‘Hearsay’ is a technical term. It’s one of those things that tribunals sometimes assume everyone understands, when in fact few non-lawyers do.

It’s not very difficult, though.

All hearsay evidence is evidence a witness gives about what someone else said. But evidence isn’t hearsay just because it’s evidence about what someone said. It’s only hearsay if the point of giving it is not to persuade the tribunal that someone else said something, but to persuade them that what someone else said was true. So you can run a simple test on any piece of evidence about what someone said: ‘Does the witness want the tribunal to believe that what was said was true?’ If the answer is yes, it’s hearsay; otherwise not.

Examples

Suppose you tell the tribunal that Alison told you before your disciplinary hearing that she’d already been asked to draft an advert for your job. Why are you telling them this? Because you want them to accept that Alison had been asked to draft an advert for your job before the decision had officially been made to dismiss you. But the best person to tell them about that is Alison, not you. Your evidence is hearsay.

Now suppose you tell the tribunal that your manager said you were a useless wanker. This time you’re not trying to persuade them that what your manager said was true – you’re not giving this as evidence that you are a useless wanker. You’re just trying to persuade them that your manager insulted you. So although your evidence is about what you heard someone say, it’s not hearsay. (Of course, if you tell the tribunal that Alison told you that your manager told her that you were a useless wanker, that is hearsay.)

Why does it matter?

It doesn’t much, actually. Employment tribunals can hear whatever evidence they please, and there are no technical rules about hearsay, though they will probably place less reliance on hearsay than on direct evidence. But it’s a term you may hear, so it’s as well to understand what’s being talked about if you do.

In a complicated case, it’s worth saving all the statements on your side (and the other side too, if you have them in a suitable format) as a single continuous document. That way, if you know someone has said something about a particular subject, but you can’t remember who said it, or exactly where in their statement, you have a single document that you can search electronically (ctrl+F on a PC). This is useful while you’re preparing the case – and at the hearing too, if you have a laptop with you.

Clerks are the people at the tribunal who handle the administration on the day of the hearing: they take your name when you arrive, collect bundles and witness statements for the tribunal and the witness table, ask whether you want to affirm when you give your evidence, or swear on a holy book, take you to your tribunal room when the tribunal is ready to begin, and so on. They aren’t lawyers, so you can’t expect them to give you legal advice – but they will have a lot of practical information about how the tribunal works, and mostly they are pleasant and helpful. You can ask them, for instance, if you need to pass a message through to the employment judge – for instance to ask for more time to finish negotiating; or if you need to know where the nearest print shop is (they won’t be allowed to do photocopying for you unless told to by an employment judge); or whether the other side has arrived at the tribunal yet; or to find out if there’s a room you can use to meet with the other side for negotiations.

First thing in the morning, until about 10 am, there will be a clerk on the reception desk at most tribunals. At other times, if they are not around, you can probably contact them using the telephone on the reception desk – there will be instructions on or near it about which extension to call.

The opposite of ‘unfair’ is ‘fair’. Not ‘not unfair’.

So write “The Respondent has not shown a fair reason for the dismissal”, rather than “The Respondent has not shown a not unfair reason for dismissal”.

Double negatives aren’t necessarily sinful, but they should not be used without care.

When you think you must have seen all the ways there are to make a bundle inconvenient and annoying to use… along comes a new one.

A tabbed divider card between each document and the next is annoying – because it fattens up the bundle to no purpose, and obscures the sticky-notes that you want to use to mark the most important documents. But normally it’s not much of a problem – all you have to do is remove the divider cards, and you have a usable bundle.

But the advanced bundle-saboteur has thought of this. He’s re-started the pagination at 1 for each tab. Now to identify any page, you need two numbers: the tab number and the page number. So if you take out the annoying divider cards, you can’t navigate the bundle at all. Neat, isn’t it?

Getting familiar with the hearing bundle is one of the most important things you have to do when preparing to represent a client (or yourself) in the employment tribunal.

To do this efficiently, you need to have a range of different reading speeds. Some (often most) of the papers in the bundle will be completely irrelevant to anything you have to argue about, and you can skip over them very fast. Often there will be a few pages that are absolutely key – and by the end of the case, you will have pored over them for hours, decorating them with highlighters and cross-referencing them to other documents. Other pages will have a significant line or two, but mostly not be very interesting.

What this means is that you need to read some documents carefully; skim-read others; and – at any rate on your first pass through the bundle – just note that others are there without reading them at all.

A related point is that you need different reading speeds for different stages of preparation. If the case is new to you, you will probably want to start with the ET1 and the ET3 to find out what the case is all about; then read the witness statements for a bit more detail; and then go through the bundle. But this first read through of everything will probably be quite fast: the pleadings and statements are important, and you are going to have to get to know them well before the end: but at this stage, you just don’t know what the case is about, so you can’t tell which bits to focus on. So don’t read everything as if your life depended on it: just get the big picture. You can fill in the detail later.

Often, while writing, you will leave gaps to fill in later.

It is useful to have a standard bit of text, such as ‘xxx’ to use as a placeholder. Every time you leave a gap, use a placeholder to mark it. Then you can use the ‘find’ or search function to quickly locate the gaps.

This has two useful functions. Firstly, you can quickly find out what you have left to do. Secondly, when you think you are finished, you can check that there is nothing left undone.

Sometimes you really have to complain to the tribunal about how the other side has behaved – in order to ask for costs, for instance, or to explain your inability to do something you are supposed to have done. But don’t be too trigger-happy, especially about minor things. There are a lot of pit-falls in litigation, and you may find yourself in need of the tribunal’s or the other side’s indulgence at some point. If you’ve thrown a hissy fit every time the respondent has done anything a little bit late, or vaguely careless or annoying, you’ll find them much less sympathetic when it’s you having difficulty complying with a deadline or getting your witnesses to the tribunal at the right time.

This is a particular instance, of course, of the general rule about only fighting the battles you actually need to fight in order to win the case.

The eighth edition of Tamara Lewis’ Employment Law: An Advisors Handbook has been published by Legal Action Group. It remains the best single volume guide to employment law and both of us keep a copy to hand.

It’s available from most legal book shops, direct from LAG or from Amazon. If you follow the link below, about 5% of the purchase price will be donated to the Free Representation Unit.

We are working on the manuscript of the third edition of the book, which should be available in legal bookshops and from the publisher in late December.

The second edition is now out of print, and we’ve noticed that second hand copies seem to have changed hands on the Internet for over £100. If you can wait about another 9 weeks, you can have a brand new 3rd edition for a much more reasonable £35. You can pre-order from Amazon using the link on the right hand side of this page.