In Is this the best you can do? we emphasised the important of rewriting and editing.

It’s easy to say that rewriting is important, but harder to explain how to do it. It’s easy to say ‘Get the words right’, but hard to explain what the right words are or how you find them. Over the next couple of weeks, we’ll be trying to give some helpful guidance.

A good starting point is to recognise that rewriting covers a wide range of different tasks.

Rethinking

Lots of us do a lot of our thinking about cases by writing about them. So rewriting is an excellent time to rethink. On reflection, does your argument make sense? Have you missed something out? Does the witness statement cover all the information it needs to?

Presenting

Once you are confident that you are saying the right things, you can consider whether you are presenting them most effectively. Are you dealing with things the right way and in the right order? Is there a way of making your argument more persuasive?

Line-editing

This is the sentence by sentence work. It means looking at each sentence, each paragraph, and asking ‘Is there a better way of putting this?’ Better, in this context, means shorter, simpler and more direct.

Nit-picking

Finally, you check your spelling, punctuation and grammer. Very few people get this absolutely right all the time, but it is worth working at.

There is a Tribunal Procedure Committee, which drafts rules for tribunals.

But the Committee only deals with the First-tier and Upper Tribunals; the employment tribunals are neither. So the Committee’s work, and their rules, are not relevant to employment tribunal litigation.

Winston Lord was an aide to Henry Kissinger during the Nixon administration. Once, after Lord had written a draft report, Kissinger asked “Is this the best you can do?” Disheartened, Lord took the report away and redrafted it. Again Kissinger sent it back, saying “Are you sure this is the best you can do?”

He submitted another eight drafts, getting exactly the same reaction each time. Finally, he sent in a ninth. Kissinger called him into his office and asked again, “Is this the best that you can do?”

Lord, by this stage, was more than a little frustrated. He replied “Henry, I’ve beaten my brains out – this is the ninth draft. I know it’s the best I can do: I can’t possibly improve one more word.”

Kissinger looked up from his desk, “In that case,” he said, “now I’ll read it.”

Kissinger sets a bad example for management, but a good example for writing.

Moving complicated ideas from one head to another is hard work. Someone always has to sweat and struggle over it. If you don’t do the hard work when you write, you are leaving it to your reader. The problem is that your reader may not bother.

Interviewer: How much rewriting do you do?
Hemingway: It depends. I rewrote the ending of Farewell to Arms, the last page of it, 39 times before I was satisfied.
Interviewer: Was there some technical problem there? What was it that had stumped you?
Hemingway: Getting the words right.

If a case goes part-heard, or the tribunal isn’t able to meet to discuss the outcome until some weeks or even months after the hearing, the tribunal may have rather dim recollections of how the witnesses came across by the time they make their decision. One thing that might help refresh their memories – assuming, that is, that you want them to remember your evidence – is pasting in a mug-shot of yourself at the end of your statement.

This isn’t normal practice, though – it’s something that I think would be quite useful if it became normal practice, but at the moment it would be a novelty. So if you try it, don’t be thrown if the tribunal and/or the other side is a bit surprised. (And if you do try it, please comment on this post to let me know how it went down.)

A standard agenda for case management discussions is being piloted by three employment tribunal regions.

If your case is being heard in one of those regions, you will probably be sent it and asked to complete it and send it to the tribunal and the other side in good time before the CMD. But if your case is being heard in one of the other regions, it is still quite a useful check-list of the kinds of things the tribunal is likely to want to discuss at the CMD. And there’s no reason why you shouldn’t use it as the basis for your own draft agenda if you want to.

The law is often a bit weird, and it’s rarely quite how we would like it. But it is generally not an ass.

So if you read the Working Time Regulations 1998 and determine that a. the maximum statutory entitlement to holiday pay is 28 days a year and b. your client is entitled to the equivalent of four months salary in accrued holiday pay for the year, you have probably gone wrong. Take a deep breath and then start again.

Sometimes, particularly if you are new to employment law or how tribunals approach things, an unlikely seeming conclusion will be the right one. But it is worth remembering that the law is intended to solve practical issues in a vaguely sensible way. The less likely an answer seems, the closer you should look at how you reached it.

Most employment cases involve one claimant and one respondent. But many involve more – multiple claimants, multiple respondents or both.

There are many ways in which this makes things more complicated. One area to be particularly careful of is settlement. It is important to make sure that you understand precisely what you are doing, and that everyone else does too.

Sometimes, one Respondent will want to settle the whole case. In other words, make a deal that covers him, and everyone else. In other cases, a Respondent will settle on the basis that you withdraw against her, but continue against the other Respondents. Sometimes, the Respondents will collectively agree to settle, with everyone being a party to the agreement.

Similarly, where there are multiple Claimants, a Respondent may offer settlement, but only if both Claimants agree. After all, the main point to settling for a Respondent tends to be the opportunity to get rid of the case. Settlement with one of two parties, is therefore much less attractive than settling with both.

All sorts of combinations and deals are possible. So what you want to do will depend on your circumstances. The important thing is to make sure that you, and everyone else, understands what is on the table. And that the written agreement accurately reflect your final deal.

Having a right, for example the right not to be unfairly dismissed, or to have reasonable adjustments made to your disability, is one thing. But on its own, it is not worth much.

The best way of explaining why is a worked example:

s94 of the Employment Rights Act 1996 creates the right not to be unfairly dismissed. It does this simply enough, by saying in effect ‘An employee must not be unfairly dismissed by his employer.’ This right is then explained and detailed in the rest of the ERA.

But on its own, this really doesn’t do anything. You may have a right, but what happens if it is breached? What, in other words, is your remedy?

This is set out in some of the later sections of the ERA, s112-126. These set out the basic and compensatory awards – as well as the various re-employment orders that might be made

So this far, you have both a right and a remedy. But even this isn’t enough. You need a way of getting your remedy. Otherwise your employer could say “Yes, you should not have been unfairly dismissed, and I should pay you compensation – but what are you going to do about it?”

The answer, of course, is that you are going to go to an employment tribunal. But if you are to do so, the tribunal must have jurisdiction. That is to say, it must have the legal power to deal with your claim. That’s set out in s111 ERA, which tells us ‘A complaint may be presented to an employment tribunal against an employer by any person that he was unfairly dismissed by the employer.’ Without s111, the tribunal wouldn’t be able to hear any unfair dismissal claims. And because it says that unfair dismissal claims will be heard by the employment tribunal, they cannot be dealt with by another court. If you tried to bring an unfair dismissal claim in a County Court, it would be rejected, because the County Court does not have jurisdiction.

All this is important, because there are traps for the unwary. You must not assume that, just because you have a right, you are entitled to compensation in a particular way or that you will be able to bring a claim to the tribunal.

For example, the Working Time Regulations 1998 contain a right that you will not have to work more than 48 hours a week (unless you agree in writing to opt-out) and that night workers do not have to work more than eight hours at a time. But there is no entitlement to compensation if these rights are breached and you cannot bring a claim to the employment tribunal about them. They are enforced by the Health and Safety Executive, and various other Government agencies.

For each claim you bring to the tribunal you must have some idea of what compensation can be awarded, and where the tribunal’s jurisdiction comes from. Otherwise you may be caught out: at best, you’ll have have wasted your time, and at worst you may have missed the chance to bring your claim in the correct forum, or risk an order that you pay the other side’s costs.