The purpose of this glossary is to provide non-technical working definitions for the terms in common use in the employment tribunals that are most likely to give non-lawyers difficulty. Many of these terms are explained at greater length in the main text of this book; some are defined by statute, and where that is the case, this glossary is no substitute for considering the language of the statutory definition.

ACAS
Advisory, Conciliation and Arbitration Service: the statutory body that has a duty to attempt to bring about the settlement of employment tribunal disputes; see conciliation.

actual dismissal
Dismissal where the employer has terminated the contract of employment: contrasted with constructive dismissal, where the employee has resigned in response to the employer’s fundamental breach of the contract of employment.

additional information
Further details of the claim or response provided at the request of the opposing party.

adjournment
A hearing is said to be adjourned if after it has begun it is put off to another day, or to later in the same day.

affidavit
A formal sworn statement used in legal proceedings. An affidavit has to be sworn in front of a solicitor or barrister.

affirm
1. An employee is said to affirm her contract of employment if, after the employer has committed a fundamental breach of contract, she acts in a way that implies that she intends to keep the contract alive. This deprives her of the right to resign and complain of constructive ¬dismissal.
2. Before giving evidence a witness must either swear an oath to tell the truth (on the appropriate holy book), or affirm, that is, make a solemn non-religious promise to tell the truth.

appellant
The party – whether the employer or the employee – who appeals against a decision.

attendance note
A file note recording what was said at a meeting or in the course of a telephone conversation.

authorities
Previously decided cases relied on by a party in support of its arguments.

barrister
Barristers are a kind of lawyer who, very broadly speaking, specialise in advocacy. Barristers are traditionally only instructed by solicitors, although some barristers will now accept instructions for certain kinds of work direct from ‘lay’ (i.e. non-solicitor) clients. If you want to use a barrister at all in employment tribunal proceedings, you will probably want them to represent you at the hearing (though many solicitors will do this too); otherwise, if you are going to pay for legal advice, you will most likely want to go to a solicitor. The Bar Council provides more detailed information about barristers and what they do. (The website welcomes you with the hope that you will enjoy your visit. You may have a good reason to visit the site, but if you are looking for enjoyment you are likely to be disappointed.)

bundle
The papers prepared for use at a hearing – for example, a bundle of documents, a bundle of authorities, etc – usually paginated, indexed, and held together securely (for example, in a lever arch file).

burden of proof
The party that has the job of persuading the tribunal that its assertions on any issue are correct is said to bear the burden of proof on that issue. For example: a claimant who says that she was dismissed for raising health and safety issues must show that this was the reason for her dismissal if she is to succeed in her unfair dismissal claim, and so if the tribunal cannot decide what was the reason for her dismissal she fails. If her employer says that she has failed to take reasonable steps to mitigate her loss, however, it is for the employer to show that that is true: it is not for her to show that she has done everything she reasonably could.

case management discussion
A hearing before a chairman at which procedural arrangements for the hearing are made.

case law
Previously decided cases that establish points of principle; law derived from that source as opposed to legislation.

cast list
A list of the individuals involved in the events on which the claim is based.

chairman
The lawyer who presides over an employment tribunal hearing; see also wing member.

chronology
A list of key events, with dates, in date order.

claim
1. The document by which the claimant starts employment tribunal proceedings. 2. The subject-matter of the claimant’s case.

claimant
The individual who brings the claim to the employment tribunal. (The old term, still in occasional use, was ‘applicant.’)

comparator
In a discrimination case, the claimant may say that the employer treated someone else more favourably than him or her in comparable circumstances. This other person is referred to as the comparator. Comparators may be actual or hypothetical: often the allegation is not that a real other person was better treated, but that another person with the same characteristics as the claimant except for his or her race (or sex, or religious belief, etc) would have been better treated.

conciliation
The attempt (usually by ACAS) to bring about a negotiated settlement of the claim.

consolidate
To link two (or more) related cases so that they are heard together.

constructive dismissal
Resignation in response to a fundamental breach of contract by the employer, which is treated as dismissal for the purposes of unfair dismissal protection. Compare actual dismissal.

contributory fault
Culpable conduct by an employee that has contributed to his or her dismissal, relied on as a reason to reduce compensation.

costs order
An order that one party should pay the other a sum of money representing some or all of the legal fees that the second party has incurred in the case (expenses order in Scotland). See also preparation time order.

COT3
The form on which an ACAS officer records a settlement.

cross-appeal
An appeal brought by the respondent to the main appeal. In other words, if one party appeals to the EAT, the other party can, if it is also dissatisfied with some aspect of the decision, put in its own appeal in response: that is a cross-appeal. If both parties want to appeal, who ends up as the appellant bringing the ‘main’ appeal and who ends up as the respondent, also cross-appealing, is a matter of pure timing. You will be the appellant if you get your appeal in first.

cross-examination
Questioning of a witness in order to undermine the case of the party who called the witness, or to discredit the witness’s evidence.

culpable
Deserving blame.

declaration
A remedy that may be given by a court or tribunal. A declaration is a formal, binding statement about the legal rights of a party.

direct discrimination
Treating a person unfavourably on a prohibited ground, for example, because of his or her race, sex, etc. See also indirect discrimination.

directions hearing
The old term for a case management discussion.

directions
Orders issued by the tribunal as to the procedural aspects of the case – for example, as to disclosure of documents, exchange of witness statements, bundles of documents, etc.

disclosure
The process by which one party tells the other party what relevant documents it has, and/or provides copies of them.

discovery
The old term for disclosure.

discretion
A decision-maker is said to have a discretion if it has a choice between different courses of action that is not governed by a fixed rule but instead requires consideration of all the circumstances. For example, a tribunal that has found that an employer has made unauthorised deductions from the claimant’s wages must order the employer to pay the sum deducted – it has no discretion as to whether or not to do so. By contrast, a tribunal that considers that a claimant’s case was misconceived has the power to order him or her to pay some or all of the respondent’s costs: but it has a wide discretion whether to make a costs order, and if so how much to order the claimant to pay.

discrimination by way of victimisation
Treating an employee unfavourably because he or she has made a complaint of discrimination (or helped another person to do so). For example, it is discrimination by way of victimisation to dismiss a woman because she has complained of sex discrimination. To an employment lawyer, ‘victimisation’ is a technical term meaning this kind of discrimination. Hence a claim that uses the word in its non-technical sense of bullying or harassment is likely to prompt a request for additional information seeking confirmation that no form of discrimination is alleged.

distinguish
An argument that the tribunal need not follow a previously decided case because it is different in some material respect from the case before them is referred to as distinguishing the earlier case: see paragraph 1.35.

effective date of termination
The day on which the employment terminated, often important for calculating time limits for presenting a claim.

Employment Appeal Tribunal
The body that hears appeals from the employment tribunals.

ET1
The form (otherwise referred to as the claim) by which the claimant starts tribunal proceedings.

ET3
The form (otherwise referred to as the response) on which the respondent responds to the claim.

evidence
Material – whether pieces of paper, computer files, photographs, CCTV footage, objects or the testimony of witnesses – that helps prove one side’s case or the other.

evidence in chief
The main body of evidence given by a witness – usually by way of a witness statement – before cross-examination by or on behalf of the opposing party.

examination in chief
Asking questions of one’s own witness.

expeditious
prompt

extempore
Reasons or a judgment are said to have been given extempore if given straight away at the end of the hearing; compare reserved.

floating
Sometimes, on arrival at tribunal on the hearing day, the parties are told that the starting time for their hearing has not been fixed but that their case will be heard once a tribunal or chairman becomes free. In this situation the case is said to be floating.

further particulars
The old term for additional information.

hearsay evidence
Evidence given by a witness of a statement made by another person, given for the purpose of establishing the truth of the statement.

index
In the context of litigation, ‘index’ is likely to mean a page at the front of a bundle that lists the documents included in the bundle, with page numbers if the bundle is paginated.

indirect discrimination
In general, applying a rule or practice that is on its face neutral as between different groups, but that imposes a disproportionate disadvantage on members of one race, sex, etc. Applying the same minimum height requirement to male and female job applicants, for example, would usually be unlawful on grounds of indirect discrimination, unless justified by the requirements of the job. Where discrimination is prohibited, indirect discrimination is prohibited unless unlawful.

inference
A conclusion drawn from established facts.

interlocutory
Preliminary and/or procedural.

issues
The questions on which the parties disagree, and which the tribunal will have to adjudicate on.

judgment
The tribunal’s final determination of an issue or the issues in the case.

lawyer
A lawyer is anyone who makes his or her living by being expert in the law: barristers, solicitors and law professors are all lawyers.

leading question
A question that indicates the answer expected. Leading questions are generally allowed in cross-examination but not – except on uncontroversial matters – in examination in chief. Hence, representatives may be told by the tribunal not to ‘lead’ their own witnesses.

Legal Services Commission
The body that administers public funding for legal advice and representation.

legalese
Unnecessarily obscure or pompous language used by lawyers to enhance their importance/mystery/fees.

legislation
Law that is set out in Acts of Parliament or regulations (or European Instruments) as opposed to being derived from previously decided cases.

liability
What courts or tribunals have to decide is often divided into questions about liability – that is, whether a legal wrong has been done to the claimant – and questions about remedy – that is, what is to be done about it.

limitation period
The period within which a claim must be brought.

liquidated damages
A sum agreed between the parties to a contract to be payable in the event of breach (or a certain defined breach) by one party, provided that the sum represents a genuine attempt to value the loss or damage that would be caused to the innocent party by the breach. If it is simply an arbitrary sum intended to coerce full compliance with the terms of the contract, then it is a penalty clause and unenforceable.

listing
The process of fixing a date for a hearing.

misconceived
Having no foundation, or no reasonable prospect of success.

mitigation
The process by which a claimant reduces the amount she has lost (by reason of dismissal, discrimination, etc) by her own efforts – for example, by getting another job.

notice of appearance
The old term for the response or ET3.

open
Correspondence or a meeting is said to be open if it is not without prejudice.

order
An instruction by the tribunal that requires a person or party to do something.

organogram
A chart showing an organisation’s structure.

originating application
The old term for the claim or ET1.

paginated
With page numbers – so a ‘paginated bundle’ is a bundle whose pages have been numbered.

party
A claimant or respondent: the persons whose rights and obligations are to be decided in the proceedings.

penalty clause
A clause in a contract that imposes a disproportionate financial penalty on one party for breach of the contract in order to coerce that party into strict compliance: for example, a clause in a contract of employment that provided that an hour’s pay would be docked for every five minutes by which the employee arrived late. Penalty clauses are unenforceable, but see liquidated ¬damages.

pleadings
The old term for statements of case.

postponement
Putting off a hearing to another date.

precedent
1. A decided case that establishes a point of principle to be followed in other cases in the future. 2. A document intended as an example of how to draft documents of the particular kind demonstrated.

pre-hearing review
A hearing that takes place before the main or substantive hearing, usually before a chairman alone, in order to decide preliminary matters.

prejudice
Disadvantage. Exercises of the tribunal’s case management discretion – e.g. whether or not to postpone a hearing – will often depend partly or wholly on the ‘balance of prejudice’ between the parties. For example, whether the disadvantage to Party A in having the hearing put off is greater or less than the disadvantage to Party B in having to go ahead without a particular who cannot attend on the date originally set.

preparation time order
An order that one party pay the other a sum of money representing the time they have spent preparing the case, available in place of a costs order if the receiving party has not been legally represented.

privilege
A document is said to be privileged if it does not have to be disclosed to the other party despite being relevant. The rule that the content of without prejudice negotiations must not be disclosed to the tribunal is also a variety of privilege.

pro bono
Short for ‘pro bono publico’ (Latin): for the public good. Where a lawyer is acting pro bono he or she is acting without charging the client a fee.

promulgate
Legalese for ‘send out’.

protected act
An act by an employee or worker in relation to which there is statutory protection from being dismissed or subjected to a detriment at work by reason of having done it. Some examples are: refusing to work more than the hours permitted by the Working Time Regulations; refusing to work on a Sunday in certain circumstances; doing jury service; making a statutory request for flexible working.

protected disclosure
A disclosure made by an employee for which, by virtue of the Public Interest Disclosure Act 1998, she must not be dismissed or subjected to a detriment.

quantum
Latin for ‘how much’, used as legal shorthand for the amount that the claim is worth. See also liability, remedy.

questionnaire
A list of questions that a claimant or potential claimant in a discrimination case can serve on the other party.

re-engagement
A remedy for unfair dismissal: the claimant must be re-employed in a job comparable to his or her old job.

reinstatement
A remedy for unfair dismissal: the claimant must be given his or her old job back.

remedy
What the claimant gets from the respondent if she is successful in her claim. By far the most common remedy awarded by employment tribunals is compensation, but other remedies are available in some cases: for example, a declaration, reinstatement or re-engagement.

repudiation
Fundamental breach of contract: an employer or employee who has acted in fundamental breach of the contract of employment is said to have repudiated it.

reserved decision
A decision that is not given on the day of the hearing but at a later date.

respondent
1. The party against whom a claim is made. 2. In an appeal, the party resisting the appeal.

response
The respondent’s answer to the claim.

review
The process by which the tribunal may revisit its own decision and, if it thinks fit, revoke or vary it.

serve
If a document is required to be ‘served’ on someone, it must be sent or given to them.

skeleton argument
A written summary of the arguments that a party will put forward at a hearing.

solicitor
A solicitor is a lawyer who advises and/or acts for members of the public or organisations in the conduct of litigation, transactions, and other matters on which legal assistance is required. If you want someone to write letters on your behalf threatening legal action, negotiate for you, draft your claim to the employment tribunal etc., you are probably looking for a solicitor. More information about solicitors and how they work can be had from the Law Society. See also barrister,
lawyer.

statement of truth
An assertion, contained in a witness statement, that the contents of it are true.

statements of case
In the employment tribunals, the claim and response (often still referred to as pleadings).

statute
Another term for an Act of Parliament.

subject access request
a request under the Data Protection Act 1998 for personal data.

submissions
The points made by a party or his or her representative to persuade the tribunal to find in his or her favour.

substantive
Relating to the substance of the claim, rather than to procedural or interlocutory matters.

‘Tomlin’ order
An order staying proceedings while the terms of a settlement are put into effect.

‘trust and confidence’ term
There is an implied term in every contract of employment that the parties will not conduct themselves in a manner calculated to destroy or seriously damage the relationship of mutual trust and confidcnce that should subsist between employer and employee. This is known as the ‘trust and confidence’ term for short.

victimisation
Subjecting someone to a detriment (including dismissal) because they have complained of unlawful discrimination, or taken some step towards enforcing their right not to suffer discrimination, is defined in UK law as being itself a kind of discrimination, referred to as ‘discrimination by way of victimisation.’ (See also protected act.)

whistleblowing
The familiar name for making a protected disclosure.

wing member
An employment tribunal is made up of a chairman, who is legally qualified, and two wing members. The wing members need not be, and are usually not, legally qualified, but they will have relevant experience, for example, as trade unionists or personnel managers.

without prejudice
The phrase used to indicate that a letter or conversation is directed to achieving a settlement and is therefore not to be disclosed to the tribunal.

witness statement
The written account of the evidence given by a witness. In England and Wales it forms the basis of that witness’s evidence in chief and may be read aloud by the witness or taken as read. In Scotland, witness statements are not used: evidence in chief is given orally.