In principle, as long as you make your meaning reasonably clear, details of grammar, punctuation and spelling oughtn’t to matter to how the tribunal sees your case.

But things are not always as they ought to be. If you’re an adviser or representative, some employment judges and/or tribunal members will think the less of you if you get these things wrong, and that can affect the attention they pay to what you say. Let’s not get into an argument about whether ‘wrong’ has any real meaning here: it has a meaning in the heads of some at least of the people who may be making decisions about your case. That’s real enough to matter. It probably mostly boils down to snobbery, in fact.

(If you’re a claimant rather than a claimant’s representative, this post isn’t really for you: tribunals will be much more tolerant of what they see as mistakes, because you’re not holding yourself as any kind of an expert.)

So here are a few common errors to avoid.

Split infinitives

The infinitive is the form of the verb that goes ‘to go,’ ‘to do,’ ‘to litigate’ etc. The sin in question is putting anything at all between the ‘to’ and the main bit of the verb; as in ‘to boldly go.’ There are scholarly arguments to be had about whether this is really an error in English or not, but quite a lot of people have been taught that it is.

Criterion/ criteria

The singular is ‘criterion.’ Not many people know that – but those who do tend to care disproportionately. So if you speak of ‘a criteria’ you may mean either ‘a set of criteria’ or ‘a criterion.’ ‘A criteria’ is like ‘a mice’ or ‘a children.’ One criterion; several criteria. (Some will also wince at ‘data’ used as a singular, though I don’t think I’ve ever heard anyone say ‘datum’ meaning a single piece of information. As for hoi polloi – just don’t go there: you’ll annoy someone however you use the expression.)

Practise/ practice

Practise is the verb, practice is the noun. So for example, a lawyer may practise as a member of a practice.

Apostrophes

Apostrophes are notorious, but if you stick to these four rules you’ll mostly be ok:

Example

the judge’s wigs’ fleas’ legs: one judge, two or more wigs, many fleas (well – more than one anyway); and 6n legs, where n is the number of fleas.

If an appeal is made to the EAT, they will notify the other side. This, however, is likely to take a little time, because the appeal will have to be processed by the staff there.

It is common to send a copy of their appeal to the other side at the same time at lodging it with the EAT. There is no requirement to do this, but it’s normally a good idea, since scrupulous good manners do no harm.

There are, however, circumstances when you might want to hold off. For example, if there is a chance that the Respondent will pay an existing award before learning of your appeal to increase it, but will become reluctant once they realise that an appeal is being made, you might want to put off the point at which they will learn of it. This is a tad ruthless, but perfectly within the rules.

The flip side of this is that, if you’re making decisions post-tribunal, you shouldn’t assume that the other side hasn’t appealed, just from their silence. If its important to you, ring the EAT who will be able to tell you whether an appeal has been received.

When you arrive at the tribunal, it’s normal to introduce yourself to the other side. Often there is something specific to discuss – last minute negotiations, late evidence, a postponement request or similar. Even if there is not, it is sensible to check in with them, if only because they may have something specific to deal with.

If you don’t know the other side’s representative, the standard approach is to put your head round the door of the Respondent’s waiting room and say, in a carrying tone, ‘Is there anyone here for Smith v Hogan?’

It’s best to use both parties’ names. It gives your opponent two chances to recognise the case and, if you (or your opponent) has got the pronunciation of one name wrong, they should recognise the other one. This sounds a bit silly, but bear in mind that your opponent may be busy reading something in the bundle, on the phone to their solicitor, or otherwise distracted.

If your opponent is there, she should stand up and introduce herself. When both sides are represented, the representatives will then normally step outside the waiting room to talk.

Quite often, a represented party will have arrived before their lawyer. In general, you shouldn’t go into the detail of a case with a represented party. It’s perfectly all right to say something like: ‘We’ll be wanting to rely on a few additional documents – here are copies for you. Perhaps you could ask your lawyer to come speak to me about this when he arrives?’ But a detailed discussion of the case or negotiations should wait for the lawyer to arrive.

Tribunals have power, in certain limited circumstances, to order your employer to continue your employment until your unfair dismissal claim has been heard. This is called ‘interim relief.’ The power isn’t much used, but it is potentially very valuable.

When you can get it

The three key facts about interim relief are:

What it means

If you get it, you are either reinstated into your old job, or re-engaged in a comparable job, or else (which is probably the most likely outcome) your employer is simply ordered to carry on paying you in an arrangement rather like suspension on full pay. Claims can take many months and sometimes a year or more to come to a hearing, so getting the tribunal to order your employer to give you your job back meanwhile – or at least carry on paying you – could make a big difference.

Practicalities

Because of the very short deadline for claiming interim relief, applying for it means working fast. The usual warnings about the cost of instructing lawyers are relevant, only more so: urgent work tends to be more expensive than non-urgent work; and your choice of lawyer is likely to be more restricted than if you had a couple of months to play with.

Time for making a considered decision about whether or not to go ahead with the application at all will be squeezed, too: you and your adviser will be making decisions under considerable pressure of time with less information and less thought than you’d like. The result could be that you spend a lot of money making an urgent application that you’d actually have been advised not to pursue if there had been more time to consider its strength.

Getting free representation in time for an application for interim relief will be even more difficult. Lawyers in Citizens Advice Bureaux and law centres are almost always rushed off their feet: even if you’re lucky enough to get help, it can easily take several weeks just to get an appointment.

This all means that if you want to try for interim relief, you may not have much realistic option other than to make the application yourself.

There’s no special form for applying for interim relief: you’ll need to complete an ET1 form in the usual way (only faster), and write in box 6.1 under ‘What compensation or remedy are you seeking?’

interim relief under section 128 of the ERA 1996

Because applications are quite rare, and tribunal staff may not be looking out for them, it might also be an idea to write in box 7.1 something like:

This claim includes an application for interim relief under section 128 of ERA 1996, so a PHR to determine that application will be required as soon as practicable.

The hearing

The tribunal will conduct a PHR (pre-hearing review) to determine the application. It has to do this ‘as soon as practicable’ after receiving it. That means you can’t relax after rushing to get your ET1 presented during the first 7 days after dismissal: you’ll need to be ready for the hearing of the application very soon after that.

At the PHR, the tribunal can consider oral and documentary evidence. Your job is to persuade the tribunal that your complaint that you have been dismissed for one of the prohibited reasons is ‘likely’ to be successful at a full hearing. Because the application is supposed to take place so quickly, you can’t expect the tribunal to consider a large volume of evidence. Keep both oral and documentary evidence to a minimum: select your very best points, and focus on them; and if you get the chance to cross-examine any witnesses on the other side, keep that short too. Apart from anything else, you don’t want to give them a practice run at answering all your questions before the main hearing. If your story is long and complicated, you are unlikely to succeed in this application: see the EAT’s judgment in Raja v Secretary of State for Justice. The application is probably only worth making if it’s pretty obvious that you’ve been dismissed for whistle-blowing or one of the other prohibited reasons.

Acknowledgment

This post was inspired by a useful article on the same subject by Stephen Musgrave of Bird & Bird in the Employment Lawyers Association Briefing. You can read his article – reproduced by kind permission of the author and ELA – here.

Any time, but some times are better than others.

Soon

The sooner you settle your case, the less it will have cost you. That’s true whether or not you’re paying anything for representation, because the emotional costs of running a case are high even if you’re getting free representation or (and especially) if you’re representing yourself. If you settle your case for £10,000 now, having spent £1,000 in legal costs, that’s £4,000 better than settling it for £20,000 in a few months having spent £15,000 on it. Once you take into account the emotional costs, it’s better than settling it for £20,000 in a few months having spent £11,000, too.

When the other side is vulnerable

Suppose the other side was hoping to get rid of the case at a 1 or 2-day Pre-Hearing Review on the grounds that you claimed too late (for instance), but the tribunal has just confirmed that the case can go ahead, and listed it for 10 days in a few months’ time. You’re in a strong position at this point: the other side is now facing a longer hearing and a lot of additional work and legal fees. Having been disappointed of their hope to get rid of the case one way, they may be more open to the suggestion that they can get rid of it another way: by paying you some money.

When the other side has work to do

If you’ve just sent the other side a long request for additional information and/or documents, for example, or the time is coming close when they will have to start work on their witness statements, this may be a good moment: they can avoid doing that work by settling the case. (But don’t read this as a suggestion that you should deliberately create unnecessary work for the other side: that will annoy the tribunal a lot if they get a whiff of it, and you could be at risk of a costs order for unreasonable conduct of the proceedings.)

I posted a few days ago about the benefit of making it easy for people to do things you want them to do. The EAT in one of its standard letters sets a nearly perfect example of how not to make it easy:

Your attention is drawn to Employment Appeal Practice Direction 2008 paragraphs 6, 13 and 14 concerning the filing of bundles, skeleton arguments and authorities for the forthcoming hearing. Failure to file the documents in accordance with the directions may result in you being required to appear before the President or another Judge of the EAT to explain your non compliance.

There are a lot of detailed instructions in the Practice Direction about what has to go in bundles, skeletons and lists of authorities and how they are to be presented, but the important and urgent thing you have to know – so you can put it in your diary – is what the deadlines are for getting these documents in. Clearly the EAT feels quite strongly about parties doing these things at the proper times, or the instructions wouldn’t be backed by such a blood-curdling threat. But it would be much more likely to get what it wanted if its standard letter said instead something like:

Four copies of your agreed bundle of documents for the hearing must be lodged with the EAT by [date]; 4 copies each of the skeleton arguments are due by [date]; and 4 copies of an agreed authorities bundle must be lodged by [date]. You will find detailed instructions about these things at paragraphs 6, 13 and 14 of the Practice Direction (copy enclosed).

The decision to pay for legal representation in an employment tribunal case is not one to take lightly: see Getting Advice.

But if you have decided that this is what you want to do, you may be puzzled about the difference between barristers and solicitors, and doubtful about which you should instruct. The difference in what barristers and solicitors do isn’t always clear-cut, and the choice isn’t entirely straightforward.

The traditional route – barrister and solicitor

The traditional route is to instruct a solicitor first, and then to decide in consultation with your solicitor whether and if so when you need to instruct a barrister as well. Often solicitors handle the early stages of the claim, look after the correspondence and negotiations, draft the statements, compile the bundle and so on; and then instruct a barrister to represent you at the hearing. Sometimes a barrister is instructed earlier, and will be asked to advise on the merits of the claim, or draft the ET1, or do other specific pieces of preparatory work. (This is generally a good idea: if you’re going to pay for two lawyers, you might as well have them both on the case early enough to make a real difference to things like making sure you claim everything you ought to claim, shake all the relevant documents out of the other side, etc..)

This can work well. Two heads often are better than one, and it is good to have a team to divide up the many tasks involved in a hearing. It’s easier to focus on preparing to cross-examine witnesses, for example, if you don’t have to worry about responding to the other side’s last-minute application to postpone the case, or contacting your witnesses and making sure they all know when and where they are needed. It is expensive, though: even if your solicitor doesn’t attend the hearing, so you only have to pay for one lawyer’s time at that stage, two people dividing a task between them tend to spend longer on in total – e.g. by reading and commenting on each other’s draft documents, or updating each other about developments – than one person doing it alone would.

Solicitor only

Some solicitors will be happy to represent you in the tribunal as well as doing all the preparatory work. This can work well, too. You lose the benefit of the tasks being distributed, but a solicitor who drafted the claim and has had conduct of the case ever since is likely to know it very well indeed. And you save money by having one lawyer representing you instead of two. The main disadvantages are that on average solicitors tend to be less practised advocates than barristers, because they do it less; and that the hearing itself can work out quite expensive this way. That’s because as a rule barristers charge a fixed fee (known as a ‘brief fee’) for hearings, whereas solicitors generally continue charging by the hour – and hearings consume time at a frightening rate.

Barrister only

Some barristers now accept instructions direct from the public for certain kinds of work, so you can also choose to instruct a barrister only. This can be quite an economical way of running your case, because barristers have lower overheads than solicitors, and that means they tend to charge lower hourly rates for their work. And they will still probably charge a brief fee for the hearing, so at the point where the case really starts to eat time, you do at least know in advance exactly what it’s going to cost you.

But you need to be aware that there are limits on what a barrister can do for you: they can’t, for instance, conduct correspondence with the tribunal and the other side, or negotiate on your behalf before the hearing.

Those are quite important limitations. If you’re going to instruct a barrister direct, you need to be confident that you can manage all the correspondence involved in running the case efficiently, and keep track of what needs to be done by when. If it’s your case, those things will be pretty stressful: think carefully about whether you really do want to take them on.

Wanting someone to handle negotiations for you early on in proceedings will often be a strong argument for using a solicitor. A barrister can advise you about what offers to make or accept, and they can draft letters for you to send out in your own name – but they can’t pick up the phone to your employer’s solicitor and use a practised combination of charm and menace to get you the best possible deal. A good solicitor can do that – and it can make a big difference.

Sometimes, after the tribunal hearing, you learn of something that, if you’d know about it at the time, you would have wanted to present to the tribunal. The fresh evidence might be a document, an expert’s report or a new witness.

If you won without the evidence, this won’t matter. But if you lost all or part of your case, you are likely to want to do something to change the judgment.

To use new evidence to challenge a tribunal decision, you will need to show that it satisfies the test set out in Ladd v Marshall. This is that:

1. The new evidence could not have been obtained with reasonable diligence for use at the original hearing,
2. The new evidence would probably have an important influence on the result of the case, and
3. The new evidence must be apparently credible, though it need not be incontrovertible.

This is not an easy test to meet. The tribunal system is, for obvious and sensible reasons, reluctant to reopen cases that it has already dealt with. Many applications fail, either because the tribunal believes that if reasonable steps had been taken the evidence would have been available, or they simply do not think it is significant enough to justify reconsidering the case.

But if you decide that the new evidence does pass the test, what are the mechanics of getting it considered – do you appeal, or ask for a review?

In the recent case of Adegbuji v Meteor Parking Ltd, the Employment Appeal Tribunal has said that the appropriate course is to apply for review, and that the EAT may not have the jurisdiction to deal with new evidence appeals.

These are two slightly different points. The President of the EAT, Underhill J, says review is more sensible than appeal, because the tribunal is best placed to decide how significant new evidence is and whether it is credible. So parties should apply for a review, and any appeal based on the same point, will normally be stayed until the review is completed.

This reasoning is hard to argue with, and since the President is in charge of the EAT, his approach is likely to be followed. In general, therefore, new evidence challenges should be made by review, rather than appeal.

There is probably no advantage, in these circumstances in applying for both a review and an appeal. In theory, this might give you two attempts at the issue, once on review, and then again on appeal if the review is rejected. But in practice, the EAT is unlikely hear an appeal when the same issues have already been dealt with on review. They would only do so if the tribunal had made an error of law during the review – but in that case the review decision itself can be appealed, so you can safely wait until you have that decision before deciding whether or not to appeal.

But there could be circumstances in which you’d want to appeal instead. For example, if you are appealing on a number of other grounds as well, it may seem more sensible to appeal, and have the whole case dealt with by the EAT – rather than applying for an appeal and a review. Generally I suspect that this approach is unlikely to find favour with the EAT, but it might work in the right case.

But the second point is that the President suggests that the EAT may not be able to deal with new evidence cases at all. The EAT’s powers to deal with appeals is set out at s21 of the Employment Tribunals Act 1996. This says that ‘An appeal lies to the Appeal Tribunal on any question of law arising from any decision of … an employment tribunal’. In Adegbuji, the President expresses doubt that new evidence can amount to a ‘question of law.’ If he’s right, then the EAT cannot deal with such points at all.

Adegbuji does not resolve this point, so at the moment there is no binding authority to prevent you arguing that ‘a question of law’ can cover an appeal on the basis of new evidence and the EAT has jurisdiction. There are a few problems with this: how can new evidence have anything to do with questions of law and how can the tribunal err in law, if it has decided the case correctly on the information available to it? Nonetheless, the issue is not clear cut and arguments could certainly be made the other way.

The key point is that it would be most unwise to rely solely on an appeal. If the EAT lacks jurisdiction, your appeal would be dismissed. By the time that this had happened the time-limit for review would have long passed. While new evidence is often a good reason for extending time – after all, if the evidence is genuinely new, how could you have applied earlier? – this justification falls away once you have the evidence. If you could apply to appeal, the tribunal may say, why could you not apply for a review?

The safest thing to do, therefore, is to apply for a review and an appeal, but ask for the review to be stayed pending the outcome of the appeal. Do not be surprised, however, if the tribunal and EAT prefer for the review to be dealt with first, regardless of your wishes.

Adegbuji v Meteor Parking Ltd

Someone recently found us by searching this question.

The answer is no – you don’t have to volunteer to repay it, anyway. A tribunal award is basically a guess about what the future will hold. You must tell the truth at the hearing about your prospects. But if you win compensation on the assumption that you’ll be out of work for another 6 months, and then the week after the hearing you land a new job that’s better paid than the old, that’s just your good luck.

But don’t crow about it to your old employer. It’s just conceivable that they might apply to the tribunal to review the remedy decision on the basis that there’s new evidence available that should change the award. They’d probably fail, but best not to risk it.

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If you’re an employment lawyer and you haven’t got your copy yet, you can do FRU a small favour (about 5% of the purchase price) by ordering it here.