Tagged: case management

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Getting phone calls from the Judge

This will rarely happen. Employment Judges only speak to the parties at hearings. Some case management discussions are conducted by telephone, but usually this is through a central conference call system. You will be given a number, and a code, so you can dial into the conference. The other side, and the Judge, will do the same.

Occasionally, however, the Judge will ring both parties directly to start the hearing. You should be able to tell that this will happen, from the tribunal’s instructions. If you are in any doubt, ring the tribunal in advance and ask. The last thing you want is for you to be sat waiting for a call while the Judge is waiting for you on another line.

If you are going to get a direct call, make sure you are prepared. Ensure the tribunal has the correct number for you, and that there won’t be any obvious difficulties, such as your mobile running out of charge.

Finally, do make sure that the Judge has a direct line. It’s a really bad idea to have a busy Judge to ring the number, only to be greeted by “Welcome to FRU. Our Office Hours are 9am to 6pm Monday to Friday. And, by appointment, until 8.30pm on Tuesday. If you need help with your employment case, press 1…”

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The mystery witness

Sometimes employers will dismiss on the strength of information from someone they are not prepared to identify – let’s call him or her X.

What can you do about that? Can you make them call X to give evidence?

The main answer is that you probably don’t need to. Remember that what the ET is mainly interested in, in a misconduct dismissal case, is not whether you actually did what you were accused of – but whether your employer genuinely believed, on reasonable grounds and after an adequate investigation, that you did what you were accused of. So they don’t need to know how convincing they think X’s evidence is. They need to know things like what questions X was asked, what X’s answers were, whether you had a chance to challenge what X said, and so on. That doesn’t necessarily mean that you had to be given the opportunity to question X yourself, or have him or her present at the disciplinary hearing: but you do need to have known in detail what had been said against you, and normally also who said it, so that you can make any points you might want to make in your defence. If X is in fact someone who has a grudge against you, you’d want to be able to tell your employer about that at the disciplinary hearing. If you weren’t able to because you didn’t know who X was, that may make the dismissal unfair.

You can make those points perfectly well without having X present at the hearing. In fact, you might be able to make them better: if X turns up, and turns out to be someone who has no reason to have a grudge against you and whose evidence is convincing, your employer will be able to say ‘Go on then. Make the points you’d have made at the disciplinary hearing now.’ If you’ve nothing much to say, your employer can then argue that even if it wasn’t fair not telling you who X was, they’ve now demonstrated that it wouldn’t actually have made any difference if they had told you.

Of course, if you’re convinced that X doesn’t exist at all, you might want to press your employer to call them, in order to demonstrate that. You could write to them and say ‘I don’t think X exists, and that’s what I’ll be telling the ET at the hearing. So if you say he or she does exist, you’d better call them to give evidence.’ And then if there’s still no X at the hearing, you can show the tribunal your letter, and ask the tribunal to conclude that X doesn’t exist.

You could also use the tribunal’s power to direct a party to give written answers to questions to find out who X is: ask the tribunal to order them to tell you X’s name and address. See ¶¶3.26-3.28 of ET Claims for how to do this.

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This is my bundle, there are many like it but this one is mine

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.

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How claims get created

You start with a set of facts that are capable of supporting a claim. For example, you did not get a promotion, because your employer is prejudiced against women. This is less favourable treatment because of your gender, which is the basis for a direct sex discrimination claim.

The tribunal claim is created at the point that you submit an ET1 containing the allegation of discrimination. Until this happens you have not brought a claim.

The only way of creating a claim is to include it in an ET1 (although this can be done by amending the ET1 later, if the tribunal gives permission).

This is important because without a claim in existence the tribunal cannot find in your favour. They cannot decide the claim at all; there is nothing to decide.

Put like this, it sounds obvious. But it is fairly common for people to try to rely on allegations in grievance letters, inter-parties correspondence or witness statements to found a claim. This does not work; if you want the tribunal to decide something, it must be in the ET1.

This does not mean, however, that every fact you want to mention in the tribunal must be in your ET1. The basis of your claim (i.e. that your manager is a male chauvinist who didn’t promote you) must be there, but you don’t need to include every patronising remark he made over the last two years. Much of that detailed material will be brought in at the witness statement stage.

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Maximising Estate Efficiencies

HM Courts and Tribunals Service is currently trying to make more efficient use of their estate (i.e. the buildings they own).

Historically, different courts and tribunals have tended to keep to themselves, with employment tribunals happening in designated employment tribunal buildings; tax tribunals happening in tax tribunal buildings and so on. Most of these buildings contained both hearing rooms and the admin staff dealing with the cases.

This is changing as HMCTS tries to make the system more efficient and less expensive. What this means, at least at the moment, is that some tribunal hearings are being listed away from the tribunal office.

So, if your notice of hearing says ‘Ambridge Magistrates Court’, don’t panic. You have not been somehow misrouted into into the criminal justice system. They’re just borrowing a spare room.

If you are involved in one of these cases it’s worth being a bit careful to avoid embarrassing mistakes. Don’t turn up at the Employment Tribunal office if you’re actually being heard down the road at the Social Entitlement Chamber’s building. And send letters to the Employment Tribunal Office, even if the hearing is happening somewhere else.

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Fast-track unfair dismissal

The employment tribunals have recently moved to dealing with unfair dismissal cases under the fast-track procedure that has been operating for some years in wages claims.

This means that when the tribunal gets a claim for unfair dismissal they set a date for the hearing before sending the claim to the Respondent. The hearing date will be within 16 weeks of the receipt of the claim. So the Respondent will get a letter from the tribunal saying “There is a claim against you, which we enclose. There will be a hearing on date X to decide it.”

This contrasts with the normal procedure, where the tribunal waits for the Respondent to put in their response before setting a date.

The aim is to get relatively simple unfair dismissal cases resolved more quickly. More complicated cases that will need over a day to hear, or those combined with a discrimination claim, will still be listed in the usual way.

There are a couple of practical points arising out of this:

  • Since the tribunal will be listing the case quickly, it makes sense to tell them if you have any unavailable dates when you put in your ET1.
  • Applications for postponements from the Respondent are likely to be fairly common and, given that the date will have been set before they know anything about the claim, will probably be granted provided they are made promptly. The tribunal will aim to list the new hearing within 26 weeks of the date they received the ET1.

The interesting underlying point is that the move indicates that the tribunal thinks that most unfair dismissal cases can be heard in one day. About six years ago this was the normal practice, but listings then began to creep up until the standard listing was two days (this is one of the many things the Statutory Dispute Resolution Procedure gets blamed for).

On the whole, we think this is a good development. Most unfair dismissal cases can be fairly resolved in one day, and a short, early hearing has advantages for both parties. But the change means that time pressure in these cases is likely to increase.

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Booking Interpreters

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.

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Written applications and judicial working conditions

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.

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Notification of an appeal

If an appeal is made to the EAT, they will notify the other side. This, however, is likely to take a little time, because the appeal will have to be processed by the staff there.

It is common to send a copy of their appeal to the other side at the same time at lodging it with the EAT. There is no requirement to do this, but it’s normally a good idea, since scrupulous good manners do no harm.

There are, however, circumstances when you might want to hold off. For example, if there is a chance that the Respondent will pay an existing award before learning of your appeal to increase it, but will become reluctant once they realise that an appeal is being made, you might want to put off the point at which they will learn of it. This is a tad ruthless, but perfectly within the rules.

The flip side of this is that, if you’re making decisions post-tribunal, you shouldn’t assume that the other side hasn’t appealed, just from their silence. If its important to you, ring the EAT who will be able to tell you whether an appeal has been received.