Tribunals and lawyers will sometimes refer to a ‘Judge sitting alone’. This means that he is sitting without the lay-members. This is common in case management discussions and pre-hearing reviews.

What it doesn’t mean is that the judge will sit alone in the sense that nobody else will be there. If you’re a party or representing a party, you still need to go.

Of course, sometimes the tribunal will meet without the parties, usually to discuss their decision. This is called a ‘hearing in chambers’. Another similar bit of jargon is a hearing ‘in private’, which means that the tribunal, parties and representatives attend, but the public may not.

Like a lot of jargon, this is fairly obvious to lawyers. Non-lawyers may wrongly conclude that the words mean what they seem to mean, and not what lawyers have decided that they mean. If you are ever unsure, ask.

Occasionally one party or the other wants to play CCTV footage or audio recordings to the tribunal. I have two suggestions on this:

1. Don’t

Or don’t if you can help it, anyway. If you have a recording of a conversation, it will normally be more convenient for the tribunal if you can agree a transcript of any relevant parts with the other side. If the recording is clear, the other side will probably agree with you who said what, and confine themselves to arguing about what it meant or whether it mattered. If the recording is unclear, the tribunal is likely to be bored and irritated if they’re made to listen to it, and it won’t help. Similarly with CCTV or video footage: if possible, just agree with the other side what it shows so that you can tell the tribunal without making them watch it.

1. If you do, make it as painless as possible

If you can’t get the other side to agree a transcript or a description of the material and you think it is important that the tribunal sees or hears it, there are various things you can do to minimise the inconvenience:

On the 25th April I will be running the London Marathon again on behalf of the Free Representation Unit.

I have been involved in FRU for about 7 years. First as a volunteer, then as a member of the Management Committee and, finally and currently, as a member of staff. It is a great organisation that helps about 1,200 people a year by providing representation in tribunals, which they cannot otherwise afford. Most of the work is done by volunteers. Like all charities it relies on donations to keep going.

So it’s a worthy cause, worth supporting regardless of my annual struggle to cover 26.2 miles without embarrassing myself. But I’m happy to provide an excuse.

You can donate via my JustGiving Page. Anything you can contribute will be gratefully received and put to good use.

Thank you.

A standard instruction that turns up from time to time in case management orders goes:

Legal submissions (if any) shall be in writing and accompanied by a copy of any Law Report(s) referred to. Three copies will be required by the Tribunal and should be brought to the hearing.

There are two problems with this: (i) it assumes you know what legal submissions and Law Reports are, despite the fact that many claimants (and quite a lot of respondents) will be representing themselves with no legal advice; and (ii) it’s silly.

What it means

‘Legal submissions’ are arguments about the law and its consequences. So if you say ‘my employer threw a waste-paper basket at me,’ that’s an assertion of fact (true or not). It’s not a legal submission, and it belongs in your witness statement. But if you say, ‘throwing a waste-paper basket at me was a breach of the implied term of trust and confidence in my contract of employment, and that was a fundamental breach entitling me to resign without notice,’ that’s a legal submission. You don’t need to put it in your witness statement, but you do need to say it at the end of the hearing – after everyone’s given their evidence – when you are telling the tribunal why you should win. Telling the tribunal why you should win is called ‘making submissions,’ and the part of that that is about what the law says and why it helps you is ‘legal submissions.’

Law reports are official printed accounts of cases that have been decided in the past, in this context mainly by the Employment Appeal Tribunal, the Court of Appeal or the House of Lords (or Supreme Court as it now is). For instance, if your employer says you didn’t resign because he threw a waste-paper basket at you but because you’d found another job – so it wasn’t constructive dismissal – you may want to remind the tribunal of Nottinghamshire County Council v Meikle [2005] ICR 1. That’s a case in which the Court of Appeal said that a fundamental breach doesn’t have to be the only cause of the resignation for the resignation to count as constructive dismissal, so it would help you to argue your case in this situation.

So the instruction quoted means that if you want to say anything about the law, you must say it in writing, and you must bring three copies of what you want to say to the tribunal; and if you want to rely on any law reports, you must attach copies.

Why it’s silly

It’s silly, because the tribunal doesn’t actually mean it. The tribunal can’t properly stop you making oral submissions on the law if you need to, and they won’t try. It’s true that if you want to make a legal point that is at all complicated, it’s a good idea to make it in writing. But often you won’t. Many cases will run from beginning to end without any significant dispute about what the relevant law is: the dispute is about who did what, when and why, and whether it was fair. But minor questions of law may well come up unexpectedly, and both parties will certainly be allowed to say their piece on them.

The advice to bring 3 copies is unhelpful, too, because if you do decide to do some written submissions, you will actually need to take 5 copies with you: 3 for the tribunal, one for you, and one for the other side.

Many litigation lawyers have a weakness for sports metaphors. This is probably because litigation is in some ways like a competitive game.

But there are also important differences. One is that games tend to be played on a level playing field; but in litigation what stands for the playing field is the facts of the case. Those almost always favour one side over the other.

This means that how skilfully you play the game has much less influence on the outcome of litigation than – say – tennis. If you are Andy Murray and you play a match against an ordinary local tennis club player, then unless you’re drunk, asleep or not trying, you will win. But in litigation, the better advocate can just as easily lose as win: because most of what determines the outcome is the facts, not the skill of the advocates.

One of the practical results of this is that you can’t relax just because you don’t think much of your opponent. An opponent who makes a series of hopeless arguments isn’t necessarily doing you a favour. He may inadvertently be ‘hiding the ball’. In other words, he may have a good point that he’s concealed from you by surrounding it in nonsense.

That’s ok if your opponent succeeds in hiding the ball from the tribunal, too. But it’s dangerous if the tribunal manages to spot it but you don’t: then your opponent’s best point is being made for him by the people who will make the decision in the case, and you’re not ready to meet it.

The only defence against this is to look hard at the other side’s case, and ask yourself what points you would make if you were representing them. If there are good points that they have left out, don’t make them for them, obviously; but do be ready for the possibility that the tribunal will.

• Sleep on it. The problem with editing something you’ve just written is that you are too close to it. You will tend to see what you expect to, rather than what is actually there. Similarly, you are less likely to spot structural problems on a document you have just written. Once a little time has passed, you can come to it fresh.
• Print it out. Editing on screen is something many people find difficult. Most people find it easier to see typos and other problems on paper.
• Use a monospaced font. A monospaced font is one, like Courier, where all the characters occupied the same amount of horisontal space, i.e. like a typewriter or a computer terminal. They are not suitable for finished work, because they look ugly. But some people find it easier to spot mistakes in a monospaced font.
• Give it to someone else. A second opinion is often useful. Someone who does not know the detail of your case is more likely to spot gaps in your argument. And a fresh pair of eyes is more likely to spot mistakes.
• Read it aloud. This is likely to be embarrassing, but is often worth doing anyway. Reading aloud will slow you down, making it easier to spot problems. Also, reading aloud will often show up stylistic problems that are harder to spot when reading.

All of these tips are just suggestions. Use what you find useful and ignore the rest.

If you have any tips of your own, please do share them in the comments.

Employment tribunal hearings are stressful, and lots of people become more compliant and suggestible under stress than they are normally. (Many people are scarily compliant to start with, as the Milgram experiment notoriously demonstrated in 1961. )

This can mean you’re so busy conforming to what you think is expected of you that you don’t assert yourself when you need to.

In particular, if you are representing yourself, you may be doing your very best to conduct the case as if you were a professional lawyer. That’s a good idea, up to a point. But if this isn’t something you do all the time, you will need a bit more latitude than a lawyer. A lawyer is expected to have read the legal authorities relevant to the case; to understand any technical terms used; to be ready to make submissions immediately after the evidence is finished; to be able to read and assimilate new documents quickly. None of this necessarily applies if you are representing yourself.

So if the other side gives you some documents you haven’t seen before, ask for time to read them. If the lawyer on the other side or the tribunal uses technical terms you don’t understand, ask for an explanation. If you need to collect your thoughts after the end of the evidence before making your submissions, ask for a short break in which to do so. If the other side gives you some copies of law reports they say are relevant, ask for enough time to read and understand them.

Sometimes you need to get sacked, but you just can’t think of a really good act of gross misconduct. Here are some suggestions.

Old-fashioned violence

Fighting at work is an effective way of getting a P45 in most workplaces. It’s unoriginal, though, isn’t it?

Swearing

Only attempt to get dismissed by swearing if you are sure your employer is fairly straight-laced. Some employers will just cheerfully curse back; others may not even notice.

Always swear in a language your employer knows – you’re wasting your breath otherwise. Besides, it’s bad manners.

Offences involving cake

Employment lawyers are often asked ‘How can I get dismissed using only a cake?’

It’s a tricky problem, but not insoluble. The point about cake is that although it’s nice, it’s not always appropriate.

Offences involving public address systems

If you’re lucky enough to have access to a public address system at work, this opens up some of the most appealing possibilities for gross misconduct. To score points for style, why not see if you can get summarily dismissed for what you have said on the public address system without saying anything untrue, confidential or obscene?

Work to rule

‘Working to rule’ is a type of industrial action, where union members work to the letter of their contracts. This is surprisingly disruptive in most organisations.

A one-person conventional work to rule could get you dismissed in the end, but it’s unlikely to achieve the elegant simplicity of summary dismissal for gross misconduct. The real opportunity is to work up, rather than down, to your contract or job description. This will be particularly effective if they contain words like ‘enthusiastic’, ‘pro-active’ or ‘initiative’.

Putting the gross into gross misconduct

We leave this to your imagination.

In Is this the best you can do? we emphasised the important of rewriting and editing.

It’s easy to say that rewriting is important, but harder to explain how to do it. It’s easy to say ‘Get the words right’, but hard to explain what the right words are or how you find them. Over the next couple of weeks, we’ll be trying to give some helpful guidance.

A good starting point is to recognise that rewriting covers a wide range of different tasks.

Rethinking

Lots of us do a lot of our thinking about cases by writing about them. So rewriting is an excellent time to rethink. On reflection, does your argument make sense? Have you missed something out? Does the witness statement cover all the information it needs to?

Presenting

Once you are confident that you are saying the right things, you can consider whether you are presenting them most effectively. Are you dealing with things the right way and in the right order? Is there a way of making your argument more persuasive?

Line-editing

This is the sentence by sentence work. It means looking at each sentence, each paragraph, and asking ‘Is there a better way of putting this?’ Better, in this context, means shorter, simpler and more direct.

Nit-picking

Finally, you check your spelling, punctuation and grammer. Very few people get this absolutely right all the time, but it is worth working at.

There is a Tribunal Procedure Committee, which drafts rules for tribunals.

But the Committee only deals with the First-tier and Upper Tribunals; the employment tribunals are neither. So the Committee’s work, and their rules, are not relevant to employment tribunal litigation.