It is impossible to overemphasise the importance of the bundle to employment tribunal proceedings. But I shall try.
It is the alpha and the omega, the first and the last; the ying and the yang; the land, the sea, the air and the earth. If this sounds like rather mystical talk for an employment law site, it is. But I am struggling to express the true importance of the bundle.
Unless everyone in the room has a copy of the same indexed, paginated set of all the relevant documents all other action becomes difficult or even impossible.
You can’t give evidence, because nobody can look at the documents that you are talking about. You can’t cross-examine, because it’s impossible to confront the lying witness with the incriminating email. You can’t make submissions, because the subtle point of contractual construction you wish to present won’t be understood by a tribunal who cannot read the contract.
If there is no bundle the very best that you can hope for is that everyone will somehow struggle through by sifting through piles of paper and passing documents around. Even if the tribunal lets you get away with this — and most won’t — it will be a unpleasant, frustrating experience.
Even a bad bundle — one that is incomplete or poorly organised — makes things surprisingly difficult. Almost everything you do in a hearing involves the bundle, and if it is difficult to use, everything is just that little bit harder.
Turning up with no bundle, or a bad one, will also annoy the tribunal. This is understandable. They have a demanding and difficult job to do; they want to get on with it. If there is no bundle, their ability to do so is crippled and their time is wasted.
This means that it is vital that that you make sure that there is an appropriate bundle prepared for the hearing and that there are sufficient copies of it. You need at least six — three for the tribunal (unless a judge is sitting alone), one for the witness table, one for yourself and one for your opponent.
Normally, the tribunal will have issued orders about the disclosure of documents and bundles. If everyone follows them all will be well.
But things don’t always go smoothly. It may be that the respondent is uncooperative or you take on representation close to the hearing to find that nothing has been done.
In that situation, you need to try hard to get things sorted out. If you haven’t disclosed documents, do so as soon as possible and offer to prepare the bundle (or a new bundle, if necessary). If it is the respondent holding things up, chase them.
If the respondent is uncooperative, tell them what you’re proposing to do, give them a chance to respond or contribute, and then if they don’t respond usefully, do what you have proposed For example, write saying something like “I have sent a number of letters trying to agree a bundle, but I have not had a reply. Unless I hear from you in the next seven days, I will assume that you agree to the proposed index I sent with my last letter.” Then, if you don’t get a reply, you produce the bundle according to your proposed index and send a copy to the Respondent.
The position you want to get to is that, if a grumpy tribunal judge starts in at the beginning of the hearing with “Where is my agreed bundle? Why haven’t the tribunal’s orders been followed?” you are safely on the moral high-ground, having done everything you can to get a sensible bundle ready. If you have succeeded, the hearing has a better chance of going ahead smoothly; and if you haven’t, at least it should redirect the judge’s irritation to the other side where it belongs.
There is a deeper lesson in all of this. We like to think that legal practice is all about our rhetorical eloquence, searching cross-examination and incisive legal analysis. And so it is, on a good day. But it is also about making the nuts and bolts of the process work. Until you have done that, you can’t hope for a good day.