Or, to be less obscure, you can download the first chapter for free.

You do still have to buy Chapters 2 through 12, I’m afraid. But Amazon is currently offering a small discount.

Inspector Gregory: “Is there any other point to which you would wish to draw my attention?”
Holmes: “To the curious incident of the dog in the night-time.”
Inspector Gregory: “The dog did nothing in the night-time.”
Holmes: “That was the curious incident.”

People are often worried about missing evidence. For example, a claimant knows that most internal communication between his employer’s managers is conducted by email. But, during the disclosure process, no relevant emails are disclosed and their existence is denied.

One approach is to try to persuade the tribunal to allow you to dig out the information. Theoretically, a computer expert could be instructed to search their system and recover relevant evidence. This, however, will be expensive and extremely disruptive. It will almost never be considered proportionate by the tribunal and in the vast majority of cases it is futile to even try.

In 999 cases of 1000 the appropriate course is simply to cross-examine and make submissions on the missing evidence. You can point out just how implausible it is that no emails were sent. If it really is terribly unlikely, and you can convince the tribunal of that, they are likely to draw very negative conclusions about the Respondent’s credibility and conduct.

Tribunals occasionally ask the parties to prepare a thing called a ‘Scott schedule.’ This sounds very technical, but all it means is a table setting out certain information about the claim. It could take a lot of different forms, depending on the kind of thing in dispute, and it could be short and simple or long and complicated. Often a table in a Word document will do; sometimes it will be easier to use an Excel spreadsheet. (So far as I’ve been able to discover, it’s named after a judge who first came up with the idea.)

This will be clearer in the context of a couple of examples.

In a complicated discrimination case, you might be asked to set out in a table each act of discrimination you are complaining of, with its date, the people involved, when you raised a grievance about it, and whether you say it was direct discrimination, harassment, victimisation or indirect discrimination. So in that case, your table would have 5 columns, headed respectively: ‘Incident,’ ‘date,’ ‘people involved, ‘date of grievance,’ ‘nature of claim.’

If you are complaining of failures, on a number of different occasions, to pay you commission to which you were entitled, you might be asked to set out in a table each month for which you say you were underpaid, the total value of the business you say you should have been given credit for, the clients concerned, the amount of commission you were paid, and the amount of commission you say you should have been paid.

If you’ve just been told to prepare a Scott schedule but not what information to put in it, you haven’t been given intelligible instructions at all. Ask for an explanation.

Employers quite often refuse to disclose documents that mention or relate to other individuals, saying they have to keep those documents confidential because of the Data Protection Act.

They are wrong. Section 35 of the Data Protection Act says this:

(1)  Personal data are exempt from the non-disclosure provisions where the disclosure is required by or under any enactment, by any rule of law or by the order of a court.
(2) Personal data are exempt from the non-disclosure provisions where the disclosure is necessary—
(a)  for the purpose of, or in connection with, any legal proceedings (including prospective legal proceedings), or
(b)  for the purpose of obtaining legal advice,
or is otherwise necessary for the purposes of establishing, exercising or defending legal rights.

In other words – in this context – there is nothing in the DPA to prevent an employer from disclosing documents if disclosure is necessary in employment tribunal proceedings. At most, if the relevance of your request isn’t obvious, they might say that they are not sure that section 35 applies because they are not sure disclosure is ‘necessary’ for the stated purposes – so if you want it you’ll have to get the tribunal to order it. But that doesn’t mean the DPA will be of the slightest help to them in opposing your application: you’ll just be arguing about whether disclosure is necessary, which you’d always have to establish before you got an order for disclosure.

Lots of employment tribunal cases are won or lost depending on how thorough a job the claimant has done of shaking all the relevant documents out of the respondent.

A particular point to keep in mind is just how much communication is now done by email. That can be easy to overlook if your own job doesn’t involve sitting at a computer all day. But for those who do (and that means almost all office-workers), many things that a few years ago would have been said on the phone or face-to-face are now put in an email.

The difference between picking up the phone or putting your head round the door and writing an email, of course, is that the email leaves a permanent record. So if your managers have been discussing by email how to go about sacking you (for example), that is material that you should be able to get hold of when it comes to disclosure.

What do you do if you’re desperate for a pee and there’s still an hour to go until lunchtime or the end of the day?

If you’re just observing the hearing – whether it’s your case, or you are a friend or relative of the claimant’s, or a member of the public, or you’re a witness waiting to give your evidence – you can just quietly leave the room. You may have various reasons for coming and going during the hearing, and there’s no obligation to stay put once you’re there.

But if you are in the middle of giving your evidence, or you are representing one of the parties, the hearing can’t go on without you. That doesn’t mean you have to be heroic: just ask for a break. For some reason, the standard way of saying this in the employment tribunal is to ask for a ‘comfort break.’ It is a common enough request and one that is pretty much bound to be granted: there’s no need to feel anxious or embarrassed about it.