite good for your soul, this helps you identify areas where you can improve further. If your old letters read as unbearably pompous, then that is something to watch out for in the here and now. If you tended to waffle on without making a clear point then redouble your efforts to be clear. Think about how you’d approach the old case now, and you’ll probably get useful insights.

You’ll also probably spot some good work, which you can re-use.

While you’re at it, look at what your opponent did, particularly if they were a professional representative. While the case was going on you probably reacted to their submissions with a little bit of attitude. A sort of general feeling of ‘What tosh, and also pish’. Once the case is over, and you are less involved, you are more likely to be objective. A good opponent is one of the very best people to learn from.

If you’re new to employment tribunal practice, it can be tempting to think that the person who matters is the legally qualified chairman who sits in the middle of the tribunal table and presides over the hearing, and to overlook the other two members (the ‘lay members’ as they are called). This is a mistake. The thing to remember about the lay members is that there are two of them. That is – to labour the point – twice as many as there are Chairmen. In other words, the lay members can, and sometimes do, outvote the Chairman.

So if you are giving evidence or making submissions, try to address your answers to all 3 members of the tribunal, and make occasional eye-contact with each of them. Try to make a mental note of their names. If you want to refer to a question asked by one of them of a witness, it will be awkward (and obvious) if you can’t remember their name – and they are likely to feel overlooked. And if a lay member asks a question that makes it clear that they have misunderstood the evidence or the law, don’t snub or patronise them – just explain.