by Naomi Cunningham & Michael Reed
“Subject to” is one of those bits of technical language that can easily cause misunderstandings for the unwary. It comes up frequently in legislation and often leads to mistakes.
A rule that is described as subject to something else, is subordinate to that thing. So, if Rule A is subject to Rule B, Rule A is subordinate to Rule B.
In other words, it will take effect, only so far as Rule B does not apply.
This is much easier to see in practice.
This is case about a notice to appeal that was rejected on the sift. The appellant then applied for an oral hearing, where the appeal was again rejected.
The facts and issues in this case are of limited general interest, but the judgment is significant because it sets out how the EAT Judges see the application to appeal process.
A lot of people bring friends and family to the tribunal to support them.
This is an excellent idea. Tribunals are stressful, difficult and not the the sort of thing you should do alone unless you have to. Just knowing that there is someone there to give some emotional support can make things much easier.
This is just a bit of useful psychology. We all tend to bridle slightly when told that we have no choice. So saying to the tribunal:
is likely to put their back up to no good purpose. Human nature means that their first thought may well be “Oh I can’t, can’t I?”
Litigants and new lawyers are often troubled by the vast number of different situations that arise in the process of litigation.
It is helpful to remember that, really, there are only a handful of different situations, just an infinite number of slight variations.
One of the most common is asking the tribunal to do or order something. This might be ordering a document be disclosed; a question answered; a hearing postponed or a witness ordered to attend. But all these situations follow a common pattern. What follows is a standard template for applying for almost anything.
One of the problems you can face early in your career is that tribunals don’t take account of your inexperience. It can feel as if you’re expected to reach the standard expected of an experienced lawyer from the first moment you start representing clients.
To some extent this is just not a problem that should be solved. Tribunals expect a certain basic standard of all representatives. Inexperienced shouldn’t mean incompetent.
But beginners are inevitably less skilled than experienced people. It is not unreasonably to expect the tribunal to cut you a little slack in your first few appearances.
Generally, tribunals notice when you are a beginner. But if they don’t, should you tell them?
Witnesses in the employment tribunal are usually asked to read their statements aloud. One of the small things you can do to help the hearing run smoothly is to let your witnesses know in advance how you’re going to handle references to documents in the statement.
Tamara Lewis, notable for having written the excellent Employment Law: an adviser’s handbook, has written the Claimant’s Companion.
A lot of litigants present character references to the tribunal. These tend to be short statements or letters written by people who know the litigant saying, in effect: ‘Mr Smith is a good and honest man, who certainly would / wouldn’t have….’
A common variation is statements about the other side saying, more or less: ‘Ms Jones is a nasty and dishonest person, who certainly would / wouldn’t have….’
This makes a certain amount of sense. An important part of the tribunal’s role is to decide who to believe. So the character of the parties, good or bad, is important.
But these statements are rarely, if ever, of any use.