Tagged: case management

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“Legal submissions shall be in writing…”

A standard instruction that turns up from time to time in case management orders goes:

Legal submissions (if any) shall be in writing and accompanied by a copy of any Law Report(s) referred to. Three copies will be required by the Tribunal and should be brought to the hearing.

There are two problems with this: (i) it assumes you know what legal submissions and Law Reports are, despite the fact that many claimants (and quite a lot of respondents) will be representing themselves with no legal advice; and (ii) it’s silly.

What it means

‘Legal submissions’ are arguments about the law and its consequences. So if you say ‘my employer threw a waste-paper basket at me,’ that’s an assertion of fact (true or not). It’s not a legal submission, and it belongs in your witness statement. But if you say, ‘throwing a waste-paper basket at me was a breach of the implied term of trust and confidence in my contract of employment, and that was a fundamental breach entitling me to resign without notice,’ that’s a legal submission. You don’t need to put it in your witness statement, but you do need to say it at the end of the hearing – after everyone’s given their evidence – when you are telling the tribunal why you should win. Telling the tribunal why you should win is called ‘making submissions,’ and the part of that that is about what the law says and why it helps you is ‘legal submissions.’

Law reports are official printed accounts of cases that have been decided in the past, in this context mainly by the Employment Appeal Tribunal, the Court of Appeal or the House of Lords (or Supreme Court as it now is). For instance, if your employer says you didn’t resign because he threw a waste-paper basket at you but because you’d found another job – so it wasn’t constructive dismissal – you may want to remind the tribunal of Nottinghamshire County Council v Meikle [2005] ICR 1. That’s a case in which the Court of Appeal said that a fundamental breach doesn’t have to be the only cause of the resignation for the resignation to count as constructive dismissal, so it would help you to argue your case in this situation.

So the instruction quoted means that if you want to say anything about the law, you must say it in writing, and you must bring three copies of what you want to say to the tribunal; and if you want to rely on any law reports, you must attach copies.

Why it’s silly

It’s silly, because the tribunal doesn’t actually mean it. The tribunal can’t properly stop you making oral submissions on the law if you need to, and they won’t try. It’s true that if you want to make a legal point that is at all complicated, it’s a good idea to make it in writing. But often you won’t. Many cases will run from beginning to end without any significant dispute about what the relevant law is: the dispute is about who did what, when and why, and whether it was fair. But minor questions of law may well come up unexpectedly, and both parties will certainly be allowed to say their piece on them.

The advice to bring 3 copies is unhelpful, too, because if you do decide to do some written submissions, you will actually need to take 5 copies with you: 3 for the tribunal, one for you, and one for the other side.

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Agenda for a case management discussion

A standard agenda for case management discussions is being piloted by three employment tribunal regions.

If your case is being heard in one of those regions, you will probably be sent it and asked to complete it and send it to the tribunal and the other side in good time before the CMD. But if your case is being heard in one of the other regions, it is still quite a useful check-list of the kinds of things the tribunal is likely to want to discuss at the CMD. And there’s no reason why you shouldn’t use it as the basis for your own draft agenda if you want to.

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Settling cases with multiple parties

Most employment cases involve one claimant and one respondent. But many involve more – multiple claimants, multiple respondents or both.

There are many ways in which this makes things more complicated. One area to be particularly careful of is settlement. It is important to make sure that you understand precisely what you are doing, and that everyone else does too.

Sometimes, one Respondent will want to settle the whole case. In other words, make a deal that covers him, and everyone else. In other cases, a Respondent will settle on the basis that you withdraw against her, but continue against the other Respondents. Sometimes, the Respondents will collectively agree to settle, with everyone being a party to the agreement.

Similarly, where there are multiple Claimants, a Respondent may offer settlement, but only if both Claimants agree. After all, the main point to settling for a Respondent tends to be the opportunity to get rid of the case. Settlement with one of two parties, is therefore much less attractive than settling with both.

All sorts of combinations and deals are possible. So what you want to do will depend on your circumstances. The important thing is to make sure that you, and everyone else, understands what is on the table. And that the written agreement accurately reflect your final deal.

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Rights, remedies, and jurisdiction

Having a right, for example the right not to be unfairly dismissed, or to have reasonable adjustments made to your disability, is one thing. But on its own, it is not worth much.

The best way of explaining why is a worked example:

s94 of the Employment Rights Act 1996 creates the right not to be unfairly dismissed. It does this simply enough, by saying in effect ‘An employee must not be unfairly dismissed by his employer.’ This right is then explained and detailed in the rest of the ERA.

But on its own, this really doesn’t do anything. You may have a right, but what happens if it is breached? What, in other words, is your remedy?

This is set out in some of the later sections of the ERA, s112-126. These set out the basic and compensatory awards – as well as the various re-employment orders that might be made

So this far, you have both a right and a remedy. But even this isn’t enough. You need a way of getting your remedy. Otherwise your employer could say “Yes, you should not have been unfairly dismissed, and I should pay you compensation – but what are you going to do about it?”

The answer, of course, is that you are going to go to an employment tribunal. But if you are to do so, the tribunal must have jurisdiction. That is to say, it must have the legal power to deal with your claim. That’s set out in s111 ERA, which tells us ‘A complaint may be presented to an employment tribunal against an employer by any person that he was unfairly dismissed by the employer.’ Without s111, the tribunal wouldn’t be able to hear any unfair dismissal claims. And because it says that unfair dismissal claims will be heard by the employment tribunal, they cannot be dealt with by another court. If you tried to bring an unfair dismissal claim in a County Court, it would be rejected, because the County Court does not have jurisdiction.

All this is important, because there are traps for the unwary. You must not assume that, just because you have a right, you are entitled to compensation in a particular way or that you will be able to bring a claim to the tribunal.

For example, the Working Time Regulations 1998 contain a right that you will not have to work more than 48 hours a week (unless you agree in writing to opt-out) and that night workers do not have to work more than eight hours at a time. But there is no entitlement to compensation if these rights are breached and you cannot bring a claim to the employment tribunal about them. They are enforced by the Health and Safety Executive, and various other Government agencies.

For each claim you bring to the tribunal you must have some idea of what compensation can be awarded, and where the tribunal’s jurisdiction comes from. Otherwise you may be caught out: at best, you’ll have have wasted your time, and at worst you may have missed the chance to bring your claim in the correct forum, or risk an order that you pay the other side’s costs.

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What’s a Scott schedule?

Tribunals occasionally ask the parties to prepare a thing called a ‘Scott schedule.’ This sounds very technical, but all it means is a table setting out certain information about the claim. It could take a lot of different forms, depending on the kind of thing in dispute, and it could be short and simple or long and complicated. Often a table in a Word document will do; sometimes it will be easier to use an Excel spreadsheet. (So far as I’ve been able to discover, it’s named after a judge who first came up with the idea.)

This will be clearer in the context of a couple of examples.

In a complicated discrimination case, you might be asked to set out in a table each act of discrimination you are complaining of, with its date, the people involved, when you raised a grievance about it, and whether you say it was direct discrimination, harassment, victimisation or indirect discrimination. So in that case, your table would have 5 columns, headed respectively: ‘Incident,’ ‘date,’ ‘people involved, ‘date of grievance,’ ‘nature of claim.’

If you are complaining of failures, on a number of different occasions, to pay you commission to which you were entitled, you might be asked to set out in a table each month for which you say you were underpaid, the total value of the business you say you should have been given credit for, the clients concerned, the amount of commission you were paid, and the amount of commission you say you should have been paid.

If you’ve just been told to prepare a Scott schedule but not what information to put in it, you haven’t been given intelligible instructions at all. Ask for an explanation.

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… as we forgive those who trespass against us

Sometimes you really have to complain to the tribunal about how the other side has behaved – in order to ask for costs, for instance, or to explain your inability to do something you are supposed to have done. But don’t be too trigger-happy, especially about minor things. There are a lot of pit-falls in litigation, and you may find yourself in need of the tribunal’s or the other side’s indulgence at some point. If you’ve thrown a hissy fit every time the respondent has done anything a little bit late, or vaguely careless or annoying, you’ll find them much less sympathetic when it’s you having difficulty complying with a deadline or getting your witnesses to the tribunal at the right time.

This is a particular instance, of course, of the general rule about only fighting the battles you actually need to fight in order to win the case.

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Ignore the soft fruit

Imagine an enemy posse rushing towards you. They are dressed in bizarre and elaborate costumes, including papier mache horns, cardboard armour and joke-shop Dracula fangs. Some are brandishing pillows in a threatening manner; others are armed to the teeth with a variety of soft fruit. One has a pointed stick. All are yelling abuse.

Faced with this threat, what do you do? Wrestle them for their cushions? Rugby tackle them, pin them down and try to de-fang them? Yell abuse back, but louder? Ambush them for their fruit and make a summer pudding? Or do you focus all your attention on the threat posed by the pointed stick?

The answer may be obvious – but it is surprising how willing parties to litigation are to be distracted into squabbles that have no chance of determining the outcome of the case.

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Personal Problems

From time to time issues unrelated to the litigation will affect the running of a case. Employment tribunals are particularly prone to this, since most stem from an employee losing their job, which tends to impact many areas of life.

If this happens, you will probably have to offer an explanation, either to support amending case management directions or to justify having failed to comply with them. When you are doing this it is important to explain what if going on and what problems it has caused. Simply saying “I’m having a personal crisis” or something similar will not be effective. The tribunal will want to know the nature and scope of your crisis.

This can be embarrassing and difficult. It is not nice to have to discuss your personal life with the tribunal, or with the respondent. But if you want the tribunal to take it into account, you must tell them what is going on.

This does not mean that you must, or should, share all the gory details. A brief, factual summary of the issue is likely to be the best approach.

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Two letters or one?

People sometimes feel that any letter they write must fall within a recognised category, and must not venture outside that area. In other words, if they want to request disclosure and deliver some witness statements they feel they should write two different letters.

This is probably the fault of people who write books including examples of letters neatly divided up.

The basic idea is good. It is best to separate out issues and deal with one thing at a time. There is, however, no need to write two letters. Just use headings to split up the different subjects.

The exception to this general rule is letters about settling the case. Since these are without prejudice they cannot be shown to the tribunal. This can become complicated if you need to rely on the part about witness statements. To avoid this problem it is better to send two letters.

But you can put them in the same envelope.

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Read the small print

When the tribunal grants an application or makes an order, make sure that you understand exactly what is being said. It is easy to look at the general thrust of the order and miss subtle, but important, details.

This is good advice generally, but it is particularly important when the tribunal is, at first glance, doing what you have asked. Do not assume that, because the tribunal has made the sort of order you wanted, that they have done so in the way you wanted. Make sure that you catch any modifications or conditions they have added.