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.

The 18th edition is now available.

The cover seems to be decorated with bubbles, which is odd – more shampoo bottle than authoritative law book. But the contents are as dry and indispensable as ever.

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.

This is a generalisation of quite a lot of posts on this site: if you want someone to do something, make it as easy for them as you can. So, for example:

Those are just examples. It’s essentially the same point as the advice about only fighting the battles you need to fight: on everything else, do whatever will produce the least friction.

One of the things that will normally be tackled at a case management discussion is a list of issues. We’ve written about these before – the short point of this post is just that it is very important to make sure everything you’re going to want the ET to decide makes an appearance on the list of issues.

So when you get the order from the tribunal after the case management discussion, look at the list of issues it sets out and check it carefully against your claim. Is there anything you put in your ET1 that isn’t reflected there? If so, is that because you’ve decided since that you’re not going to pursue it? If the answer to the first is ‘yes,’ and the answer to the second is ‘no,’ you need to write to the tribunal straight away (with a copy to the other side) to point out that the list of issues isn’t complete.

The same goes even if the tribunal had adopted a list of issues that you had provided or agreed with the other side. If you left something off it by mistake, you will probably be able to put that right as long as you do it promptly. The closer to the hearing – and the more the new issue adds to the complexity of the case and the amount of evidence you and the other side will have to present – the less keen the tribunal will be to let you add issues to the list.

The Employment Tribunal Service will provide an interpreter if you or one of your witnesses doesn’t speak good enough English to give your evidence without one. The best time to ask for an interpreter is at the case management discussion, though a later request will probably also be met.

If you can’t speak English at all, or your English is very poor, you don’t have a decision to make: you need an interpreter.

But if your English is good enough for most practical purposes, but not completely fluent, you need to decide whether or not you are comfortable giving your evidence in English. Not having an interpreter when you need one can be damaging, but using an interpreter has some quite serious disadvantages too, so you’ll need to weigh up the pros and cons.

Benefits of using an interpreter

There’s really only one benefit: if you use an interpreter, you will have a better chance of understanding exactly what it is you have been asked, and making yourself clearly understood in reply. The worse your English, the more significant this benefit is.

Disadvantages

There are quite a lot of disadvantages.

That’s not as sarcastic as it sounds. Hearings are stressful and pretty weird, and cross-examining is probably the weirdest and most stressful part of conducting a hearing. Stress and unfamiliarity do make people lose touch a bit with their common sense.

That’s why these two pieces of advice are necessary:

1. Don’t take a witness to a particular line of her witness statement and say ‘You say such-and-such in your statement, don’t you?’ There’s no point: there it is in her statement. She’s just said it. You don’t need to get her to say it again, or agree that she’s said it.

2. Don’t take a witness to a document in the bundle and ask them if they agree that it says what it says. Again: they’re bound to. You can sensibly ask if they agree with you about what the significance of the document is, or face them with inconsistencies with their statement and the document, but there’s no point asking them to agree that what’s written on the document is what’s written on the document. The tribunal can see that for itself.

When you want to draw the attention of a witness – and everyone else – to a particular line in a document in the bundle, be clear about what you’re asking them to look at. So if you’re looking at an email string, you may want to say something like ‘the third email from the top of the page, sent by Dot Walsh at 5.34 pm.’ Or if you’re looking at minutes of a meeting, you may want to say ’3 lines from the bottom of the page,’ or ’5 lines down in the 2nd paragraph.’ The holes punched in the pages are sometimes useful as landmarks, as in ‘about level with the lower punch hole.’

It’s a small detail, but in a long hearing the time wasted will add up quite a bit if the tribunal has to keep stopping you and asking where you mean.

We’ve written quite a bit about the value of being nice. As we’ve remarked before, this isn’t because we’re especially nice people – it’s just that being nice is often quite a good way of getting what you’re after.

A particular case of this is that it’s worth being pleasant to the tribunal. They shouldn’t really let their decisions about which party wins be influenced by which party they like better – but they are human, and if the case is finely balanced and someone has to get the benefit of the doubt, being the party the tribunal likes better could just tip it in your favour. So if they ask you a question, answer it patiently, even if you think it’s a silly question. If you feel annoyed with them, don’t let it show. If you think the whole tribunal system is corrupt, keep that opinion to yourself until your hearing is over. Make eye contact at least some of the time when you are giving your evidence. Laugh or smile if one of them attempts a joke.