Many of our loyal readers have probably been wondering “What can we do for Naomi and Michael this Christmas?”
The answer to this seemingly tricky question is actually straightforward. You can do some of your last-minute Christmas gifts through Amazon
The format of a lot of advocacy, both written and oral, is to propose a conclusion and provide evidence or explanation to support that conclusion.
So, for example, you might write:
Ms Jones was unfairly dismissed. Mr Smith, who investigated the alleged misconduct did not carry out a proper investigation. He failed to speak to Ms Sampson or Mr Plummer, who would have told him that Ms Jones was with them, in the back office, when the incident took place. Mr Smith also failed to examine the relevant CCTV footage, which would have confirmed Ms Jones’ account.
Here, the conclusion is that Ms Jones was unfairly dismissed. The explanation is the detail relating to the shortcomings of Mr Smith’s investigation.
In the example above, the conclusion comes first and then the explanation follows. It could equally be written with the explanation first.
Mr Smith, who investigated the alleged misconduct did not carry out a proper investigation. He failed to speak to Ms Sampson or Mr Plummer, who would have told him that Ms Jones was with them, in the back office, when the incident took place. Mr Smith also failed to examine the relevant CCTV footage, which would have confirmed Ms Jones’ account. These failures mean that Ms Jones’ dismissal was unfair.
Whether you should lead with the conclusion or the support for it will depend on the situation. Sometimes it will be best to set out what you are going to try to prove, so that the tribunal can see the point of what you are saying. Other times, it will be best to prepare the ground by putting the evidence first. Or your conclusion may not make sense until some other matters are explained.
Quite often, it will just not matter.
Do avoid, however, trying to put a conclusion in the middle of your argument.
Mr Smith, who investigated the alleged misconduct did not carry out a proper investigation. He failed to speak to Ms Sampson or Mr Plummer, who would have told him that Ms Jones was with them, in the back office, when the incident took place. Ms Jones’ dismissal was therefore unfair. Mr Smith also failed to examine the relevant CCTV footage, which would have confirmed Ms Jones’ account.
This is just confusing. The conclusion gets lost in a muddle of other points. It also become difficult to see what the CCTV point is about. Is it more evidence of a bad investigation? Or is it a new, and separate point?
Regular readers of this blog will know that we are both mildly obsessive on the subject of bundles. I’ve recently collected another simple but effective way of sabotaging the bundle:
Bind it in a way that makes it impossible to insert extra pages – a spiral binding or similar will do the job.
Let’s hope no-one ever does this on purpose imagining that they are being cunning – because it’s certainly not going to stop the tribunal accepting additional documents that weren’t in the original hearing bundle. It’ll just mean that when they do, everyone ends up with stray bits of paper floating around their desk in no particular order, getting in the way or getting lost.
It’s much more sensible to do the usual thing and present bundles in ring binders or lever arch files. Then any extra pages can be inserted in their chronological place in the bundle, and given numbers that correspond with where they’ve ended up: e.g. 2 extra pages between 71 and 72 can be numbered 71a and 71b.
It has long been normal practice in the employment tribunals to have witnesses read their statements aloud.
On the face of things, this is a bit odd. There are times where it is necessary or desirable; one of the parties not being able to read, or not being able to read English, is an obvious example. But employment judges and tribunal members can all read – so mostly it just takes up time to no very useful purpose.
The EAT has now considered this practice in Mehta v Child Support Agency, and given fairly detailed guidance which can be summarised as follows:
(1) There’s no rule that statements have to be read aloud, and doing so will often be a waste of time.
(2) It will sometimes be desirable to have some or all of a statement read aloud, especially the statement of an unrepresented claimant. Reasons for this may include: to enable claimants to feel they have had their say; to amplify or explain a confused or inadequate statement; to explain very technical material; to allow the witness to settle before facing cross-examination.
(3) It doesn’t have to be all or nothing: it is permissible to have some parts of some statements read aloud.
(4) Deciding what to do about this is a matter for the tribunal in the exercise of its case management powers.
(5) In making these decisions, tribunals should proceed where possible by agreement. Where they have to impose a decision about which parts of which statements are to be read aloud, they should be careful to explain what they are doing so as to dispel any impression that the parties are being treated differently.
(6) Hearings have to be in public, so if a statement is taken as read, copies must be made available to members of the public attending the hearing.
It is possible that this will cause a significant change in tribunal practice. Until now, if anyone has wanted to take some or all statements as read, they’ve had to make a case for it. That would often meet with pretty stiff opposition from the tribunal – albeit not necessarily amounting to much more than ‘That’s not how we do things.’
Mehta may change that so that from now on, parties who wish to have some or all of their statements read aloud will have to persuade the tribunal that it’s a good use of time.