Presenting a case is an exercise in storytelling. The two parties tell the tribunal rival stories, and the tribunal decides which one it believes.

Stories with gaps or implausible plot twists are less likely to be believed than stories that hang together and fit with what the tribunal already knows about human nature. So if your story goes (for instance): “I was a reliable and competent employee and I’d got on well with my manager for 3 years, and then suddenly and for no reason she started picking on me and finding fault with everything I did, and then put me on performance management procedures and ultimately sacked me,” the tribunal is likely to struggle with that. Why did she suddenly start picking on you? There’s got to be something more to it.

If you can help the tribunal with that, you’ll improve your prospects. You may not be able to: the true story may be something that’s been kept from you. But it’s worth thinking about whether you can work out why the people you say treated you badly behaved the way they did.

An example (drawn roughly from life – names and other details changed, of course) may help make the point:

Janet was a civil servant. She’d been employed in a large government department for over 20 years, having joined as a school-leaver at 16. She was a reliable and hard-working employee, and her managers valued her. She was by now an HEO (Higher Executive Officer), and had for a couple of years, with her managers’ support, been looking for a suitable SEO (Senior Executive Officer) job – the next grade up.

The office Janet worked in was reorganised, with the result that the 4 existing HEO jobs in that office were going to be replaced by 3 new HEO jobs. The existing HEOs were invited to apply for the 3 jobs, but Janet’s manager, Paul, told her she shouldn’t bother: this was the ideal opportunity to get her into an SEO job, and he had a couple in mind for her. So Janet didn’t apply, and the 3 remaining HEO jobs went to her colleagues. But then promised meetings about Janet’s fate got repeatedly postponed, and she started to feel that Paul was avoiding her. Her existing role dwindled to nothing, the office space was being redesigned; presently her room was measured for furniture for its new occupant, and still she had no news about what the department was going to do with her. She went off sick with stress and depression.

Finally, Paul and Janet had a meeting in which he offered her an HEO job in another office, further away from her home, where she’d always said she didn’t want to work. When she asked ‘but what about the SEO job you promised me?’ he denied ever having made the promise, and told her that she didn’t yet have the skills for an SEO job and would need an extended period of training in a supernumerary role before she was ready for an SEO job – and anyway, none was available at the moment.

Janet resigned and claimed constructive dismissal.

If Janet convinces the tribunal that this story is true, she probably wins her constructive unfair dismissal claim. But it’s an odd story. Everyone agrees that she was a valued employee. She’d always been on good terms with Paul previously, and he had always seemed a good and rational manager. She’s not aware of anything she’s done to turn him against her. She’s asking the tribunal to believe that he suddenly started treating her with bewildering unfairness, and telling lies about their previous conversations. What’s going on? Janet will have a better chance of succeeding if she can offer the tribunal a theory about why he might be doing this.

Here’s the back-story:

Paul genuinely thought that he had a couple of possible SEO jobs lined up for Janet when he told her not to bother applying for the HEO jobs in her own workplace, and he believed he would be able to place her in one of them. Getting Janet to drop out of the competition for the 3 HEO jobs saved him quite a lot of trouble – he could just slot her 3 colleagues in without interviews. He was busy and hassled at the time of the reorganisation, so he gave Janet that assurance without checking it out properly. Then when he came to try to place her in one of the SEO jobs, he found someone more senior had other ideas.

Now he was in a fix: he’d made Janet a promise he couldn’t fulfil, to the detriment of her career; and, worse he’d ducked dealing with it until she was off sick with stress, so he’d damaged her health too. Clearing up the mess honestly would have meant apologising to Janet and admitting to his superiors that he’d made quite serious mistakes. Pretending he hadn’t made the promise, and saying Janet wasn’t ready for an SEO job anyway, seemed to him like the easy way out.

This doesn’t reflect well on Paul, but it’s a perfectly comprehensible story of a normally decent manager backing himself into a corner where he faced a fairly tough test of his integrity – and flunked it. It’s certainly a much more credible tale than, ‘My previously decent and caring manager suddenly started victimising me for no apparent reason.’

Solicitors for employers quite often write letters with this heading. It means the letter – because it is an attempt to settle the claim – can’t be shown to the tribunal before or during the main part of the hearing. But the ‘save as to costs’ bit means that if you refuse the offer and then either lose, or get awarded less than they have offered, they may show the tribunal the letter in support of an application for costs at the end of the case. Their argument will be that your refusal of the offer amounted to unreasonable conduct of your case.

This is a tactic claimants can use, too – though they do so much less often.

If you think your employer has no reasonably arguable defence to your claim, you can try writing a letter headed ‘without prejudice save as to costs’ that offers to settle the claim, and warns them that if they don’t agree, you may apply for costs against them if you win and get what you’ve asked for.

This works best if the value of your claim is clear, and doesn’t involve much crystal-ball gazing. If you were unfairly dismissed and you’re claiming a long period of future loss, there will be altogether too much wiggle-room in estimating the value of your claim, even if the unfairness is obvious. But if you’re claiming a definite sum – say, for example, you’re claiming £652.24 in unpaid expenses, or you were only out of work for 2 months after an unfair dismissal before getting another job that paid just as well as the old one, so your loss is exactly quantifiable as your basic award plus 2 months’ net earnings – and the respondent has no sensible defence, it’s a tactic worth trying. There’s a sample letter at page 175 of Employment Tribunal Claims, 3rd edition (or you can download an earlier version from the first edition here).

We have both previously posted about Mehta v Child Support Agency, in which the EAT doubted the usefulness of having witnesses read their statements aloud: see Reading statement aloud and Follow up on witness statements.

Another consequence of the shift in practice this has caused is that tribunals are more likely to want to pre-read not only the witness statements, but also the key documents they refer to. This means it’s a good idea to have formed a view before the hearing starts which documents the tribunal is going to need to read in full, and roughly how long it’s going to take them. Agree a pre-reading list with the other side if possible.

How do you decide which documents to put on your list? This isn’t a hugely important decision, so don’t agonise over it – but sensible decisions will help the hearing go more smoothly, so a few rules of thumb may be helpful.

How long will pre-reading take?

It depends, of course. How many pages there are to read. Whether they are single or double spaced. Whether they are typed or handwritten; and if handwritten – whether by a primary school teacher or a doctor. How quickly the slowest member of the tribunal reads. Whether they are clear and succinct, or waffly and verbose.

For now, try 50 pages an hour as a rough rule of thumb. And please make a note in your next hearing of how many pages you ask the tribunal to read, and how long it takes them – and then comment on this post, so that we can collect some data and refine this estimate.

Employers, as we have remarked before, tend to hate the idea of re-employing an employee they have dismissed (see Reinstatement and re-engagement; but also Be careful what you wish for ). They will normally insist that it is not practicable.

One point to bear in mind in this context concerns your appeal against dismissal. Your employer presumably maintains that the decision-maker approached your appeal in good faith and with an open mind. It would seem to follow that if you’d won your appeal, you would have been reinstated – or conceivably re-engaged. It’s worth exploring that a bit when you’re cross-examining the person who heard your appeal, to make it harder for your employer to say later on, when you’re arguing about remedies, that it’s not practicable to re-employ you. If it was open to the decision-maker to allow your appeal and let you return to work, why isn’t it practicable now?

This isn’t bound to succeed, of course: things may genuinely have changed between the appeal and the ET hearing; or some of the reasons why you lost your appeal may contribute to its being impracticable to re-employ you now, even though your dismissal was unfair. But it might usefully block some of your employer’s lines of escape.

A few months back, Naomi wrote about Mehta v Child Support Agency, where President Underhill suggested that it was not always necessary for witnesses to read their statements aloud.

As Naomi suggested at the time, the case does seem to have caused a shift in tribunal practice. Although not the invariable rule, it has become much more common for statements to be read by the tribunal over a break in proceedings and, therefore, for cross-examination to begin almost immediately after a witness is sworn in.

This is worth noting for three reasons. First, tribunals are stressful, and it’s easy to be thrown if things don’t proceed quite as you expect.

Second, if you want a witness to read part or all of their statement, you need to be ready to explain why it’s necessary.

Third, if you’re used to cross-examining witnesses after they’ve read their statements aloud, you may have become reliant on the time that takes to catch your breath, shuffle your notes, remember who this witness is and where the fit into the story, re-read some of the documents they refer to, take a short nap, and so on. Not having witnesses read their statements aloud means everything moves along at a brisker pace, and you’ll have to cross-examine one witness straight after another .

Most employment tribunal claims are about dismissal (actual or constructive); and most of the compensation awarded in most claims reflects loss of income from the job.

If before the end of your employment, you were treated badly by your employer in a large number of different respects, it can be easy to lose sight of this. You want the tribunal to know the whole story. You want to tell them about (e.g.) the unfair decision to disallow your expenses claims, the unreasonable refusal to allow you to use the accounts photocopier, the stationery cupboard incident, the time you were left out when the birthday cake was distributed, the discourtesy of the manager who conducted your grievance hearing, the unfairness of the way the grievance appeal panel was selected, the employer’s obstructiveness in agreeing a date for the grievance hearing, the unreasonable insistence on conducting the hearing at Head Office, etc etc etc.

You may feel that all of these things are examples of discrimination against you, or your employer’s bad attitude to you. You may even be right.

But most of this will make no significant difference to how much money the tribunal orders your employer to pay you at the end of the case.

So if you really think the tribunal needs to hear about it to understand the story, put it all in your witness statement. But leave it out of your claim form and your list of issues.

Why? Why should you let your employer get away with even relatively minor wrongs?

There are two reasons. The first is that if you include everything, you will obscure the important points. You’ll risk making the tribunal think you are obsessed with trivia, so that by the time you get to the heart of your case you have lost their interest and sympathy.

(The truth is, being badly treated by your employer hurts a lot. Most people who have suffered this over a period lose perspective, and get a bit obsessive about it. But the tribunal doesn’t know you. So they can’t tell at a glance whether you’ve been treated badly because you’re obsessive and annoying – or you’re obsessive and annoying because you’ve been treated badly. So if you can keep an eye on the this tendency in yourself and restrain it, you’ll improve your chances.)

The second is that including everything will increase the duration of the hearing. This will certainly mean more wear and tear for you; and if you’re paying for legal representation, it will increase the costs. So when you’re tempted to claim for umpteen individual detriments, ask yourself this question: am I likely to get enough in additional compensation for injury to feelings for these incidents to make up for the cost of the extra hearing days? If the answer is no, trim your claim.

As a rule of thumb: if you’ve got a list of issues with more than about a dozen questions on it, think very hard about whether your case really needs to be so complicated. Most don’t.

I am running the London Marathon for the Free Representation Unit again.

FRU is a good cause: we help about 1,000 people each year in Social Security and Employment Tribunals. The vast majority of the work is done by volunteers, most of whom are at the start of their legal careers and so get valuable experience.

Most charities, particularly in the legal area, are facing lean times. FRU is no exception and we are currently operating at a deficit. So anything you can spare in sponsorship will be put to good use.

The easiest way to sponsor me is via JustGiving at: www.justgiving.com/reedmj11

Booking interpreters is one of the aspects of tribunal administration that can stumble.

If you need a interpreter for the tribunal, you will need to let the tribunal know in advance. This is best done by letter, at the point that the tribunal sends you the notice of hearing.

This can be very simple:

Smith v Jones, case number 00000001/2011: hearing date 17 May 2011

I should be grateful if you would arrange for a Portugese interpreter at this hearing to assist Mr Smith.

The tribunal will then arrange, and pay for, an interpreter.

Remember that the tribunal staff are not experts in linguistics. So if there is any possibility of confusion or difficulty – for example, you need an interpreter who speaks a particular dialect – make sure this is spelt out.

Approximately a week before the tribunal hearing, it is sensible to phone and check that an interpreter has been booked. It’s best to do this by phone, rather than letter. Occasionally, a letter confirming the booking is misinterpreted as a request for an interpreter, which the tribunal may refuse on the grounds that it is too late. This can cause the hearing to be needlessly postponed, which is rather frustrating, particularly if you have spent the weekend preparing for a three day hearing.

If your case involves multiple hearings do not assume that the tribunal will book an interpreter for the subsequent hearings. Often the tribunal will pick up on this and realise that someone who needed an interpreter in the January case management discussion will not have become fluent in time for the March merits hearing. But this is the sort of thing that can slip through the cracks.

The life of an employment judge is not an easy one. (This conclusion is not based on direct personal experience or a statistically robust survey, but I feel sure it’s true.)

Every day, each tribunal centre gets a heavy load of written applications: for postponements; for discovery; for a pre-hearing review to be listed; for a judgment to be reviewed and so on. Most of these are dealt with by whatever judges are on hand. Some may be spending the whole day on paper matters – but more likely, your application will be dealt with by someone who is fitting in paper work during the lunch break or at the end of the hearing day.

So your application will probably be dealt with in a hurry by someone busy, who has not previously had anything to do with the case and has a large stack of other applications to get through.

This should determine how you write your application. You need to make it as easy as possible for the judge to understand – fast – what you want, why you want it, and why you ought to get it. So it should have the following features:

1. It should be concise.
2. It should be direct, and make it absolutely clear what you’re asking the judge to do, and why.
3. It should include all the information the judge needs to decide the application.
4. It should leave out anything that the judge doesn’t need to know to decide the application.

Getting the balance of providing enough, but not too much, information can be difficult. The application should summarise all the information or background the judge needs to decide it. If you need to refer to any other documents – such as previous correspondence – copies should be attached. It should not assume that the judge has any prior knowledge of what the case is about or what has happened so far. But at the same time, it shouldn’t burden the judge with information she doesn’t need to decide the application. This will just make her job more difficult and risk obscuring the relevant information.

Some examples may help.

Example 1:

If you’re asking for a postponement because the claimant has just been admitted to hospital for emergency surgery, you don’t need to tell the judge anything about the case or its procedural history. All she needs to know is that there’s a compelling reason why the claimant isn’t going to be able to attend.

Example 2

If you’re asking for disclosure of some specific document the respondent is refusing to show you, you’ll need to explain why it’s relevant. That means you’ll need to explain the dispute to which it’s relevant. But you still don’t need to explain the whole case – just the bit that you say can’t be resolved without this particular document.

Example 3

If you’re asking the tribunal to strike out the response because the respondent has failed to comply with a whole series of previous orders from the tribunal, you’ll need to set out the procedural history in some detail, and attach copies of all the relevant orders, all your polite and understated but persistent letters chasing compliance with them, and all the respondent’s quarrelsome and/or feeble replies.

The civil and criminal courts have been concerned recently with whether it is permissible for journalists to ‘tweet’ direct from court. But the Employment Tribunal Service is ahead of the game.

Rule 15 provides:

(1) A hearing may be conducted (in whole or in part) by use of electronic communications provided that the Employment Judge or tribunal conducting the hearing considers it just and equitable to do so.

Relying on this, employment judges in some regions have apparently started to conduct case management discussions, and even in some cases substantive hearings, by Twitter. A top Employment Judge is quoted as saying:

This is a major development in open and transparent justice. Some hearing centres (Shrewsbury, for example) are literally miles from anywhere, and very hard to get to. Frankly, the extent to which it is meaningful to describe their hearings as ‘public’ is limited even on a day when the trains are running properly. A hearing by Twitter, in contrast, can be attended by anyone, from anywhere in the world.

Objections have been raised in some quarters that Twitter hearings do not properly comply with the requirements in rule 15(2) and (3) that employment judges and the public should be able to ‘see and hear all parties’ where live evidence is given. The same judge’s response is robust:

The public can see the parties’ Twitter profiles. It is superstitious in the modern age – not to mention plainly discriminatory against the ontologically compromised – to privilege an individual’s physical body over their online presence. If demeanour is important, we can use avatars.

A senior civil servant, Sir Hawthorne Pearby, speaking for the Ministry of Justice said:

This is an exemplary example of the synergistic direction of travel currently pursued by the Tribunal Service. Going forward, we will be conducting an ongoing consultation with key stakeholders from the social partner organisations, as well as representatives from the Guild of Vexatious Litigants, before progressing to finalisation of a strategic direction for international roll-out.

We hope shortly be in a position to announce plans to integrate this developmental strand with the government’s complementary aspirations for the tribunal service by offering ACAS mediation over Twitter.