You start with a set of facts that are capable of supporting a claim. For example, you did not get a promotion, because your employer is prejudiced against women. This is less favourable treatment because of your gender, which is the basis for a direct sex discrimination claim.

The tribunal claim is created at the point that you submit an ET1 containing the allegation of discrimination. Until this happens you have not brought a claim.

The only way of creating a claim is to include it in an ET1 (although this can be done by amending the ET1 later, if the tribunal gives permission).

This is important because without a claim in existence the tribunal cannot find in your favour. They cannot decide the claim at all; there is nothing to decide.

Put like this, it sounds obvious. But it is fairly common for people to try to rely on allegations in grievance letters, inter-parties correspondence or witness statements to found a claim. This does not work; if you want the tribunal to decide something, it must be in the ET1.

This does not mean, however, that every fact you want to mention in the tribunal must be in your ET1. The basis of your claim (i.e. that your manager is a male chauvinist who didn’t promote you) must be there, but you don’t need to include every patronising remark he made over the last two years. Much of that detailed material will be brought in at the witness statement stage.

I recently had a mildly unsettling experience at the Employment Appeal Tribunal.

When the clerk called me in he mentioned that HHJ McMullen QC followed the old tradition of a relaxed dress code in hearings during August, so if I wanted to take my jacket off I could. (This tradition is new to me, but I assume it stems from the fact that, in The Good Old Days, courts used to shut down in August.)

This might not sound particularly disturbing news, but minutes before a hearing is due to start, it’s the sort of thing that can grab a larger share of your attention than it deserves. “Is it really appropriate to take my jacket off? Will it look too informal? But if I don’t will the Judge think I’m a prat?”

I decided that the room was rather warm; that the clerk was in his shirt-sleeves and that I could hardly get in real trouble for following a suggestion made by the Judge.

So I took my jacket off. The judge was also without a jacket. So far as I can tell, it made no difference whatsoever to the hearing or the result.

The point of this post is two-fold.

First, if you have a hearing in the EAT in August in front of HHJ McMullen, be warned that you too may have to resolve the perplexing jacket dilemma.

Second, I think it’s worth saying that almost everyone suffers these weird social wobbles from time to time. High stress, unfamiliar or hierarchical environments are particularly likely to push us off balance. It almost never matters and other people hardly ever notice – with the clarity of hindsight I can see that HHJ McMullen couldn’t possibly have cared less whether I was wearing a jacket or not.

Legal writing generally involves discussing authority, in the form of case-law or statutes. To make this easier, lawyers have developed a system of citation — a shorthand system for identifying authorities.

So we write ‘Miles v Gilbank [2006] ICR 1297′ rather than ‘the case of Ms Miles against Ms Gilbank reported in the 2006 volume of the Industrial Cases Reports at page 1297.’ The shorthand is briefer and clearer than the long form.

The basics of case citation are straightforward. Even if you have never encountered it before, you probably know 95% of what you need from the example above. The name of the case (conventionally in italics) is followed by the year it was reported (in square brackets) then the standard abbreviation of the law report it was reported in and finally the page number.

There are, however, all sorts of complexities. How does one refer to an Advocates General’s Opinion in a European Court of Justice case? What is the proper way of providing a ‘pinpoint’ citation (a reference to a particular page or paragraph in a case)?

Similarly, references to legislation are generally straightforward. We refer to the Employment Rights Act enacted in 1996 as the Employment Rights Act 1996. But how should one reference a rule in the Civil Procedure Rules or pre-1972 European Union legislation (which did not have an official English translation)?

To answer that sort of question, we need a formal system of citation. For UK lawyers, this is the Oxford Standard for the Citation of Authorities. This sets out a set of rules for how to cite any authority you are likely to refer to.

Nothing even mildly awful will happen to you if you don’t follow the Oxford Standard. Many Judges and lawyers do not. They manage perfectly well with a mixture of habit and common sense. And, even if you don’t use a citation system at all, provided the tribunal can work out what case you are talking about, it will make no real difference. These are all points of detail.

But the OSCOLA is useful for two reasons. First, it provides a consistent and well known system. If you follow it, you will use the same approach on page 57 of your skeleton argument that you did in your notice of appeal. That approach will be one that the tribunal will be familiar with and will therefore find easy to understand. Second, it allows you to delegate something quite hard. The authors of the Oxford Standard have spent a long time working out a good legal citation method, so you don’t have to.

OSCOLA, however, is primarily designed for academic lawyers, rather than practitioners. In general, this makes no difference. But there are a few points where you may wish to diverge from it.

Where to put the citation

The Oxford Standard provides a simple answer to this:

OSCOLA is a footnote style: all citations appear in footnotes. OSCOLA does not use endnotes or in-text citations.

Outside of blog posts and letters, I put all citations in footnotes. But many lawyers do use in-text citations (in fact, they are probably somewhat more common than footnotes). I think footnotes are better. They keep the reference out of the way, but easily accessible. But if you prefer in-text citation you will be in good company.

Neutral citations and the ‘best report’

The Oxford Standard includes the neutral citation for a case and requires that you use the ‘best report.’

The neutral citation is a reference, set by the court, that identifies each case by reference to the year of judgment, the relevant court and the judgment. It is neutral, in that it does not refer to any particular set of law reports.

The concept of ‘best citation’ arises from the unofficial hierarchy of law reports. At the top are the Law Reports, produced by the Incorporated Council of Law Reporting. They include the arguments made to the court as well as the judgment, and both the lawyers and the judge see the report before it is published to confirm its accuracy. Partly for these reasons, and partly out of tradition, they are regarded as the senior reports. Below them are the All England Law Reports and the Weekly Law Reports. And then the specialist reports, such as those relating to employment cases. Finally, there are the condensed reports, which contain a summary of the decision, such as the Times Law Reports.

I, in common with most employment practitioners, ignore both of these rules. During litigation, copies of the relevant cases will be provided by the parties. So there is no need for a neutral citation. Also, like many employment practitioners, I have easy access to the Industrial Cases Reports and the Industrial Relations Law Reports. Getting the other law reports means a trip to a library. Even if I did have the other reports at my fingertips, others involved in a case might not. So it is easier to stick to the specialist reports.

It is conventional to cite the Industrial Cases Reports in preference to the Industrial Relations Law Reports where a case is available in both. I follow this rule, but it is not worth worrying about if it is easier to get the IRLRs.

SI Numbers

The Oxford Standard includes the SI number when referring to statutory instruments. For example, ‘National Minimum Wage Regulations 1999 SI 1999/584.’

I don’t, because, like the neutral citation, it is unnecessary in litigation. Legislation is either in Butterworths or a copy is provided by one of the parties.

Latin Gadgets

The Oxford Standard advises against ‘gadgets’, the fragments of latin used in academic footnotes.

They make an exception for ‘ibid’, which means ibidem, which means ‘in the same place’. It can be used to repeat the immediately previous citation. So, if a footnote reads ‘Marks and Spencer v Williams-Ryan [2005] ICR 1293,’ and I wanted to refer to a particular page of that case in the next footnote I could write ‘ibid 1306′ rather than writing the full reference.

I don’t like ‘ibid,’ because it strikes me as either fussy or unclear. If it is obvious that I am still writing about the same case, I simply write ’1306′ or possibly ‘p1306.’ If I’m concerned that it might not be obvious, it’s better to repeat the reference in full to avoid any confusion.

They also make an acception for ‘cf’, meaning confer, meaning compare. I’ve never encountered a situation in practice where it would be sensible to use this.

Paragraph numbers and the pilcrow

The previous points arise primarily from the difference between academic writing and writing in the context of litigation. But this final point is purely personal preference.

The Oxford Standard cites paragraphs in two different ways.

In pinpoint citations, it used square brackets, for example, Hussain v Acorn Independent College Ltd [2011] IRLR 463 [31]-[32]. Elsewhere, for example, where referring to an article or book, it uses the abbreviation ‘para’, for example, ‘Naomi Cunningham and Michael Reed, Employment Tribunal Claims: Tactics and Precedents (3rd edition, Legal Action Group 2010), para 8.43.’

I find this inconsistent and I don’t like either method. Using square brackets for both the year and the paragraph looks odd to me, and the use of two sets of square brackets to show a range of paragraphs looks ugly. ‘Para’ is fairly unobjectionable, but takes up too much room.

In any event, I think there is a better way — the pilcrow (¶) — a convenient typographical character used, among other things, to indicate a reference to a paragraph. So I would write Hussain v Acorn Independent College Ltd [2011] IRLR 463 ¶31-32. This, to my eye, looks better and it’s shorter (6 characters, compared with 9 using either square brackets or ‘para’).

I suspect one of the reasons that the pilcrow is not used is that people don’t know how to produce one on their wordprocessors. If you are using a mac, the keyboard shortcut is alt-7; if you are using windows, it is alt + 0182.

Salespeople have a concept called the elevator pitch.

This is the pitch you would use if you find yourself in a lift with the Head Honcho of your potential customer. So you have 60 seconds or so. You have to make your case – what you’re selling and why they should buy it – as simply and clearly as possible.

The idea is not that you are likely to be riding an elevator with the CEO. It’s to strip what you have to say down to the essentials, so that you have a clear idea of just what your point is.

This is a useful exercise when preparing for a tribunal case.

Lawyers can tend towards hyperbole on this; saying things like “Every case has only one point in it”. This is an exaggeration. But almost all cases can be summed up shortly and simply.

For example:

I wasn’t given a promotion, because I was a woman. That’s sex discrimination.

I was sacked because they said I’d stolen stock. They based that on the fact that some stock was missing from my area. But, if they’d checked with other areas, they’d have realised that everyone has stock control issues. Actually, my stock control was better than most. So my dismissal was unfair.

My collegues made homophobic jokes in emails they sent to all employees. As a gay man I found this very unpleasant. So I have suffered sexual orientation harassment.

All of these cases would need considerable elaboration to succeed or even for an ET1 to be drafted. But the core point is simple. And it’s worth having a clear idea of what that simple, core point is – so that you can focus on what is important.

For the avoidance of any possible doubt, if you should find yourself in a lift with a member of your tribunal, do not ‘pitch’ them on your case. Just nod politely and, if conversation is absolutely necessary, talk about the weather.

When people decide to become lawyers they generally realise that it’s not always an easy job. In particular, they realise that it will be intellectually hard work (you have to do some difficult thinking sometimes) and mildly physically demanding (you work long hours and have to carry a lot of papers around).

What is sometimes underestimated is that it is also emotionally hard work. You meet upset people, deal with confrontation, stand between your client and an angry judge, not to mention back your judgment when you’re afraid you may be wrong.

This is one of those posts which identifies a problem without offering to solve it.

But it might be worth saying that emotional stress is a normal part of the job. If you feel scared, alone and inadequate from time to time, remember that everyone has felt the same (including those people who you can’t possibly imagine feeling like that).

From time to time the other side will interrupt you during your cross-examination or submissions.

Not all interruptions are unhelpful. One common reason for interrupting is to indicate that the line that is being argued is not contested. If your opponent breaks in to say “We agree that if X then Y” he is trying to be helpful and save everyone some time. Just say “Thank you” and move on.

Some interruptions are unhelpful, normally because your opponent is objecting to what you are doing. The classic example of this is an objection to a question during cross-examination. For example, the other side might break in to say that you are asking about privileged information and that the witness should not have to answer.

Some interruptions are actively hostile, in that they are intended not to raise a valid point, but to trip you up and make your life difficult. The same effect can be produced unintentionally if the other side doesn’t know what they are doing, and so raises pointless issues.

If you are interrupted, the first thing to do is to stop speaking. Don’t try to talk over the interruption. It will not work and will make you look bad. Be particularly careful during cross-examination. Don’t give the impression that you are trying to get an answer before the tribunal can respond. This works in American legal dramas, but not real life.

The Judge will listen to the objection and then either dismiss it or give you a chance to have your say before making a decision. You might realise, once you hear the objection, that your opponent was right and you have misstepped. If so, apologise (with as much grace as you can muster) and move on. If not, explain, preferably briefly, why your opponent is wrong.

Dealing with frequent hostile objections can be difficult. Even if they are quickly dismissed they are off putting and disruptive. Really it is a job for the Judge. One reason for going quiet as soon as an interruption is made is to draw attention to it and to try to seize the moral high ground.

If the tribunal does not step in, it is usually best to press on, rather than asking the tribunal to intervene. The difficulty is that, if the tribunal has not intervened, they probably either think the interruptions are okay or, they are irritated by them, but don’t want to intervene yet. In either case, it is better not to force the issue. A plaintive or exasperated glance at the tribunal might help – but don’t over do it.

Occasionally, it will be best to tackle the issue head on by raising it with the Judge. But this is a high risk strategy where it helps to have some experience of tribunals to pick your moment and your method. In general don’t, but if you think you must, resolve that you’ll only object if it happens twice more. Given that you are the person being interrupted you will inevitably be more irritated than anyone else. Resolving to wait will, hopefully, counteract this.

Under no circumstances should you attempt to retaliate by making your own frivolous interruptions when your opponent is speaking. The moral high ground is too valuable to give up, no matter how satisfying it would be. And, if you are making numerous objections, but the Judge keeps rejecting them, give serious consideration to the possibility that you’re being overzealous.

HM Courts and Tribunals Service is currently trying to make more efficient use of their estate (i.e. the buildings they own).

Historically, different courts and tribunals have tended to keep to themselves, with employment tribunals happening in designated employment tribunal buildings; tax tribunals happening in tax tribunal buildings and so on. Most of these buildings contained both hearing rooms and the admin staff dealing with the cases.

This is changing as HMCTS tries to make the system more efficient and less expensive. What this means, at least at the moment, is that some tribunal hearings are being listed away from the tribunal office.

So, if your notice of hearing says ‘Ambridge Magistrates Court’, don’t panic. You have not been somehow misrouted into into the criminal justice system. They’re just borrowing a spare room.

If you are involved in one of these cases it’s worth being a bit careful to avoid embarrassing mistakes. Don’t turn up at the Employment Tribunal office if you’re actually being heard down the road at the Social Entitlement Chamber’s building. And send letters to the Employment Tribunal Office, even if the hearing is happening somewhere else.

At no point during a tribunal hearing should you adopt a funny voice or do an impression of a witness. Not in cross-examination and not in submissions either. And definitely not while giving evidence. Some will think this advice superfluous – but we have both encountered representatives who have done these things.

This is an extreme example of a more general point. If you haven’t been in a tribunal before, your closest experience may simply be an argument or a quarrel. It’s a valid comparison – a tribunal hearing is basically a kind of formal quarrel, with the judge acting as referee.

But the formality and the referee are key differences. Many of the tactics that people use in an ordinary quarrel won’t work – and will most likely backfire – if tried in the tribunal. That includes mocking your opponent; shouting them down; pretending not to understand their point; emotional blackmail; baffling them with jargon; and storming off in a huff.

Why won’t these tactics work? Because tribunals are supposed to decide cases on the evidence and the law – not on which party can shout louder, or weep more convincingly, or mock the other more effectively. At best such tactics waste time and create noise that distracts from the points you should be making.

At worst you will annoy the tribunal by making an obvious bid to play on their feelings. And the tribunal, no matter how objective they try to be, are human and affected by their emotions, like everyone else. So the result will be, if anything, to make it less likely that you win.

The employment tribunals have recently moved to dealing with unfair dismissal cases under the fast-track procedure that has been operating for some years in wages claims.

This means that when the tribunal gets a claim for unfair dismissal they set a date for the hearing before sending the claim to the Respondent. The hearing date will be within 16 weeks of the receipt of the claim. So the Respondent will get a letter from the tribunal saying “There is a claim against you, which we enclose. There will be a hearing on date X to decide it.”

This contrasts with the normal procedure, where the tribunal waits for the Respondent to put in their response before setting a date.

The aim is to get relatively simple unfair dismissal cases resolved more quickly. More complicated cases that will need over a day to hear, or those combined with a discrimination claim, will still be listed in the usual way.

There are a couple of practical points arising out of this:

• Since the tribunal will be listing the case quickly, it makes sense to tell them if you have any unavailable dates when you put in your ET1.
• Applications for postponements from the Respondent are likely to be fairly common and, given that the date will have been set before they know anything about the claim, will probably be granted provided they are made promptly. The tribunal will aim to list the new hearing within 26 weeks of the date they received the ET1.

The interesting underlying point is that the move indicates that the tribunal thinks that most unfair dismissal cases can be heard in one day. About six years ago this was the normal practice, but listings then began to creep up until the standard listing was two days (this is one of the many things the Statutory Dispute Resolution Procedure gets blamed for).

On the whole, we think this is a good development. Most unfair dismissal cases can be fairly resolved in one day, and a short, early hearing has advantages for both parties. But the change means that time pressure in these cases is likely to increase.

Here’s a Word version of the standard CMD agenda in use in at least 3 employment tribunal regions – and quite handy as a checklist even if the ET doesn’t send it out.

CMD Agenda – Word

Thanks to Daniel Barnett for providing this.