Someone found this blog a few minutes ago with the search ‘help! anyone tell me who’s responsible for calling witnesses to the employment tribunal.’

One purpose of this blog, and the book it supports, is to help people who aren’t lawyers find their way around the employment tribunal system – so we try not to assume any prior knowledge. But once in a while a search tips us off to something we’ve assumed is obvious, when actually it’s not.

The answer to this question is that any given witness can be called by either side, or by the tribunal itself. The latter almost never happens. (In fact, I’ve never heard of it happening. If you have, please leave a comment – I’d be very interested to hear about the circumstances.)

‘Calling’ a witness involves asking them to attend the hearing, and writing down the relevant information that they can tell the tribunal in a witness statement, which you will give to the other side a week or two before the hearing in exchange for sight of their witness statements; and then at the hearing, putting them forward to give evidence when you are presenting your case. You don’t need any special permission from the tribunal to call a witness to support your case: generally it will be left to you, though the tribunal may refuse to listen to witnesses whose evidence it considers irrelevant. If there’s a case management discussion, you will probably be asked how many witnesses you intend to call, and you may be asked to summarise what they will be able to tell the tribunal about.

You can ask the tribunal to order a witness to attend, but this is rarely a good idea unless the witness is basically willing to help, but needs an order e.g. so as to be able to persuade their employer to let them take the day off work. See this post on unwilling witnesses.

See generally the posts filed under the tags witnesses and statements – and do click through to ‘older posts,’ because this isn’t the kind of material that goes out of date.

If you win your unfair dismissal case employment tribunals can in some circumstances order your employer to re-employ you. (See generally this previous post.) There are two types of re-employment orders: ‘reinstatement’ which means giving you your old job back; and ‘re-engagement’, which means giving you a different job that is comparable to your old job, or otherwise suitable. These orders are rare, but in the right case they are achievable.

If you want to apply for re-engagement, ask your old employer for a list of their current vacancies together with job descriptions. You will need to identify a job from that list that you are willing and qualified to do. The best type of job will be one that is similar to your old job in pay, skill and grade. Having identified the job/s that you think are suitable, tell the tribunal why you say re-engagement will work.

The tribunal has a wide discretion to order re-engagement on such terms as it considers just, but that doesn’t include a power to order re-engagement for a trial period. So if you want to try the new job before committing to it, you could ask the tribunal to adjourn your remedy hearing to allow the parties to conduct their own trial period. Obviously there’s no future in this unless the employer is willing to contemplate a trial re-engagement. You could point out that a trial can go two ways: if it demonstrates that you’re well-suited to the new job, they don’t need to waste time and energy opposing your claim for re-engagement; but if it goes badly, the likelihood is that you will drop your claim for re-engagement – and even if you don’t, they will be in a stronger position to say that re-engagement is not practicable.

When seeking the adjournment ask the tribunal to schedule a future telephone case management discussion (CMD) for shortly after the end of the trial. If the trial failed, you can ask the tribunal at the CMD to schedule a future remedy hearing. At that remedy hearing you can claim for loss of earnings (including future loss).

If re-engagement is agreed remember to ask your employer for compensation for lost earnings from dismissal to the date of re-employment before negotiations are finalised.

There’s quite a lot that’s troubling about the dismissal of Leonora Rustamova for what sounds like inspired and committed teaching of hard-to-reach pupils.

One point of quite wide practical interest is in Ms Rustamova’s claim that when she was suspended, she was banned by her employer from speaking to anyone from the school or its community (see the Guardian interview of her here).

Can employers lawfully do this?

It’s not at all clear that they can. Your right to respect for your private and family life under article 8 of the European Convention on Human Rights includes a right to associate freely with your friends; and freedom of expression (which includes the freedom to ‘receive and impart information and ideas’) is guaranteed by article 10. These aren’t unqualified rights – but neither can your employer set them aside just because it feels like it. If your employer suspends you and bans you, temporarily, from talking to the specific people it wants to interview in the course of its investigation of your suspected misconduct, that’s probably lawful. But a purported ban on talking to any colleagues or anyone connected with the employer for an indefinite period is likely to be seen as an excessive interference with your rights to respect for your private and family life and freedom of expression. The wider the ban, the more likely it is to be unlawful.

What you actually do about this is another matter. If you defy a ban placed on you during suspension, you may well attract further disciplinary proceedings for that – which could result in dismissal even if the original investigation clears you. If your main aim is to preserve your job, being theoretically within your rights will be fairly cold comfort.

But if you do find yourself accused of breaching the terms of your suspension, it may be worth arguing before the employment tribunal that the ban was unlawful and therefore not something you could be fairly disciplined for.

As previously noted it is vital that appeals to the EAT are lodged on time and properly constituted (legal jargon for having all the necessary documents present and correct).

An easy way of getting this wrong is to miss pages out of a document accidentally. A document with a missing page is incomplete and will make the appeal invalid until the omission is fixed. If this happens after the deadline the appeal will be out of time.

There are any number of ways of accidentally missing out a document. Photocopiers are often to blame, particularly those with automated feeder trays that can all too easily swallow two pages instead of one. Sometimes the problem is a mistaken attempt at brevity – leaving out a blank page on the basis that it is unnecessary.

To labour the point: when filing a notice of appeal it is important to be very careful that all the required documents are included and complete. And it is sensible to do this at least a week in advance of the deadline, so you have time to correct any mistake that slips through.

In general, typographers try to avoid ending a page with a short fragment of a paragraph or starting a page with the last small part of a paragraph. These are called widows and orphans. They are bad because they look poor and make the document harder to read.

This is not a problem that you should really worry about in legal writing. Most legal documents are written in Word, which has automatic functions dealing with how paragraphs are split. These generally produce an acceptable result and tribunals expect functional documents, not beautiful ones.

There are, however, two situations where manually tweaking can help just enough to make it worth doing.

The first is when quoting legislation. To Word a series of sections in a statute looks like a sequence of short paragraphs, so it is happy to split them over a page break. This is undesirable. To a reader, the series of sections is one paragraph, which they want to see as a whole. Indeed, splitting the legislation over two pages is likely to create more problems than any other type of page break. Legislation is something you often need to read carefully and more than once. Having to flip between pages makes this harder. Even if there is no real choice but to go over two pages, it is worth trying to make the break at some sensible point.

The second situation is where the content around the break produces an unintentionally confusing or humorous result.

For example, if you are representing Mr Jones you might write ‘Mr Smith then said that Mr Jones stole £5,000 and that was an act of misconduct.’ But an unfortunate page break might mean that you appear to start a new paragraph with ‘Mr Jones stole £5,000 and…’ Even if this is unlikely to cause real confusion, it is worth avoiding for appearances sake.

To fix these problems, just manually insert a page break in a more sensible place or rewrite the problematic sentence.

Obviously, these sorts of manual adjustments should be the last thing you do before finalising your document. Otherwise, subsequent changes are likely to shift the page breaks and disrupt all your careful work.

Miller v Lambeth Primary Care Trust is the latest cautionary tale about the need to make sure that appeals to the EAT are brought in time and properly constituted.

In Miller the appeal was presented one day late and without all the necessary documents. By the time the documents were sorted out, the appeal was two days late. Mrs Miller tried to have time extended, but the EAT, highlighting again the strict time-limit, refused her application.

The interesting point is HHJ McMullen’s discussion of improperly constituted appeals. He notes that an astonishing 600-odd appeals a year to the EAT (of a total of about 2000) are invalid because they do not contain the necessary documents. Mostly the problem is sorted out, because the EAT staff contact the appellant, who then sends in the documents within the time-limit. But when appeals are lodged very close to the deadline, there isn’t time to do this. The appeal is then out of time, and as HHJ McMullen points out, very few of these are allowed back in.

A high percentage of appeals to the EAT are lodged on the final day. As Miller highlights this is a high risk strategy, particularly if you are not experienced in bringing appeals.

The moral is:

• Make sure all the necessary documents are lodged with your appeal — check carefully against paragraph 2.1 of the Practice Direction.
• Lodge the appeal at least a week ahead of the deadline.

A sign on a churchyard gate, seen on a walk at the weekend, reads:

Please be aware of rabbit damage to the grass to the left of the church door.

This has nothing whatever to do with employment tribunal practice. It’s just rather a perfect specimen of a particular kind of bad writing. I stared at the notice in some puzzlement for several seconds (why do I care about rabbit damage to the grass? is it some kind of an attraction? or is it supposed to be my fault? what am I supposed to do about it?) before it dawned on me that what the writer was trying to say was simply ‘Mind you don’t fall down the rabbit holes.’

I think this sort of thing is brought on by self-consciousness. Things people would be perfectly able to say plainly and simply face-to-face cause them hand-wringing anxiety when they realise that what they write is going to be displayed on a gate and read by every passing walker – or put in a bundle and read by a tribunal. Is it formal enough to write ”Don’t” on a public notice? Is it somehow rude to speak of rabbit holes? Or ambiguous – perhaps they’ll think I mean holes in the rabbits?

The same thing happens with writing people know a tribunal is going to end up reading: they feel tribunal proceedings are important and formal, and that means you have to find longer words and more oblique ways saying things than you normally would.

But you don’t. If you catch yourself struggling for formality in this way, just relax. It’s much better to write what you mean as simply and directly as you would say it aloud.

In Yerrakalva v Barnsley MBC, the EAT has given a helpful judgment on costs in the employment tribunals.

The claimant had complained of disability discrimination. There had been a pre-hearing review on the disability issue which had been adjourned part-heard after 3 days. After the adjournment, the employment judge had fallen ill, and it had eventually been decided that the hearing would have to be started afresh. Then, before that could happen, the claimant wrote to the tribunal withdrawing her claim.

The respondent applied for its costs, which it said amounted to over £90,000. The employment judge who considered the costs application considered the amount excessive, but awarded costs in favour of the respondent subject to a detailed assessment in the county court. That meant that the claimant was going to have to pay however much of the respondent’s costs the county court thought was reasonably incurred.

Under paragraph 40 of the Employment Tribunals Rules of Procedure, a tribunal can make a costs order where:

the paying party has in bringing the proceedings, or he or his representative has in conducting the proceedings, acted vexatiously, abusively, disruptively or otherwise unreasonably, or the bringing or conducting of the proceedings by the paying party has been misconceived

In other words, you may be made to pay costs if (a) your claim is so weak that you should never have brought it at all; or (b) you’ve brought it for improper purposes – e.g. just to harass your employer; or (c) even if your case is strong, you’ve behaved really badly in the way in which you have conducted it.

The reason given by the employment judge in Yerrakalva was that the claimant had told two lies in the course of the PHR. The EAT (President Underhill presiding) set aside the costs order: the lies amounted to unreasonable conduct of the proceedings, but were not particularly important, and it could not be said that the respondent incurred any extra costs because of them. Underhill P says at ¶17:

While there does not have to be a precise causal relationship between the unreasonable conduct and the costs claimed, any award of costs must, at least broadly, reflect the effect of the conduct in question.

The judgment also emphasises usefully in passing that withdrawing a claim does not in itself indicate that it is misconceived and should never have been brought:

It is worth emphasising, albeit in passing, that the Judge did not treat the fact that the Appellant had withdrawn as constituting, or tantamount to, an acknowledgment that her case was misconceived or otherwise as in itself giving grounds for an award of costs. While such a conclusion may well be appropriate in the circumstances of a particular case, it is important that there should be no general rule to this effect, not least because such a rule would be a powerful disincentive to parties in an appropriate case taking a sensible and responsible decision to withdraw.

If you want to withdraw and you think the respondent might try for costs, it is safest to try to settle the case either for a notional payment, or else just for a promise not to go after you for costs. If you can’t get that agreement, Yerrakalva may help you head off a costs order.

Many of our loyal readers have probably been wondering “What can we do for Naomi and Michael this Christmas?”

The answer to this seemingly tricky question is actually straightforward. You can do some of your last-minute Christmas gifts through Amazon. The Free Representation Unit will get a small donation (about 5%) from our affiliate programme, and we will be mildly pleased (or possibly terribly excited, depending on how many people do it).

The format of a lot of advocacy, both written and oral, is to propose a conclusion and provide evidence or explanation to support that conclusion.

So, for example, you might write:

Ms Jones was unfairly dismissed. Mr Smith, who investigated the alleged misconduct did not carry out a proper investigation. He failed to speak to Ms Sampson or Mr Plummer, who would have told him that Ms Jones was with them, in the back office, when the incident took place. Mr Smith also failed to examine the relevant CCTV footage, which would have confirmed Ms Jones’ account.

Here, the conclusion is that Ms Jones was unfairly dismissed. The explanation is the detail relating to the shortcomings of Mr Smith’s investigation.

In the example above, the conclusion comes first and then the explanation follows. It could equally be written with the explanation first.

Mr Smith, who investigated the alleged misconduct did not carry out a proper investigation. He failed to speak to Ms Sampson or Mr Plummer, who would have told him that Ms Jones was with them, in the back office, when the incident took place. Mr Smith also failed to examine the relevant CCTV footage, which would have confirmed Ms Jones’ account. These failures mean that Ms Jones’ dismissal was unfair.

Whether you should lead with the conclusion or the support for it will depend on the situation. Sometimes it will be best to set out what you are going to try to prove, so that the tribunal can see the point of what you are saying. Other times, it will be best to prepare the ground by putting the evidence first. Or your conclusion may not make sense until some other matters are explained.

Quite often, it will just not matter.

Do avoid, however, trying to put a conclusion in the middle of your argument.

Mr Smith, who investigated the alleged misconduct did not carry out a proper investigation. He failed to speak to Ms Sampson or Mr Plummer, who would have told him that Ms Jones was with them, in the back office, when the incident took place. Ms Jones’ dismissal was therefore unfair. Mr Smith also failed to examine the relevant CCTV footage, which would have confirmed Ms Jones’ account.

This is just confusing. The conclusion gets lost in a muddle of other points. It also become difficult to see what the CCTV point is about. Is it more evidence of a bad investigation? Or is it a new, and separate point?