People involved in litigation quite often assert that they ‘reserve the right’ to do something or other – often to amend their ET1 or ET3.

This is mostly pointless. If you want to amend your ET1, you need the tribunal’s permission, and that’s just as much the case if you had earlier claimed to ‘reserve the right’ to amend it. You can’t reserve the right to do something that you need someone else’s permission to do. (If you told your child it was bed time, you wouldn’t think much of ‘Ok, but I reserve the right to stay up until midnight tomorrow night.’)

And if what you’re claiming to ‘reserve the right’ to do something you’re entitled to do without anyone else’s permission, then it’s really just a pompous way of saying that it is something that you might choose to do it at some point in the future, even though you’re not doing it now.

This is one of the key questions you will want to know the answer to before you start employment tribunal proceedings; and having a reasonably realistic view of the value of your claim is essential if you are to negotiate sensibly, too.

The answer depends on the type of claim and a whole host of other specific circumstances, but it’s possible to give a few general pointers. In most cases, the idea will be to compensate you for what you’ve lost by reason of the unlawful conduct that forms the basis of your claim. There are exceptions, but they tend to involve fairly small sums. If your employment has ended, your main argument will be about lost earnings. If your claim is for discrimination, you will be making a claim for injury to feelings as well: most awards fall somewhere in the range £5,000 – £15,000, and awards over £25,000 are rare. If discrimination has caused significant injury to your health, you will be looking for an award for that, too: your starting point in assessing this is probably the Judicial Studies Board’s Guidelines for the Assessment of General Damages in Personal Injury Cases (9th ed, OUP £21.99)

In any case where you are claiming lost earnings because you have lost your job, you will be under a duty to ‘mitigate’ your loss. What that means is that just because you’ve been dismissed, however unfair (or discriminatory) the dismissal, you can’t expect to sit back and claim lost earnings for the rest of your career. You are expected to try to find another job. If there are good reasons why you can’t, or why any job you are likely to get will be for a much lower wage than you were earning before, you’ll need to be able to explain. (See ‘Mitigation‘) It is fairly rare that tribunals award compensation to cover more than a year or two’s lost earnings – and a few months is more usual. For the kinds of circumstances that might persuade them to look at a longer period, see ‘Push your luck,’ and ‘The mummy track.’

There’s a limit, currently £66,200, on what you can recover as compensation for most types of unfair dismissal – but most awards get nowhere near that limit. There’s no limit in theory to what you can get for discrimination or for a whistle-blowing dismissal, but that doesn’t mean that awards have to be huge. In 2006/2007 (2007/2008 figures are not yet available), the median award for unfair dismissal was £3,800; and the medians for race, sex and disability discrimination cases were about £7,000, £6,700 and £8,200 respectively.

In particular, don’t let newspaper reports of awards in the hundreds of thousands, or even milllions, give you the wrong idea. Tribunals do occasionally make very large awards – and those, of course, are the ones that hit the headlines – but they are rare. The best way of getting a huge award is to have an extremely well-paid job to start with: if you’re being paid in the hundreds of thousands every year, then you’ll clock up large losses in a short period out of work. People earning normal salaries will only get large awards if they can show that they are likely to suffer a very long period of future loss. That – because of the duty to mitigate – is usually difficult.

If you have an active case, either as a representative, or a litigant in person, grab a pad of paper and try this exercise. It will probably take about 10 minutes.

Without looking at any papers, write down everything that the respondent did wrong. Try to write in short sentances, with one point per sentence.

For example:

• They didn’t let me bring my union rep to the meeting
• Nobody talked to Alice, who could have told them what happened
• Dismissal was much too harsh. I just lost my temper for a moment
• They didn’t let me ask Tom any questions during the meeting
• Bill shouldn’t have been the one running the appeal. He was involved in the original incident
• This sort of thing happened all the time, it was unfair to punish me but nobody else.

You will probably find that many of your points are connected. So group those together under general headings.

• The disciplinary process wasn’t run properly
• They didn’t let me bring my union rep to the meeting
• They didn’t let me ask Tom any questions during the meeting
• Bill shouldn’t have been the one running the appeal. He was involved in the original incident
• The investigation wasn’t good enough
• Nobody talked to Alice, who could have told them what happened
• Dismissal wasn’t a fair sanction
• Dismissal was much too harsh. I just lost my temper for a moment
• This sort of thing happened all the time, it was unfair to punish me but nobody else.

Now, rank these general points in order of importance.

1. Dismissal wasn’t a fair sanction
2. The investigation wasn’t good enough
3. The disciplinary process wasn’t run properly

This list is what your case is about.

Quite often after a settlement or tribunal award the respondent will send only part of the amount due.

Normally, although not always, they will offer some sort of excuse for this. These range from the really rather plausible through the quite possible to the downright unlikely. Depending on the quality of the excuse, you may want to consider starting to enforce the award.

But whatever else you do, pocket what is actually on the table. If it is a cheque, pay it in. If it is cash or a bank transfer there is no need to keep it separate to other money or avoid spending it.

People are often worried about this. They fear that, by paying in a cheque for half the amount, they may lose their entitlement to the other half. If the respondent is trying to sell them on payment by instalments they want to be sure that they are not seen as accepting that.

This is just not how things work. As a practical matter, it may be sensible to write a letter making your position clear, since it may prevent the respondent getting confused. But as a matter of law taking part of what you are owed does not change your entitlement to the rest of the money, or commit you to anything that the respondent is proposing.

Two previous posts (learn to type and laptops in the tribunal)
suggest that it’s useful to be able to take typed notes of evidence during hearings. This is about one of the reasons why that is so.

If your typing speed is up to it, a lot of the time you will be able to capture most of the actual words spoken by the witnesses. If you’re taking notes on paper, unless you have shorthand skills, you’ll just be writing down the gist.

Sometimes the gist is good enough. But when a witness is hedging and evading, there often isn’t any gist. That’s the point. The interesting thing about their answer to the particular question is that they don’t have an answer.

Here’s a comparison drawn pretty much from life. First, the typed note of what the witness actually said:

Q: It was a make believe project wasn’t it?

A: What I mean by that in terms of his job responsibilities but also if you look at job responsibilities that doesn’t expand his management of projects which is what he said he was looking to do. I didn’t give him make believe projects. To make it a little bit easier to understand this was an area that was new technology, if I am in my current job I could look at different things there was lots of different new things coming in. I’m looking at the other managers, the projects and he had great visibility. It’s an opportunity to really grasp some of these projects that was given him to do.

If you were taking a manuscript note of evidence like this, you’d probably not have got much more than:

Q: It was a make believe project wasn’t it?

A: No

The latter is far too kind – and not in a good way. When it comes to closing submissions, being able to remind the tribunal just how much meaningless noise a witnes has made by quoting bits of their woffle word-for-word can be very powerful.

The Court of Appeal has issued a sharp reminder of the limits of the Burns / Barke procedure.

The Burns / Barke processes (named from the cases of Burns v. Royal Mail Group plc and Barke v. SEETEC Business Technology Centre Ltd) is the system by which the Employment Appeal Tribunal may ask an Employment Tribunal questions to clarifying their reasoning.

The Court of Appeal makes two points.

Firstly, it is important for the EAT to focus its questions and clearly identify where the ET’s reasoning may be inadequate. It is not appropriate to ask a general question or to ask the ET to supplement its decision if it has already adequately explained its reasoning.

Secondly, the ET must be careful to limit itself to answering the questions asked by the EAT. It must be careful not to act as an advocate for its own decision. In this case, the ET provided notes of evidence and commented directly on the notice of appeal. This, the Court of Appeal, concluded went beyond the scope of the Burns / Barke process.

What does this mean for those appearing in the EAT when are Burns / Barke procedure is followed?

At the point at which questions are being formulated it is appropriate to make submissions on the wording of the question. This should, as the Court of Appeal says, narrowly worded and focused on the ET’s reasoning.

If the ET does go beyond the scope of the Burns / Barke rule, you should make submissions that this additional material cannot be used to correct a flawed decision. The purpose of the Burns / Barke process is to allow the tribunal to clarify their existing decision; not to allow them to write a new one.

Woodhouse School v Webster

A number of people have commented or emailed about “Do not submit” which recommended that advocates eliminate “I submit” from their vocabulary when addressing the tribunal.

Since the consensus is against me it might be worth setting out in more detail why I dislike it.

Firstly, it offends against the signal to noise principle. Submissions should contain as high a percentage of substance as possible. Anything that does not contribute to your argument should be removed. “I submit” adds nothing meaningful; the tribunal knows you are making submissions.

Secondly, there is a real risk of it becoming an annoying tick. Any phrase repeated often is likely to grate. Once you start saying “I submit” it is hard to know when to stop. After all, everything you say is a submission. Many people find themselves repeating in almost every paragraph they write or every minute as they speak. This has much the same impact as fingernails on a blackboard.

Finally, it puts distance between you and your submissions. It is not as bad as saying “My client’s instructions are to submit”, but the affect is similar. By saying “I submit” you are emphasising your formal role. This may be more comfortable for you the advocate, but it make it harder to communicate conviction.

Abigail makes the good point that “I submit” can be used to show respect for the tribunal. There are certainly moments when this is useful. Say that the tribunal is strongly against you on a point and the dialogue is beginning to descend into a wrangle, rather than a discussion. Using “I submit” might emphasise the formal roles and defuse the confrontation. In general, however, this should not be necessary. You must respect the tribunal, but this means begin polite to them and keeping in mind their judicial role (meaning that you recognise that they are in charge of the hearing). Formal phrases, be they “I submit” or “Respectfully…” do not add anything to this.

Does anyone else have any views?

By the time you reach tribunal relationships are normally strained. In some cases emotions run very high, to the point where any meeting between the parties is distressing.

Some contact is inevitable, but there is nothing wrong with minimising it. If you are a representative, you should be sensitive to these issues and try to protect your client.

For example, at the end of case, or the end of a day, you can agree that one side will leave first, while the other stays in their waiting room for five minutes. This avoids uncomfortable meetings on the way out.

Most importantly, it will tell you where and when the tribunal will take place. This sounds obvious. It is, but people do get it wrong. If you rely on a conversation with a collegue or client, you risk that he mispoke or you misheard. Make sure you see the notice of hearing to be sure.

The other pitfall to avoid is that some of the smaller hearing venues are administered elswhere. Brighton, for example, is administered in Southampton. So letters from the tribunal will have the Southampton address. It is easy to assume that the case will be heard in Southampton. Again, the notice of hearing will put you right.

In addition to time and place, the notice of hearing may contain other useful information. It will say whether you are expected to deal with liability and remedey, or liability alone. If you are actually listed for a Pre-hearing Review it will say so, and should give some indication of what issue will be dealt with.

You should always see the notice of hearing in any case you are involved in. If you do not have it, get a copy.

Many lawyers write and say things like:

• In my submission, the employer failed to follow a fair procedure
• This, I submit, was an act of direct sex discrimination
• I am going to submit that this claim should be allowed in out of time.

All of these examples can be improved easily, by removing any reference to submissions. For example:

• The employer failed to follow a fair procedure
• This was an act of direct sex discrimination
• This claim should be allowed in out of time.

The second examples have the advantage of being shorter, clearer and more direct. This makes them more persuasive.