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Make sure you’re answering the real point

File this under advice that sounds like the bloody obvious, but can be surprisingly hard to follow.

During litigation, the other side will make all sorts of arguments. Generally, you’ll be predisposed to dismiss them as dishonest, daft or just mad. That’s a natural response to the adversarial nature of tribunal litigation — even if you’re a supposedly cool and emotionally-detached lawyer.

The trouble is that this means it’s all too easy to misunderstand what your opponent is saying, either because subconsciously you want to make it easier to dismiss or just because you reject it out of hand rather than thinking about it properly.

But you need to fully understand the points that the other side is making, so that you can counter them effectively. So you must do your best to overcome your first instincts.

Probably the most important part of doing this is simply to recognise the possibility.

But one other trick is, when you get an important document from the other side (such as the ET3 or a Notice of Appeal) read it three times. First just to see what it says. Then read it as sympathetically you can. Try to imagine that you’re someone who wants to agree with the Respondent. How would you understand what they’re saying? Finally, read it critically, with an eye to how you’ll respond to their arguments.

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Don’t conciliate too early

Before starting most kinds of proceedings in the employment tribunal, you have to notify ACAS of your potential claim and go through ‘early conciliation.’ Section 18A(1) of the Employment Tribunals Act 1996 says:

Before a person (“the prospective claimant”) presents an application to institute relevant proceedings relating to any matter, the prospective claimant must provide to ACAS prescribed information, in the prescribed manner, about that matter.

The information you have to provide to ACAS is minimal: your name and contact details, your employer’s name and contact details, your dates of employment, and the date on which the event you want to complain about took place.

You don’t have to say what kind of claim you are thinking of making to the employment tribunal. That’s deliberate. Previous rules that said you had to raise a grievance before complaining to a tribunal got bogged down in endless arguments about whether the exact claim that the claimant had brought to the ET had been made the subject of a previous grievance. The ‘early conciliation’ regime is supposed to avoid all that, by just making you notify ACAS of a potential claim without identifying it.

But there are still some potential problem areas. One relates to ‘matters’ that only arise after you have sent in an early conciliation form. Suppose you complain about discrimination, and start early conciliation; and then you suffer victimisation because of the complaint. Can you complain to a tribunal about the original discrimination and the later victimisation without notifying ACAS again? Probably not. Until and unless the EAT says it’s not necessary, go through early conciliation again to be on the safe side.

If you’re thinking of complaining of constructive dismissal, bear in mind that there’s no ‘dismissal’ until you’ve resigned. So don’t contact ACAS until after that point. If you’ve given notice, wait until your notice period has run its course and you’ve actually finished work. Otherwise the tribunal may say it doesn’t have jurisdiction to hear your complaint because the ‘matter’ you are complaining about is dismissal, and you can’t have presented information to ACAS about ‘that matter’ as required by section 18A at a time when you hadn’t been dismissed.

If you have a current claim, and you notified ACAS before you resigned, you can do one of two things. You can carry on and hope for the best: the tribunal may accept that the ‘matter’ in question was whatever your employer did that prompted your resignation. Or, if you’re still in time for a fresh claim (in other words, if it’s less than 3 months since your employment ended), you can withdraw your claim, go through early conciliation again; and then present a fresh claim. If you decide to withdraw your claim, it’s important to make sure the tribunal doesn’t issue a judgment dismissing it: if it does, you won’t be able to bring a fresh claim. So your letter telling the tribunal you want to withdraw the claim should explain that you want to commence the same claim again after going through Early Conciliation, and asking the tribunal to exercise its discretion under rule 52 not to dismiss your original claim.

The choice isn’t an entirely easy one. If you decide to carry on and hope for the best, you may lose your claim on a technicality; but if you withdraw and start again, then (unless you’re entitled to remission) you’ll have to pay another issue fee.

If it’s more than 3 months since the end of your employment, but you started early conciliation before you resigned, you’re not in a position to commence a fresh claim. You’ll have to carry on and hope for the best. Don’t despair: this is a problem that might defeat your claim, not one that necessarily will.

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Try for re-employment

Everyone who has anything to do with employment law knows that reinstatement and re-engagement orders are incredibly difficult to get. They’re rare (really, really rare: awarded in something like 0.01% of successful claims) so mostly people don’t even bother asking. That means that even in cases where a tribunal might have made such an order, it doesn’t – because the claimant hasn’t asked.

But if you’ve been unfairly dismissed, you have lost your job when you shouldn’t have. It’s obvious that the best way of making that right is to give you your job back.

So if you win your unfair dismissal case, ask for reinstatement or re-engagement. Put the rarity of such orders out of your mind, and concentrate on the obvious justice of giving you your job back if you shouldn’t have been sacked in the first place.

This became more important with the reduction of the cap on unfair dismissal compensation to a year’s pay. If you’ve lost a modestly-paid job in circumstances that mean you’re going to lose a lot more than that (Michael gives an example of how this can happen here), reinstatement or re-engagement is the only way you can head off those losses. You could point that out when asking for reinstatement or re-engagement.

See earlier posts on re-employment here.

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Upcoming changes to fee remission

I’ve just had an email from the Ministry of Justice, promising changes on fee remission from 30th June. I can’t find an announcement online, so I’m providing the text of the email below:

From 30 June, you will see a difference to the HM Courts & Tribunals Service fee remissions form and guidance. Having listened to the feedback from customers and stakeholders, these changes will simplify the application process for users. The main changes you should be aware of, for any fee remission applications from 30 June are:

  • You no longer need to provide original copies of documents. We will accept photocopies.
  • You don’t have to tell us the exact amount of disposable capital you have just the relevant threshold it falls into.
  • Bank statements can be printed copies from online banking systems.
  • DWP letters can now be dated within the last three months. Previously, a letter from DWP confirming receipt of benefits for benefits-related remissions (fee remission 1) had to be dated within the last month.
  • A clearer, simplified form is now at the front of the guidance, with references to guidance notes.
  • If a piece of information is missing we will endeavour to contact you rather than reject the claim.
  • The new form should be used from 30 June. From 14 July you should no longer submit applications using the old EX160 form.

We continue to review the remissions system to make it easier and quicker to move through the system. We welcome any feedback to help us further simplify the process. Contact either: EmploymentJurisdictionalSupportTeamInbox@hmcts.gsi.gov.uk for Employment Tribunals orCivil&FamilyBusinessSupport@hmcts.gsi.gov.uk for civil and family.

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I am (I represent) the Claimant…

It’s easily overlooked, but, when writing to the tribunal, it’s worth making it clear which side you’re on.

This can easily be done by starting your letter:

Case No: 123456/2014 Reed v Cunningham

I act for the Claimant in the above case. I write to apply for…

This is particularly sensible if you’re a representative, since it will be far less obvious that Smith & Jones LLP is acting for Mr Reed than it would be if Mr Reed was writing as a litigant in person.

There is a wider point here. It’s always worth remembering that applications are dealt with by busy judges who are working through a pile of applications. Of course, the judge can almost certainly work out which side you’re on by the nature of the application (and if that fails they can search the file until they find when you went on record). But it’s worth making their lives a little bit easier if you can — if only because it might make them read your application a little more sympathetically.

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The media

The vast majority of employment tribunal cases don’t attract any media attention.

The ones that do, tend to involve some sort of media friendly hook: salacious facts, the involvement of celebrities, a link to a current news preoccupation or a really significant impact on a large number of other people.

If your case doesn’t involve on of these elements it probably won’t be seen as newsworthy and any attempt to interest the press will almost certainly fail.

People sometimes want to involve or interest the media because they hope that doing so will shame their employer into settling the case. This can work, but often doesn’t. Partly because of the difficulty of getting the media interested in the first place — but also because media interest doesn’t necessarily make respondents settle. If the glare of publicity does fall on them they may feel they have to win the case in order to clear themselves or they may just become so angry that it interferes with negotiations.

People sometimes also want to involve the media for more altruistic reasons. For example, to highlight serious wrongdoing in a whistleblowing case or to expose sexism in a discrimination case. For individuals or organisations with a wider interest than the simple outcome of the case, this can be an important element of their work.

But it is worth bearing in mind that the media will have its own agenda and will not necessarily see your case the way that you do. Once they’re involved its very difficult to influence how they will report the case or what impact it will have on proceedings. Influencing the media is a difficult job — look how often it goes wrong for people who spend their whole careers trying. Think carefully about whether you have the skills and contacts to do it. And whether you can take the time and effort from managing your tribunal claim.

If the press do become interested in your case, it’s worth remembering that you don’t have to talk to them if you don’t want. In most cases, a polite ‘I’m sorry, but I don’t wish to comment’ will be sufficient.

P.S. It’s only a few days until I try to run 26.2 miles on behalf of FRU. If you’d like to sponsor me, you can do so at www.justgiving.com/Reed14

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Observe a hearing

If you’re suing your employer in the employment tribunal, it’s sensible to observe one or two hearings first, so that you have some idea what to expect when the date for your hearing arrives.

This can be a moderately intimidating thing in itself. Most tribunal hearings are public: you’re entitled to wander in at any time during the hearing day, stay for as long as you like, and leave again when it suits you. But they don’t necessarily feel terribly public. They’re certainly not public like a railway station is public. When you arrive, you may well have your bag searched and have a metal detector passed over you. You’ll be expected to sign in at reception, and a clerk may approach you to find out who you are and what case you’re there for. Tribunal staff may give you the feeling that letting you observe a hearing is a bit of a favour.

It’s not: it’s your right. You’re entitled to be there just as a member of the public; you don’t need any special reason to be there, and you don’t need to tell anyone what your reason is if you don’t feel like it. You may be a law student. You may be a psychology student conducting some kind of observational research. You may be a party or a witness in a future case. You may be a tourist with an eccentric taste in sight-seeing. You may the the proud grannie of counsel for the respondent. You may just want to get in out of the wet. It’s no-one’s business but yours which of these categories you fall into.

If you’re there to observe a case so you know what to expect in yours, don’t feel that you’re committed to any particular case once you’re there. You can sample a few, and stay longer once you’ve found one that seems vaguely like yours. Enter and leave quietly. If you’re asked who you are, there should be no need to give any explanation beyond the fact that you’re there as an observer.

If you know that your employer is legally represented it’s probably a good idea to try and see part of a case where a lawyer is cross-examining a claimant. If you find yourself listening to learned argument between lawyers about whether or not the Part Time Workers Regulations properly implement the Directive, and your case is just unfair dismissal, it’s probably not worth staying to listen.

Some hearings are private: it should be clearly marked on the door of the hearing room if that’s the case – but if not, and you wander into a private hearing by accident, it’s not a disaster. You’ll just be asked to leave.

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Run, Reed, run

It’s that time of the year again and, in six days, I’ll be running the London marathon on behalf of the Free Representation Unit.

If you’d like to sponsor me (and I’d be very grateful) you can do so through justgiving: www.justgiving.com/Reed14

I always feel a bit sheepish asking people to send me money to do something that I rather enjoy (at least, I enjoy the first 15 miles or so — and I enjoy finishing). But FRU is a good cause and running marathons is a socially acceptable mechanism for asking people to give you money for a good cause.

What does FRU do? We represent people in Social Security and Employment Tribunals. Most of the work is done by student volunteers, supervised by Legal Officers (including myself). Together we do about 800 cases a year, which makes us one of the largest provides of pro bono representation in the UK.

Anything you’d be happy to give would be very welcome. It’ll be spent on paying our rent, keeping the lights on and providing the resources the volunteers need to run cases.

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Add tribunal fees to your claim

If you win your case in the employment tribunal, you should ask for an award of costs to cover any tribunal fees you’ve had to pay. There’s a general post about how to do that here. This is just a small additional suggestion on the same subject.

Include your application for costs in your claim.

That’s it, really. Section 9.2 of the ET1 form asks ‘What compensation or remedy are you seeking?’ Claimants don’t often write very much there – and it won’t be your last chance to say how much money you think you should be awarded, and why. But it’s a good idea to use that space to set out the main kinds of loss you think you ought to be compensated for – and at the same time, it’s worth mentioning that you’ll be looking for a costs order under 76(4) to cover your tribunal fees. It’ll help you to remember to claim it at the end of the case; and if your employer doesn’t defend the claim and you get a default judgment, it should prompt the tribunal to include a costs order in that.

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Is the tribunal system corrupt?

No.

Between us we’ve got several decades of experience in employment tribunals. We’ve seen nothing to suggest there is any type of corruption or systematic wrongdoing going on.

But many people who go through the system are left deeply unhappy and with the sense that it has failed them. Some conclude that it is corrupt. It seemed worth addressing this explicitly — and explaining what we mean when we say the tribunal isn’t corrupt.

At the most basic level, you can’t bribe an employment judge. Admittedly we’ve never heard of anyone trying. Yet we’re absolutely sure anyone who did would be immediately reported to the police by the outraged judge.

Similarly, with extremely rare exceptions, judges don’t sit on cases where they have a personal interest or might reasonably be thought to have a personal interest. If they do, there will be grounds for appeal. There are no smoke-filled back-rooms where favours are exchanged or arms twisted.

We also don’t think that there’s any general prejudice against claimants (or for that matter respondents).

Employment Judges are doing what they claim to be doing: trying to decide each case fairly. More than that, the vast majority are highly-competent, dedicated professionals who work hard at a difficult and stressful job.

This doesn’t mean that the system is perfect, or anything like it. It often fails and often causes genuine injustice.

The tribunal has to apply the the law and procedure it is given. The law is imperfect — sometimes simply unfair — so applying it does lead to injustice.

And judges aren’t perfect. They are flawed people like the rest of us. Which means they can lose their temper when they shouldn’t; miss the point or otherwise fall short of the ideal. When this happens, it can lead to unfair results.

And – like everyone else on the planet – judges have their own assumptions and inherent preferences. Some do have an instinctive preference for the authority figure in the case. (Lots of people do; read about the Milgram experiment, and wonder if you’d have passed the test.) Others have an anti-authoritarian streak. Some get reputations; employment lawyers often describe judges as ‘pro-claimant’ or ‘pro-respondent.’ Broadly speaking, those reputations are deserved. But this doesn’t mean that the judges aren’t doing their best to decide each case fairly, according to their lights; it’s just that their lights can vary. When we say that a judge is ‘pro-claimant’ we don’t mean that they’re bound to find in favour of the employee whatever the circumstances. We mean they’re a bit more sympathetic, a bit more likely to come down on that side rather than the other. Most cases will end with the same result, regardless of the judge.

Beyond the inevitable individual kinks of the judiciary, any legal system simply has its limits. There is no perfect system that will always get the right result.

In every case, tribunals hear evidence, consider submissions and try to reach the right decision. This isn’t easy. When they start hearing a case, tribunals know nothing about the parties and have no knowledge of the relevant events. All they know is what they’re told in the tribunal room. And tribunals have no magic powers to detect honesty. Cross-examination can illuminate the truth, but it can also obscure it. All lawyers have had cases where a witness they believed to be basically honest fell apart and was made to look thoroughly shifty under cross-examination, because they got confused or brow-beaten.

This problem is made worse by unfairnesses and imbalances within society. In an ideal world, everyone who came before the tribunal would be competently represented and have much the same resources, not only in terms of money, but also intelligence, education, language and confidence. In the real world, some parties can afford lawyers, and some can’t; some parties are clever, articulate, able to present their case, and some aren’t; some have the confidence to tell the truth, warts and all – and thus gain the tribunal’s respect; some feel so powerless and backed into a corner that telling the tribunal what they think it wants to hear seems like the only option. Tribunals are not unaware of these issues; they do their best to see past them. But all the same, all too often the parties are not on an equal footing. In the context of employment this normally means the employee is disadvantaged.

In these circumstances, tribunals can’t always get the answer right. We think they’re right significantly more often they’re wrong (at least in the sense of reaching the conclusion the law requires). But this is of limited consolation if you’re in the 20% or so of cases where they simply get the wrong result.

Any justice system is imperfect and the employment tribunal is no exception. But being less than perfect isn’t the same as being corrupt.

Finally, it’s worth saying that, despite its imperfections, the tribunal also does a lot of good. Claimants do win their cases and receive their compensation. More than that, the existence of the tribunal and its ability to hold employers to account does have a wider impact on employment relationships. Many employers act a little better (or at least a little more lawfully) because of the implicit pressure of their employee’s ability to enforce their legal rights.